REMOVING THE CHILD CRIMINAL

While there is no requirement under Florida law to determine the criminal background, if any, of a potential resident, many property managers choose to run a criminal background check on the applicant. Often these criminal background checks are not completely accurate, and applicants often slip through the cracks. Unfortunately, there are major deficiencies in record keeping and access to the criminal records. Often this is due to the delay of states reporting to the federal databases. Most apartment communities routinely run criminal background checks to help minimize liability, since the resident will be living in close proximity with and interacting with other residents on the premises. Criminal background checking is on the rise among single family home managers, and both single family home managers and multi-family housing managers are creating resident selection criteria which the applicant must pass in order to be approved. The reality of many rental situations is that the background checks are run on the adult applicants, while no information is gathered on the occupant of the rental unit if the occupant is a juvenile. Juvenile records are not available to the public, and a property manager has no way whatsoever to know the background of the child.

The Child Criminal

Thousand of juveniles commit crimes each year, many of an extremely serious nature. In fact, a large percentage of adult criminals have long juvenile records. These crimes could include murder, rape, serious bodily harm and major damage to personal property, such as arson, resulting in incarceration of the child in a juvenile detention center. These juveniles are living in apartment communities and homes and often are not rehabilitated upon release from a juvenile detention facility. This increases the probability that the juveniles will continue to engage in criminal behavior, which is dangerous to society. Traditionally, laws have protected juvenile criminals by sealing their records. After offenders turn 18, their records are expunged or sealed, depending on state law. The philosophy behind this anonymity: juveniles should not be stigmatized for the rest of their lives for acts committed while they were children. The emphasis of the juvenile criminal system is on rehabilitation, not punishment.

The Discovery of the Juvenile Criminal

In most cases, the property manager will have no idea that the juvenile occupant will have a criminal past. It is often discovered when a courtesy officer, who is often a law enforcement officer, runs a criminal background check on a juvenile due to an incident on the property, or a neighbor discovers from some source that the juvenile has a criminal record. The law enforcement officer has greater unrestricted access to this information, and although they are not permitted to disclose this information, the word gets out. When the word gets out, now what?

If the property manager refers back to the application, most likely there will be the question asked of the applicant on the application if the applicant has been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense. The answer will most likely be “no”, and this will be a truthful answer. The problem is not in the answer here, but rather the question asked.

The Proper Question

Instead of limiting the question regarding a criminal past to the applicant only, we recommend that the applicant is asked if any occupants have a criminal past.

A sample more inclusive question would be:
Have you or any occupants ever been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense?

Now it is quite possible that the applicant will answer “no” to this question, you will run your background check, and the applicant will be approved. The key here is that you have asked the question and it is later determined that an occupant does indeed have a criminal past, the resident’s lease can be terminated based upon a misrepresentation on the rental application.

The Misrepresentation Wording

Every lease and/or application should include a clause which states that a tenancy can be terminated in the event the resident lies on the application. Typical wording on an application would be:
Applicant agrees that false, misleading or misrepresented information may result in the application being rejected, will void a lease/rental agreement if any and/or be grounds for immediate eviction with loss of all deposits and any other penalties as provided by the lease terms, if any.

If the application and/or lease includes such or similar wording, and there is a material misrepresentation made, lease termination is usually no problem, and the resident can be evicted if necessary.

Our Recommendations:

In the event it is discovered that a child occupant was convicted of a serious offense, and the resident indicated “no” on the question regarding the applicant or occupants, the manager should speak with the resident and attempt to get the resident or residents to sign an “Agreement to Vacate”. Filing an eviction based on the failure to disclose the child’s criminal past would require that criminal past to be disclosed in court. The problem is these records are sealed and not available to the manager in the civil action, thus making the case difficult if not impossible to prove. If proof is not available, we must rely upon the resident to agree to vacate the premises. Monetary incentives can be used for this if necessary and the Agreement to Vacate will be the proper form. Many residents are desirous of signing the Agreement to Vacate, and it should never be dismissed as an option to have a resident voluntarily vacate the premises. Once an Agreement to Vacate is signed, the failure of a resident to vacate makes for an easy eviction action, as the manager need only prove the resident failed to vacate the premises after signing the agreement. Since the discovery of a criminal child occupant is a relatively uncommon occurrence, we recommend you immediately call your attorney to discuss the matter and the strategy.