Q. If a board chooses not to conduct a criminal background check on either a prospective employee or purchaser, could the board and/or board members be liable if that person commits a crime or other misdeed against the property or residents and it comes out that they had a history of such behavior?

                                —Worried about Liability

A. “Unlike landlords, board members have little authority to screen and/or otherwise select which individuals are permitted to reside on condominium property,” says Dillon Brown, junior partner at Marcus, Errico, Emmer & Brooks in Braintree, Massachusetts. “Such prohibition derives primarily from the courts’ extreme reluctance to place restrictions on owners’ ability to convey their own units. For that reason, governing condominium documents which include provisions subjecting unit sales to the board’s prior review and approval are almost certainly unenforceable as a matter of law. 

“The only notable exceptions apply when board members are granted a right of first refusal to purchase a unit and/or where the Association owns a unit that is leased to residential tenants. In particular, when exercising a right of first refusal, the Association elects to purchase the unit from an owner for at least (if not more than) the tendered offer price. However, board members are unlikely to exercise such right and incur the significant Association expense of purchasing a unit solely for purposes of preventing a prospective purchaser with a poor criminal history from residing on condominium property. 

“Thus, such vetting practices are almost exclusively performed by board members when the Association owns a rental unit. Specifically, whether the unit was purchased, retained, and/or otherwise acquired by foreclosure, before the leased premises are rented, board members and/or property management may require prospective residents to complete rental applications, which provides the Association with the information necessary to conduct both credit as well as criminal background checks to confirm fitness for occupancy. 

“Screening of such applicants is perfectly permissible provided that the practices are implemented consistently. For example, if the board and/or property management conducts a criminal background check on one applicant, but not others, and that application is subsequently rejected, such rejection could expose the Association to a potential discrimination claim. “Likewise, rejecting rental applications based on criminal history alone could also, in and of itself, be deemed a discriminatory act. More importantly, should the board and/or property management conduct a criminal background check, which discloses the applicant’s criminal history, and the unit is thereafter rented to the tenant, such decision could also subject the Association to liability and damages. 

“The same sentiment applies to the hiring of condominium employees. For example, if an applicant with a known, violent/dangerous criminal history is approved by the board and/or property management to reside or work on condominium property and that individual subsequently harms another resident, the board’s (as landlord) screening practices could be deemed negligent, resulting in the Association being found responsible for any resulting injuries. 

“Ultimately, when the vetting of applicants is called into question, boards and landlords are held to a reasonableness standard. Therefore, while board members absolutely owe a fiduciary duty to the Association and must address immediate threats that jeopardize the health and safety of condominium residents, criminal background checks of prospective applicants must be conducted in a consistent and non-discriminatory matter to avoid future liability.”