Do's and don'ts when using Internet to screen tenants

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Mar. 21, 2013

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Rent it Right

Janet Portman
Inman News®

Q: With all the information you can get on the Internet these days, I always run a Google search on apartment applicants. I've heard that there's a legal risk in doing this -- that I may learn things that I'm not legally allowed to rely on when choosing applicants. But I sometimes find information that's contrary to what applicants report on their applications. How can I use the Internet safely? --Brian G.

A: You're not the only one who can't resist a quick Internet search on a person of interest -- be that a prospective tenant, employee, or even a date. And there's no disputing that often, you find information that's not only relevant, but crucial.

For example, imagine an applicant who tells you that he has lived and worked in the area for the past several years, but whose Facebook page says otherwise -- you'd be justified in suspecting that this person is hiding an unsavory rental past and may be supplying you with bogus prior landlords.

The problem with social media screening, however, is that you're apt to come upon information that is not only not true, but if true, should have no bearing on your decision as to whether to rent to this person. You'll likely discover information about race, age, religion, and the characteristics of the applicant's friends and family. Making rental decisions based on the race, religion, ethnicity and so on of the applicant (or the applicant's associates) would be a violation of the federal fair housing laws. Many states extend the list of "protected classes."

So, if you know that you can't consider these factors when screening an applicant, you can just ignore them, right? Well, yes, but suppose you're challenged by the applicant, who learns that you accessed social medial for this information? You'll be in the tricky situation of having to argue that you put the information out of your mind. But it's not so easy to "unring the bell," and more importantly, it's practically impossible to prove that you did so.

Does this mean that employers and landlords should never access social media for screening purposes? Not exactly. The critical thing is to separate the social media searcher from the person who makes the decisions, so that any irrelevant information discovered in the course of the search never gets to the person making the hiring or renting solution.

One way to do this is to hire a third party, a screening firm, who will pass on to you only the information that you can legally rely on when screening applicants. When you do that, the firm complies with the disclosure and reporting requirements of the Fair Credit Reporting Act.

Another tack is to have someone on your staff do the screening and report to you, keeping back irrelevant information. It's essential that you train this person on the legalities of screening and fair housing laws. Keep in mind that many states protect more classes than the federal law; for example, extending protection to people on the basis of gender identity, matriculation status (students), and immigration status. If your front-line screener doesn't know what information is legally off-limits, you will have lost the protection that the screener was intended to provide.

Q: I rent a small one-bedroom and from time to time my grandson, who has had some trouble with the law, stays with me. A month ago, he was arrested on the property for dealing drugs, but the case was dismissed because there wasn't enough evidence. Even so, my landlord is evicting me. Can he do this? --Alice F.

A: I'm guessing that the case turned on the validity of the search performed by the police. Generally, police need probable cause, or a good reason, to search someone without a warrant -- facts that would lead a reasonable person to conclude that a crime is being committed, and that the person about to be searched has evidence of it. Observing someone dealing drugs will qualify, but short of that, mere suspicions that illegal activity is taking place won't pass muster.

The judge who heard the case probably concluded that the police did not have enough facts to justify the search (or should have obtained a warrant), and as a result, the judge excluded the fruits of the search -- the drugs. And without this evidence, the prosecutor may have decided that there was not enough evidence to go forward with the case.

Although the prosecutor is bound to follow the judge's exclusion of the evidence, your landlord is not. Many states allow landlords to terminate tenancies when tenants, or their guests, break the law on the premises, and some do not require that the tenant or guest be convicted in criminal court. Most simply don't give a rule. As a consequence, landlords in those states are able to use the standard they see fit, be it a conviction, an arrest, a "stop and frisk," or even their own belief that illegality is taking place, without law enforcement involvement.

Tenants whose guests are the law-breakers are sometimes caught in an unfortunate position. Residents who know that the guest is up to no good can fairly be expected to suffer the consequences; but sometimes, tenants have no idea what their guests are doing, and have no way of finding out. While it is harsh to evict an "innocent host," landlords will respond that it's worse to allow the situation to continue.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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