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Criminal Record Used to Screen Applicants

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<i> From Project Sentinel</i>

QUESTION: As a property manager, I just ran a reference check on a rental applicant. The applicant has a scary arrest record with convictions--for assault, rape and drug use. Clearly, I’d rather not rent to him, but if I don’t, will I run afoul of fair housing laws? Is it possible that I have to rent to him if he meets all of my other screening criteria?

ANSWER: Fortunately for you and your other tenants, no. In a recent case before the U.S. 7th Circuit Court of Appeals regarding the rental of apartment units to potential tenants with criminal records, the court looked at provisions of the Federal Fair Housing Act. Because ex-convicts are not included in such protected categories as race, color, sex and religion, a property owner or manager may consider criminal records as a rental criteria.

However, the court also ruled that a landlord’s discretion is not without limitations. Owners and managers can refuse to rent only to those whose records involve crimes against property or people, meaning those who could pose a health or safety risk to other tenants or whose tenancy could result in substantial property damage. The ex-felon whose application you have is one you can legally turn down. If you are still concerned about any repercussions from rejecting this person, talk with your legal adviser or contact your local fair housing program.

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Landlords Entitled to See Tax Returns

Q: I recently applied for an apartment, and because I am self-employed, the manager asked for a copy of my most recent tax return. I feel this is an invasion of my privacy. Am I right?

A: Owners have the right to assure that all tenants have sufficient income to pay the monthly rent. If the prospective tenant is employed, the owner can contact the employer to verify income and length of employment. Owners can also request copies of recent paycheck stubs.

Clearly, this method doesn’t work if the applicant is self-employed, and therefore it is perfectly legal to ask to see recent tax returns and any other documents, such as bank statements, that would show the tenant’s ability to pay. Owners can also use credit reporting agencies to check a tenant’s credit history.

Tenant’s Actions Don’t Justify Discrimination

Q: One of my rental properties has become available and I am about to advertise it. It’s close to an Air Force base, and there is a good chance that I will get applicants that are in the military. The last tenant was in the military and he never paid his rent on time and owned me three months back rent before I finally got him out. Clearly, I don’t want to repeat that experience.

I am not implying that people in the military are problems, but I just learned that I cannot attach the wages of federal employees.

Given this circumstance, can I require a higher deposit because of this wage protection?

A: The rules regarding deposits apply to all tenancies. That is, you can charge up to twice the monthly rent as a security deposit for an unfurnished unit, and three times for a furnished one. Actually, few owners ask for deposits that large.

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Now, let’s say you normally rent your apartments for $1,000 a month and charge $750 for the cleaning deposit. You cannot charge tenants who are in the military a higher deposit than you would tenants working for private employers. According to the Unruh Civil Rights Act, this would be arbitrary discrimination based on employment status. It is not reasonable to penalize all members of a class because of the actions of one individual.

If you feel you need a larger security deposit, you might consider raising the amount of deposit you request from all new tenants.

And, in fact, you can collect a judgment from federal employees’ wages, but it is more difficult than collecting from private sector employees. An attorney may be able to help you in this matter. Also, you might contact the commanding officer or the housing office of the military base for assistance.

This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 582-B Dunholme Way, Sunnyvale, CA 94087 but cannot be answered individually. For help in the Los Angeles area, call the Westside Fair Housing Council at (310) 477-9260.

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