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Associations with proper tenant approval authority at times are presented with a prospective tenant that is utilizing the federal government’s Housing Choice Vouchers Program, otherwise known as “Section 8.” Many who use Section 8 are great tenants, comply with association rules and care for their rental as well as or better than any self-pay tenant. However, for many legitimate reasons, some associations question whether they can or should prohibit such tenancies in their community.
The Section 8 Housing Assistance Program was developed to provide financial subsidies so that eligible low income families, the elderly, and the disabled could afford decent, safe and sanitary housing in the private market. When a tenant is deemed eligible for Section 8 assistance, the local public housing authority issues a voucher, the tenant locates an apartment or an owner willing to lease under the Section 8 program and enters into a lease with the owner. The tenant usually pays no more than thirty percent (30%) of his or her household income towards the rent. The housing authority also enters into a contract with the owner, whereby the housing authority agrees to pay the balance of the fair market rent.
There is currently no federal or Florida law which prohibits an association from considering a prospective tenant’s financial position as part of its screening criteria, including a tenant’s reliance on Section 8, as long as the association’s criteria is reasonable and is applied uniformly to all prospective tenants. However, associations contemplating this issue should be aware of various ways in which such a denial could put the association on the defensive.
First, in reviewing any prospective tenant, associations must understand that any denial is subject to attack. To survive a challenge of a denial of a tenant’s application, an association must prove that its denial was not arbitrary, but instead was based upon a legal, legitimate and identifiable concern that the proposed tenant would be incompatible with the health, safety and welfare of the community and the community’s members and residents. Certainly, an argument can be made that a tenant’s financial standing is relevant to the association in screening prospective tenants. A tenant’s default in payment of rent to their landlord could compromise the landlord’s ability to pay the association its maintenance fees. And now that both Chapter 720 and 718, Fla. Stat. permit homeowners and condominium associations to intercept rent from a tenant of an owner delinquent in assessments, an association’s interest in the tenant’s ability to afford the rent is even greater. Please note however, that an association’s interception of rental subsidies from the housing authority may be met with resistance, in particular if the housing authority refuses to acknowledge the association’s authority under state law to demand payment of the subsidy, citing federal guidelines requiring it to remit the subsidy to the landlord alone.
Second, both Florida and Federal law prohibit the denial of a tenant because of their race, color, religion, sex, familial status, national origin, age, or handicap, and many local municipalities in Florida have expanded these protected classes to include marital status and sexual orientation. An association’s denial may never be based upon any such prohibited criteria. Absent from this list of prohibited criteria, however, is a tenant’s “economic status” or their “source of income.” That said, there is a growing belief that this type of discrimination, which would include prohibition of Section 8 tenants, should be illegal. This belief has led to thus far unsuccessful attempts to amend the federal Fair Housing Act to include source of income as a prohibited form of discrimination, and the adoption of laws in several other states and municipalities that prohibit such discrimination. Therefore, changes could be coming that could directly impact this issue. Even absent an express prohibition on this type of discrimination, practically speaking, doing so may be seen as a pretext for discrimination on one or more of the prohibited grounds listed above, such as race, age, handicap or familial status, which could subject any such denial by an association to very strict scrutiny and even the filing of a complaint for discrimination against the association.
Therefore, while there currently may be no clear legal bar to an association prohibiting Section 8 tenants in their community, boards should be fully aware of these potential challenges and practical issues before making a tenant’s Section 8 status a disqualifier for tenancy. In addition, Boards should work with their association attorney to review their association’s governing documents to confirm adequate lease review authority and to establish clear, written, valid criteria for the association’s screening of prospective tenants.
This Blog was prepared by Jennifer M. Sinclair, Esq. of Taylor & Carls, P.A. The information contained herein should not be acted upon without professional legal advice. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise of subsequent changes in the law.
The firm of Taylor & Carls, P.A., with offices located in the Orlando area, Tampa - St. Petersburg area, and Northeast Florida (Jacksonville/St. Augustine/Palm Coast), was founded in 1981 and has practiced in the area of community association law since that date. The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.