What About Those Background Checks?

By Ryan D. Poliakoff / Published December 2016

Q

uestion:

We got a newsletter from the board president which states, “If you have a guest who is spending more than a week in your home, he or she needs to go through the process of a background check. If you have a relative who is going to be spending a couple of weeks in your unit, and it is not technically a lease…he or she needs a background check…a background check protects the community from having a convicted felon moving in or hiding out in our community.”

When challenged at a BOD meeting regarding this draconian approach, the president said that when a guest or family member steps outside they are on common property, and therefore they put the entire community at risk. My sister visits for two or three weeks in February, and our grandchildren visit for two weeks over their holiday vacation, so according to the president they will be subject to a background check. What is the legality of this vetting of guests and relatives? This poses a serious issue as it infringes on our Constitutional rights.

Answer:

Your question raises two separate issues. First, does your board have the power to require these background checks? Second, once they get information on someone’s background—particularly their criminal history—what can they legally do with such information?

Let’s start by addressing the issue of your “Constitutional rights.” The Constitution of the United States establishes certain rights that cannot be infringed upon by federal, state, or local governments. Private parties, however, are granted far more latitude. For example, the government cannot infringe upon your freedom of speech, but you have the legal right to enter into a confidentiality agreement that restricts that freedom. Or, the Constitution guarantees freedom from unlawful searches and seizure, but your employer can require you to take random drug tests, for any or no reason.  So, I doubt the Constitution is applicable.

As I’ve discussed in a recent column, a community association only has the powers that are granted to it in the governing documents (particularly the declaration of covenants or declaration of condominium). Any restrictions found within these governing documents are afforded a broad presumption of validity, and they are rarely overturned. The governing documents also may grant the board power to pass rules and regulations, and these rules are judged on a reasonableness standard.

  The first question, therefore, is the derivation of these rules. If there is express language in your declaration stating that all persons residing in the community for more than a week must submit to a background check, it’s likely that this policy is enforceable. But, since these appear to be new policies, we can assume that they are instead rules that were established by the board. In that case, you need to review the governing documents and see how broadly the board’s rulemaking authority is defined. Do they have broad general powers to promulgate rules for the benefit of the health, safety, and welfare of owners and residents (as is common)? If that is the case, then the board likely has the right to pass these rules. The final piece of the analysis, then, would be to determine whether a rule requiring residents to submit to background checks is reasonable—because all board-made rules must be reasonable to be enforceable.

I think it would be fairly easy for the board to justify requiring background checks of all long-term residents. It is a common policy within shared ownership communities, and the board has a legitimate interest in protecting its residents against certain types of potentially dangerous individuals, such as registered sex offenders.

The broader question, however, is, what can the board realistically do with the information it obtains? All information obtained in a background check is confidential, and so the board cannot notify owners every time a person with a criminal record moves into the neighborhood. Further, I do not think it would be reasonable for the board to pass a rule prohibiting felons from living in the community. There is ample analysis and case law that stands for the proposition that a person’s prior criminal history is a poor predictor of future bad acts. A covenant expressly stating that a felon may not reside in the community might be enforceable, but then there would be fair housing concerns, as, statistically, minorities tend to be adversely and disproportionately affected by criminal history restrictions. It is only a matter of time before many if not all criminal background restrictions are invalidated by the courts as a violation of the Fair Housing Act. So, we are left with your board performing background checks on residents, but being legally unable to take any action if they were to find something in the background that gave them cause for concern.

Requiring background checks of residents remains a universally popular policy among condominiums and homeowners associations. Increasingly, however, these restrictions become less relevant and more difficult to support. I counsel clients who want to perform background checks and restrict certain types of felons from living in the community to tailor those restrictions as narrowly as possible (limited to violent felons, for example, or persons convicted of crimes against minors), and I make sure they understand that the enforcement of any such ban is far from certain. 

Ryan D. Poliakoff

Partner of Backer Aboud Poliakoff & Foelster

Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at rpoliakoff@bapflaw.com. For more information about his firm, visit www.bapflaw.com.