Banning People with Criminal Records from Condominium Residence

I recently wrote that US Home Owner Associations wield an inordinate and improper amount of ability to pry into the private life of purchasers. Potential purchasers providing inch think stacks of documents to boards, just for the right to purchase a property, seems to becoming (sadly) the norm.

There is a wedge issue would that, if supported, allow Canadian condominium boards the same sort of access to purchaser (and ongoing access to owners) personal information – that condominiums can ban residency and board participation based on a criminal record. Being able to ban on a criminal record would allow boards to start intruding on personal privacy in order to enforce the ban.

Denise Lash of Heenan Blaikie closes in a recent article that –

It is time for condominium corporations to look at taking more extreme measures to ensure that the safety and security of residents is not compromised and put into place restrictions in condominium documentation.  Of course, the documentation will have to be carefully drafted to avoid any potential argument as to its enforceability.

This is a direct call to bring rights of intrusion to privacy into the hands of a board. We all have stories of our boards  with the  powers they currently have abusing privacy, position and status already. Adding additional fodder – and more significantly – responsibilities that are more prone to court challenges and civil suits is a recipe for disaster.

Most importantly, Ms. Lash takes singles out condominiums to go after because they offer an additional level of legislation and rules – the corporation bylaws – as a wedge to invade privacy. At a condominium’s heart is that it is housing. We wouldn’t be able to argue that a community association (single detached housing) could deny the right to residence in their community based on a criminal record – but we do for condominium only because there are additional levels of rules around the management of the shared or common property.

That’s what “extreme” and “carefully drafted to avoid any potential argument as to its enforceability” is all about – it’s the caution that what she suggests is a strong warping of the intention and scope of condominium legislation. I would say she suggests a perversion of condominium legislation and pushes in into a realm of social engineering.

HOA (U.S. Home Owner Associations) Seem To Have Excessive Authority and Privacy Invasion Rights

As I do research for posts, I am finding a lot of stories that refer to HOAs denying the purchase of a unit, as well as demanding all sorts of information from interested purchasers in order to determine if it should deny such purchase.

NYT ran a real estate article about Steve Siddell’s attempt to find a great home in the city. There is one section of the article that caught my attention:

He submitted his application, which included an inch-thick stack of paper, in a neat binder. The co-op board requested 11 more copies …Weeks passed; his frustration grew. After about two months, he was interviewed … A few weeks later, the rejection letter arrived.

This seems both intrusive and abusive. The amount of information required and the type of information, the lack of timeliness in initiating the interview, and lack of timeliness in rejection, and even the right to review the purchaser at all seems, simply, wrong.

As each state has different legislation, there is a multitude of “but that’s not allowed in this state” arguments available but a quick search of the web seems to indicate that board intrusion into private sales seems rampant country wide.

Some states do allow HOA right of first refusal, meaning they can deny a purchaser (without reason) completion of the sale if the HOA itself buys the unit, or can find a replacement buyer at the same price.

While I disagree that such a right should even exist, in states which allow it there is ample opportunity to abuse the system and pry into people’s lives. It opens up all sorts of questions about information that can be requested – and all sorts of strange requests can be built that avoid human rights violations (race, gender, disability, sexual orientation). Many now ask for resumes, job history, references, past addresses, driver licences, social security numbers, credit reports, travel history (in the guise of how much of the year the owner will be onsite), education, marriage status, fiscal equity levels, and tax records (which might show charitable donations reflecting political or religious leanings).

As a kicker – the HOA doesn’t need to generate an explanation why they deny a sale. While racism and sexual preference bias isn’t an allowable right to say no, we know (for example after the 9/11 tragedy, the anti-Muslim expression) that people do act on those feelings. And while they might not be in the position to act on first refusal and buy the unit, they can significantly slow down the review process (say, for months) and the decision (say for weeks) in order to force the purchaser to withdraw their request because of timeliness issues.

In Canada, we have pretty strong privacy laws that would block condominiums – which are set up as not-for-profit corporations – from prying into a purchaser’s life like that.

The sale of a unit is a private transaction between two parties that the condominium has should have no right of access to, and there is no justifiable reason to review the sale and purchaser of a condominium unit.

For those that fear non-payment of monthly condominium contributions – they happen (some buildings have more than 60% delinquency) and have been happening even with new purchaser review. There’s no belief the board is better suited than a bank to determine fiscal ability to pay in the future.

There is no reason for HOAs to pry into the private life of a purchaser.