Spotting a Strawman and the Distinction Between Guests and Unauthorized Occupants.
Every Housing Cooperative establishes a set of membership application and eligibility criteria. Screening applications, while itself is not an unlawful practice if decisions do not violate the Fair Housing Act for discrimination against one or more protected classes (i.e., race or color, religion, sex, national origin, familial status or disability) or other relative federal, state and local laws, serves a legitimate purpose. These purposes include insuring that members can meet financial obligations, that members and their immediate family meet occupancy standards for certain sized dwelling units, and passing criminal background checks.
Even after an applicant passes initial eligibility screening, a Member must continue to meet eligibility standards during the life of his/her membership. Typically, Bylaws echo this continued eligibility standard by containing provisions that require members to maintain their qualifications and eligibility for membership. Bylaw provisions and policies can require that members of record must reside in and occupy their dwelling units as their primary or principle place of residence. Cooperative rules can also require that immediate family who intend to reside with the member of record, at least go through some type of background check.
Because some applicants simply will not pass initial eligibility screening, it is not uncommon that some applicants are a mere strawman for other individuals who would otherwise not qualify for membership (i.e., an individual who acts as a front for others who actually incur the benefit of a transaction.). In these situations, the applicant on paper has no intention on residing in the co-op unit or becoming a bona fide member. Instead, the applicant is used solely to pass membership eligibility screening to allow other persons who would otherwise not qualify for membership, to enjoy the benefits of occupancy. The Cooperative may have no clue or suspicion that an applicant is being used as a strawman. With housing and rental stock becoming more and more difficult to obtain, economic turmoil, and consolidated family unit structures, it is not uncommon for a Cooperative Board to face instances of strawman applicants, ghost members, and unauthorized occupants who have not undergone required background checks. Often, it is difficult to determine whether an applicant or member is using their membership to allow unauthorized use and occupancy of the dwelling unit.
So what can a Cooperative do to spot a strawman situation? First, are some examples of what might be considered authorized occupancy versus examples of what may be considered unauthorized conduct within the broader scope of certain Bylaws and Policies:
Conduct Suspect of Unauthorized Use & Occupancy
Conduct of a Guest
|College Students & Adult Children
||Residing in unit during summer months. Residing in unit because they are no longer enrolled in school.
||Coming home for weekends, holidays, spring/winter breaks, but returns to school or campus after break.
||Residing with adult children because they can no longer live independently
||Visiting on weekends, assisting with newborn children, assisting with basic home maintenance.
|Spouses, Significant Others & Friends
||Spending multiple overnights per week, extended overnight stays, or consistent use of dwelling unit.
||Only visiting during the daytime, long-distance relationships.
|Nanny’s, Hired Help & Au Pairs (excluding Live-In Aides)
||Living in the dwelling unit, both day and night.
||At the dwelling unit during daytime hours and some evenings. Occasional over-night stay.
Note however, that HUD discourages “blanket bans” on criminal backgrounds in housing applications. Moreover, the Supreme Court of the United States in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 567 U.S. 519, 135 S. Ct. 2507 (2015) held that a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.
The above examples are just a few and it may be difficult to determine with any certainty whether an occupant is authorized or not, or is residing in a member’s dwelling unit without permission of the Cooperative or in the complete absence of the member of record. To combat these occupants who circumvent Cooperative application and membership screening criteria, there are several things a Cooperative can do to assist in making a well-reasoned determination if a member’s suspected guest is really a guest or an unauthorized occupant. These include:
- Maintaining copies of the applicant-member’s application packet.
- Maintaining copies of photo identification of the member applicant, and all other authorized household members.
- Requesting members submit to a recertification procedure (if applicable or authorized under the Cooperative’s Bylaws or Policies), where the member must disclose all occupants of the dwelling unit and provide copies of photo identification cards of all persons.
- Request copies of recent cable or utility bills that service the dwelling unit from the member.
In rare instances will the Cooperative have a “gotcha” moment. Thus, upon reasonable suspicion of a missing (“ghost”) member, an unauthorized occupant, or “strawman” applicant, it is always best for the Cooperative to turn the matter over to its attorneys. Cooperative attorneys have access to several databases and programs that can verify the authenticity of application information, examine public records, court filings, property records, etc. to make better determinations as to whether a violation of the Bylaws or Policies has occurred. The Cooperative attorney can also guide the Cooperative to a variety of options or pursue enforcement against a defaulting or “straw man” member.
By: Matthew T. Nicols
Attorney at Pentiuk, Couvreur & Kobiljak, P.C.
* Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Mr. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law. He is licensed to practice law in the states of Michigan and Illinois.