Chapter 719 tells a cooperative board nothing about how to screen an applicant. It supplies no criteria, no prohibited questions, no limits and no procedures. What governs instead is federal and Florida fair housing law, which controls what you may consider, and the Fair Credit Reporting Act, which controls how you obtain and act on a report. Both are outside the statute your board reads, and both carry consequences that Chapter 719 does not.
Screening is where a lawful approval power becomes an unlawful one
A cooperative's power to approve or reject a transfer is broad, and it comes from the documents rather than from the statute. Our guide to cooperative transfer and purchaser approval covers where that power comes from. This guide covers the part that generates almost all of the liability: what the board actually looks at.
The structure of the problem is worth stating plainly. Chapter 719 imposes no screening standard, so a board can adopt almost any criterion it likes. Fair housing law does impose one, so a criterion lawful on its face can still be unlawful in operation if it falls more heavily on a protected group and the association cannot show it is necessary to a substantial, legitimate interest. And the Fair Credit Reporting Act imposes procedures, so an association can comply perfectly with fair housing law and still be liable for skipping a notice.
None of that argues for screening less. It argues for screening the same way every time, from a written standard adopted in advance.
Write the criteria before you see the applicant
Criteria adopted while a specific application is pending will always look like criteria written about that applicant. Adopt them at a board meeting in a quiet month, put them in the application packet, and give them to every applicant with the form.
- Financial standard. State it as a number or a ratio, not as an impression. A minimum credit score, or a stated relationship between verified income and the monthly assessment plus any housing payment, is testable. "Financial responsibility" is not.
- Verification standard. What documents establish income, and what the association will accept in place of them for a retired applicant, a self-employed applicant or an applicant paying cash.
- Accuracy standard. A material false statement in the application is a ground for denial, and say so on the form above the signature.
- Conduct standard. If prior conduct in this community counts, say what counts and over what period.
- Criminal history standard, if any. See below. If the board is not prepared to run an individualized analysis, the safer course is to have no criminal history criterion at all rather than a blanket one.
- Occupancy standard. A number of persons per unit tied to bedrooms and to any applicable local code, applied without reference to the ages or relationships of the occupants.
Then apply them. The single most common way a cooperative loses a screening case is not a bad criterion. It is a good criterion waived once for an applicant the board liked. Our selective enforcement review worksheet runs the same consistency test that a plaintiff's lawyer will run.
What you may ask, and what you may not
| Ask | Do not ask |
|---|---|
| Names and ages of all intended occupants, for occupancy-limit purposes | Whether the applicant has or plans to have children, or the sex of the children |
| Income, employment and source of funds, applied identically to every applicant | Whether income comes from disability benefits, child support or public assistance, as a disqualifier |
| Whether the applicant will keep a pet, and the pet's size and breed where the documents restrict them | Whether an animal is a service or emotional support animal before the applicant raises it, or what the applicant's disability is |
| Whether the applicant needs any accommodation in the application process itself | The nature, severity or diagnosis of a disability, or medical records |
| Prior residence history and landlord references | Country of birth, immigration status beyond what the law requires, primary language, or religion |
| Whether the applicant intends to occupy the unit or to sublease it | Marital status as a qualification, where the documents do not distinguish |
Florida's Fair Housing Act, §§ 760.20 through 760.37, tracks the federal statute and lists race, color, national origin, sex, disability, familial status and religion. Section 760.23 makes it unlawful to refuse to sell or rent, to refuse to negotiate, or otherwise to make a dwelling unavailable on any of those bases, and to discriminate in the terms, conditions or privileges of a sale or rental. Both statutes reach a cooperative's approval decision.
The Fair Credit Reporting Act: three duties that attach immediately
When the association orders a credit report or a tenant screening report, it becomes a user of a consumer report under the Fair Credit Reporting Act. Three obligations follow, and the third is the one boards miss.
- Permissible purpose and certification. A person may not obtain a consumer report except for a permissible purpose, and must certify that purpose to the reporting agency. 15 U.S.C. § 1681b(f). For a cooperative, the purpose is ordinarily the applicant's written instructions under § 1681b(a)(2), or a legitimate business need in connection with a business transaction initiated by the consumer under § 1681b(a)(3)(F). That is why the separate signed authorization matters: it is your permissible purpose.
- Investigative consumer report disclosure. If the screening involves interviews about the applicant's character, general reputation, personal characteristics or mode of living, the report is an investigative consumer report, and the applicant must be given a clear and accurate written disclosure not later than three days after the report was first requested, along with the statutory summary of consumer rights. 15 U.S.C. § 1681d(a). Calling prior neighbors rather than pulling records can convert a routine check into this category.
- Adverse action notice. If the association takes an adverse action based in whole or in part on information in a consumer report, it must give the applicant notice of the adverse action; the name, address and telephone number of the reporting agency, including its toll-free number if it operates nationwide; a statement that the agency did not make the decision and cannot give the specific reasons; and notice of the applicant's right to a free copy of the report from that agency within 60 days and to dispute the accuracy or completeness of the information. 15 U.S.C. § 1681m(a).
The adverse action notice is not the same document as the denial letter, and it is not satisfied by silence. Many screening vendors will issue it on the association's behalf; confirm in writing that yours does, and confirm what triggers it, because the association remains the user.
One more limit worth knowing. Section 1681c(a) restricts what an agency may report. Records of arrest that antedate the report by more than seven years, or the governing limitations period if longer, may not be reported, and neither may most other adverse items older than seven years. Records of criminal convictions are carved out of that limit and may be reported without a time restriction. That distinction is doing a lot of work in the next section.
Criminal history and disparate impact
A criminal history criterion is lawful on its face. It is also the criterion most likely to produce a discriminatory effect claim, because criminal records are not evenly distributed across racial groups and a blanket exclusion therefore falls more heavily on some applicants than others.
HUD's Office of Fair Housing and Equal Opportunity issued Guidance on Application of the Fair Housing Act to the Screening of Applicants for Rental Housing on April 29, 2024. It is guidance and not a regulation, but it is a fair description of how a claim will be framed against your association.
- Distinguish records by nature, severity and how long ago the conduct occurred. An undifferentiated ban is the highest-risk design.
- Do not rely on arrests that did not result in conviction. An arrest is not proof of conduct, and the FCRA independently bars reporting most arrests older than seven years.
- Give the applicant an opportunity to explain, and to present evidence of rehabilitation or of inaccuracy in the record.
- Consider a reasonable accommodation where the conduct is related to a disability.
- Do not penalize an applicant for criminal activity in which the applicant was the victim, including domestic violence, sexual assault or stalking.
- Be equally careful with eviction records and credit history. HUD's guidance treats overreliance on credit history as carrying a significant risk of unjustified discriminatory effect, and notes that eviction records are frequently incomplete or wrong.
For a volunteer board, the practical takeaway is narrow: either commit to an individualized analysis with a written record, or leave criminal history out of the criteria and rely on financial standards, verification and documented conduct. A blanket rule the board cannot defend is worse than no rule.
Familial status, disability and accommodation
Familial status protects households with children under 18 and people who are pregnant or in the process of securing custody. A cooperative may not deny an application, impose different terms, or steer an applicant to a different part of the property because children will live in the unit. Occupancy limits are permissible, but they have to be justified by something other than a preference for adults, and they must be applied to all occupants rather than counting children differently.
Age-restricted communities are an exception, not a default. Section 760.29(4) exempts housing for older persons from the familial status provisions, but only where the community qualifies: solely occupied by persons 62 or older, or intended and operated for occupancy by persons 55 or older with at least 80 percent of occupied units having at least one resident of that age, and in compliance with the federal verification rules. A community that has drifted below the threshold, or that has never conducted the required age verification, does not have the exemption when it needs it.
On disability, three rules govern the application stage. Do not ask whether an applicant has a disability or what it is. Where an applicant requests an accommodation, such as an assistance animal in a no-pet building or a designated parking space, handle the request on its own track and on its own timeline, and do not treat the request itself as a negative. And where the disability and the need are not obvious, the association may request reliable verification of the disability-related need, but not medical records or a diagnosis. Our overview of fair housing in association enforcement covers the accommodation analysis in more depth.
A denial issued while an accommodation request is pending is a difficult set of facts to explain later. Decide the accommodation first.
Records, retention, and who on the board sees what
Section 719.104(2)(c)2. excludes information obtained by an association in connection with the approval of a lease, sale or other transfer of a unit from the records members may inspect. That is a meaningful protection, and it depends on keeping the material segregated from the general official records so a routine inspection request does not produce it.
Chapter 719 sets no retention period for screening files. Keep them long enough to defend a claim, which for fair housing purposes means years rather than months, and then destroy them on a schedule the board actually follows. An application file kept forever in a shared drive with no access control is its own exposure.
- Limit the consumer report to the smallest group that can decide, ordinarily two or three directors or a designated screening committee.
- Report to the full board in terms of the criteria: met, not met, and on which item. The board does not need the score or the underlying report to vote.
- Never discuss the contents of a report in a meeting open to owners, and never attach one to a board packet that circulates.
- Keep the interview notes, the criteria checklist and the decision letter in the same file as the report.
- Document accommodation requests and their disposition separately, and keep any medical or disability-related information out of the general file.
Subleases raise the same issues on a shorter clock, with the added question of who is responsible for the tenant's conduct afterward. See our guide to leasing and subletting a cooperative unit.
Frequently Asked Questions About Screening Cooperative Applicants
Can we refuse anyone with a criminal record?
You can adopt the criterion, but a blanket exclusion is the highest-risk screening rule available because of its discriminatory effect on protected groups. HUD's April 2024 screening guidance expects distinctions by nature, severity and recency, exclusion of arrests that did not lead to conviction, and a chance for the applicant to explain. Either build that analysis or leave criminal history out of your criteria.
Do we have to tell an applicant why we denied them?
Fair housing law does not require a reason on its own, but the Fair Credit Reporting Act does require an adverse action notice whenever a consumer report contributed to the decision. That notice must identify the reporting agency, state that the agency did not make the decision, and tell the applicant about the right to a free copy within 60 days and to dispute the information. 15 U.S.C. § 1681m(a).
Can we limit the number of people who live in a unit?
Yes, if the limit is applied to all occupants without regard to age or relationship and is justified by something other than a preference against children. Tie it to bedrooms and to any applicable local code, put it in the written criteria, and apply it to every application. A limit that counts children differently from adults is a familial status problem.
An applicant asked to keep an emotional support animal in our no-pet building. Can we deny the application?
Not on that basis. Treat it as a reasonable accommodation request, decide it on its own track, and do not let it become a ground for denying the transfer. Where the disability and the need are not obvious, the association may request reliable verification of the disability-related need, but not a diagnosis or medical records.
Our management company runs the screening. Is the association still responsible?
Yes. The association is the user of the consumer report and the decision-maker on the transfer. Confirm in writing which FCRA notices the vendor issues and when, keep the certification of permissible purpose current, and make sure the criteria the vendor applies are the criteria the board adopted.
Are screening files subject to an owner's records request?
No. Section 719.104(2)(c)2. excludes information obtained in connection with the approval of a lease, sale or other transfer of a unit from the official records a member may inspect. Keep the files physically and electronically separate from the general records so they are not produced by mistake.
Contact Hamilton Mikes
Hamilton Mikes drafts written screening criteria and application packets for cooperative boards, reviews denials before they are issued, and defends associations in fair housing complaints across Southwest Florida. Call 239-594-7227 or visit our Fair Housing page.
Statutes and authorities referenced
- § 719.104(2)(c)2., Fla. Stat. (transfer approval information not accessible to members)
- § 719.106(1)(i), Fla. Stat. (approval fee cap; security deposit on a lease or sublease)
- 42 U.S.C. §§ 3601–3631 (federal Fair Housing Act); § 3604 (discrimination in sale or rental); § 3607(b) (housing for older persons)
- §§ 760.20–760.37, Fla. Stat. (Florida Fair Housing Act)
- § 760.23, Fla. Stat. (discrimination in the sale or rental of housing; reasonable accommodations and modifications)
- § 760.29(4), Fla. Stat. (housing for older persons exemption)
- 15 U.S.C. § 1681b (permissible purposes of consumer reports); § 1681b(a)(2), (a)(3)(F), (f)
- 15 U.S.C. § 1681c(a) (information excluded from consumer reports; seven-year limits; conviction carve-out)
- 15 U.S.C. § 1681d(a) (disclosure of investigative consumer reports)
- 15 U.S.C. § 1681m(a) (duties of users taking adverse actions)
- HUD Office of Fair Housing and Equal Opportunity, Guidance on Application of the Fair Housing Act to the Screening of Applicants for Rental Housing (April 29, 2024)