My brother in law is in the process of buying a home on the outskirts of Orlando. There is a homeowners association in the neighborhood with dues being approx $100 per month. He is less than two weeks from closing and all inspections, loan apps, and the mountain of paperwork has been completed. He is just waiting on the closing date.
Today he received notice that he has to pay $25 to the homeowners association for a criminal background check. He has no criminal history so it is no big deal, but it got me to thinking. What if he did have a criminal history? Could a HOA stop him from buying a house there? If so, what about all the money he has spent thus far towards the purchase? Does a HOA have the authority to order a criminal history check?
I read through Chapter 720 and didn’t see where they have the right to ask for a background check or could block a sale. Does he have a copy of the CCR?
The second paragraph in this answer may help.
He may need the advice of a real estate attorney, although from a practical standpoint that will cost more than paying the $25. IANAL but I would balk at being asked to do that just on principle unless there were a contingency in the contract for it. I do not know if something like that stated in by-laws constitutes a de facto contingency, and as **Pai325 **says he should have a copy of all the by-laws, rules and regs in hand, usually required some specific number of days before settlement (depends on the state).
It’s all those “if” and “depends on” things that you need a lawyer to answer.
If the HOA is this “friendly” to a person just trying to join their “club”, what kind of crap do they do to the poor schmucks IN the “club”?
First thing I tell a RE agent: “No HOA. Period. End of discussion”.
At the very least: is this a new development? What percent of the units are Owner-Occupied?
It varies by State, but, for new developments:
Until X% of units are sold, the HOA Board is the Developer/Owner.
During this period, the dues are paid by the developer, and the seller always wants the HOA Dues to look small.
Once an outside audit is done, the buyers learn that the Dues are not even close to high enough to pay for maintenance.
There’s wide variation in what HOAs are responsible for, though. I live in a community with an HOA, but as far as I know it has nothing to maintain except one vacant lot.
In order to answer the question of what your brother owes, if anything, to the HOA, you have to check what documents he has signed relating to the HOA.
I despise HOAs, not just for their nosiness and stifling of homeowner rights (even if these are self-inflicted wounds), but because they’ve polluted the meaning of HOA.
It rightfully stands for Herb Oscar Anderson, famous WABC deejay.
I’m an attorney licensed in Florida. I do not practice real estate or condominium/homeowner/community association law, and I am not your lawyer or your brother in law’s, and this is not legal advice, blah blah blah.
I’m also a homeowner in Orlando subject to an HOA agreement. As a general rule, the HOA may take reasonable steps to vet a prospective buyer, so long as each step is expressly provided for within the HOA declaration. They may charge a transfer fee, but I’m not sure there is specific authority for the requirement that he pay for the background check (again, unless it’s in the declaration).
[My bolding.] This word, I do not think it means what you think it means. A contingency in contract law means the same thing as it does in real life: it’s condition which may be triggered by the happening of some other event. It’s not just a provision in a contract, which is the sense you seem to be using it in.
It doesn’t really matter what he’s signed relating to the HOA. The HOA covenants govern the sale whether he signs them or not.
Thanks for the replies. This is an older development called South Port. It used to be a military base with the houses built in the 40’s. It is not upscale, but (I am told) it is decent enough especially for a single guy with no kids. The HOA mows the lawns, paints the houses every so many years as well as re-roofs every so many years. Again the background check is no big deal but it seems to me he should have been notified of it before this stage in the buying process. So, would the HOA have to spell out what level of offense would exclude someone? I can see where a sex offender or a felony drug conviction might be excluded, but what about the guy who has a misdemeanor theft conviction, say, 10 years ago…or someone with a DUI conviction?
Wow. It’s right by the airport - which makes sense, since that was the AFB. Isn’t he worried about noise?
Assuming the background check requirement is in the buyer’s declarations, he was constructively notified of it before now. Here’s the thing, though: the seller is responsible for ensuring that the HOA’s requirements are met.
Perhaps I am not using the right language, although here is a source that defines this usage and a law firm that also uses it. In my limited experience as a real estate buyer and seller (just my own homes), I understood there to be certain clauses in the contract, for example, I as a buyer would conduct a building inspection on the home and the contract was dependent upon satisfactory results of the inspection; another common clause would be that the contract requires the buyer’s being able to obtain financing. Are those not called “contingencies”?
What I was trying to say was that even if the contract does not explicitly state that the HOA must first approve a buyer based on the results of a background check, that the HOA by-laws may have such a statement. And if the by-laws have such a statement, does that effectively act as a requirement to be able to fulfill the contract, even if the contract does not say so?
Yes, those are contingencies. “The buyer must undergo a background check” is not a contingency because it is not contingent on anything. But I see what you meant, now - the sale is contingent on HOA approval of the buyer, which itself depends on the results of the background check. And yes, the HOA declarations would be read into the contract (and will be expressly incorporated somewhere in the sale agreement).