Using Facebook to screen tenants invites trouble

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Nov. 10, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I applied for a rental last month and thought I'd get the place -- I have an excellent record as a tenant, a stable job, and a string of happy landlords in my past. But I was rejected. A friend asked me whether I'd taken down my Facebook page before applying -- he said that landlords regularly check these, and they make decisions based on what they find. On my page, it's clear that I'm very politically active and that I'm a Buddhist. How can I find out whether the landlord went online, and whether the information he found contributed to his decision -- which would have been illegal, right? --Tom F.

A: Your friend was correct when he told you that online searches of applicants' social media postings are on the rise. In the employment area, studies show that employers regularly conduct such searches. For example, an August 2011 study by the Society for Human Resource Management contacted 541 job recruiters and found that 18 percent said their companies regularly researched their applicants on sites such as Twitter and Facebook. There's no reason to think that landlords are proceeding any differently.

But as tempting as these sources are for information about potential tenants, using them carries a significant legal risk.

Suppose, for example, that you're a landlord who regularly goes online to research applicants. You're about to reject an applicant because of a poor credit score, but you've also viewed his Web page, which reveals that he's a devout [name a mainstream religion]. Your applicant is incensed when he doesn't get the apartment, and files a complaint with the local fair housing enforcement agency. They question you about your motives and, although you explain that the poor credit score alone justified your rejection, you also admit that you knew about the applicant's religion. Unfortunately, you have to convince the investigator that this latter bit of knowledge played no part at all in your decision. You'd have been far better off if you'd never learned of the person's religion in the first place.

You, however, are the applicant with a rejection and a revealing Facebook page. Unfortunately, you have no evidence that the landlord actually saw your page. You won't know whether he did unless you ask him. He's not likely to answer, and you won't get any information until you put him in a position where he'll have to answer. But to do that, you'd have to file a complaint that a fair housing agency will pursue. But ... your conjecture alone that he may have gone online, because lots of landlords are doing that, probably won't be enough to convince a fair housing official to act on your complaint and initiate an investigation.

There's a lesson here for both landlords and tenants. Landlords, be wary of going to social media sites to check out potential tenants. You may learn information that is totally extraneous to your decisions, but may come back to haunt you when you're challenged to prove that your knowledge of the applicant's religion, ethnicity, age and so on was irrelevant. True, you may also learn that he's a party animal who throws keggers every weekend, but you could probably learn that the old-fashioned way (by talking to past landlords).

And tenants, beware: What you post is likely to be viewed by landlords and employers. Think twice before sharing with the entire world.

Q: The sidewalk and median outside our apartment complex has become a gathering spot for day laborers who stand in the street to solicit business from passing motorists and spend a lot of time sitting or standing on the sidewalk. At the end of the day, there's litter and worse in the bushes and street. Is there anything we can do about this? --Kim W.

A: The sensible answer to this problem lies with law enforcement, not private property owners like yourself. Your role is to bring the issue to their attention by filing complaints or by contacting your local city council members.

The behavior you're describing probably constitutes a violation of laws that are currently on the books. Chances are, your city already regulates traffic flow by preventing deliberate interference. Obstructing a public thoroughfare, such as a sidewalk, is also doubtless addressed. Litter laws and laws against public urination exist everywhere. These laws should be sufficient to enable local law enforcement to tackle the problem.

Many cities, even those with existing laws such as those described above, have gone one step further, by passing ordinances that specifically target day laborer gatherings. In California alone, some 50 cities have such laws. However, they might not be constitutional.

The problem is that solicitations for employment on a public sidewalk fall within one's right to free speech. When a law regulates speech, that law must be in place to protect a legitimate government interest -- not to control the content of the speech. In other words, laws aren't supposed to make speech about certain topics illegal, but allow talk of other topics to be legal. (There's a famous exception for public safety -- you shouldn't be allowed to cry "Fire!" in a crowded theater -- but that's not applicable here.)

Regulating the condition of public streets is certainly a valid government objective. But the law must be drafted as narrowly as possible to serve that objective. Prohibiting solicitations on sidewalks, medians and streets may be allowed, but prohibiting them more widely -- on "other such areas," for example -- may go too far.

The city of Redondo Beach, Calif., learned this lesson the hard way, when a federal appellate court struck down their anti-solicitation ordinance as unnecessarily and overly broad (it used the language "and other areas").

Your first step should be to talk to local police and elected representatives, asking them to use the tools they already have to handle the issue. You might also ask them to explore the idea of setting aside a particular area in town as a sanctioned place for day laborers to gather and ask for work. Some cities have tried this approach and have found that it balances the reasonable needs of the public (to have unimpeded access to streets and sidewalks, free of litter) and those who are looking for a way to make a living.

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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