Can the Association check credit scores for prospective owners and tenants?

It is not surprising in today's economy that more and more boards are asking if they can check credit scores to determine whether or not a potential purchaser or potential renter in their community has the financial resources to meet their financial obligations to the community after moving in.

As with any other restriction or board action, the first step is to determine the source of such authority and whether it is statutory or documentary (Florida Statutes or Condo Docs). The Florida Statutes do not allow the Board the right to check credit scores for potential purchasers and renters. We must then look to an association's governing documents to determine if such authority is allowed to the board.

Let's take the best case scenario (for a board wishing to do this) that the association's original recorded governing documents contained the right to check credit scores. The board in this situation would still need to obtain the consent of the potential purchaser or renter to check his or her credit, since any time a credit inquiry is made, the persons score is affected slightly. A board that makes such an inquiry without first advising the subject that such action will be taken and getting consent to do so exposes itself to great liability. Most boards and management companies choose to include a form along with the screening application that must be signed by the applicant acknowledging and consenting to a credit check.

Even if all of the above is properly handled a board still has a complicated issue with which to contend when the credit report comes back negative. First, is a low score really indicative of the person's current financial situation or is it the result of a life event such as a job loss, divorce, or illness? Moreover, some people fail to build up high credit scores because they don't like credit! These are the folks who don't have 10 credit cards, don't demand high limits on the ones they have and pay for most things in cash. This might actually be a desirable resident!

If the low credit score is truly indicative of a person who will be unlikely to meet their financial obligations after moving in, it is essential to speak with your association attorney to ensure that the association's governing documents allow you to reject an application based solely on such information found on a credit check. To add further, even if the governing documents allow for such action by the Board it does not always mean that a court will uphold it in the event of a challenge. A knowledgeable community association attorney can walk you through this and be sure to limit the Associations and Board Members liability.

Now, if the Board is considering an application for purchase, you should take into consideration that the lending institution (mortgage company or bank) will more than likely have already done a very thorough credit history check on the prospect, probably even more thorough than any the Association will have done.

One last thing you should think about when pondering whether or not it is necessary or even desirable to check credit scores for potential new association residents: how many of your long-term residents' would be disapproved if you checked their credit scores today!?


Excerpts taken from Donna Berger, Esq.