Your Lease and Rental Documents Companion

1. Preparing a Lease or Rental Agreement

• Which Is Better, a Lease or a Rental Agreement?
• Getting All the Rent Under a Lease Isn’t a Sure Thing
• Instructions for Completing the Lease or Rental Agreement Form
• Renters’ Insurance
• Instructions for Signing the Lease or Rental Agreement
• Lease-Option Contracts (Rent-to-Buy)

2. Choosing Tenants: Your Most Important Decision

• How to Advertise Rental Property
• Renting Property That’s Still Occupied
• Accepting Rental Applications
• Checking References, Credit History, and More
• Protect Personally Identifiable Information
• Avoiding Illegal Discrimination
• Choosing—and Rejecting—an Applicant
• Choosing a Tenant-Manager
• Property Management Companies

3. Getting the Tenant Moved In

• Inspect and Photograph the Unit
• Send New Tenants a Move-In Letter
• Cash Rent and Security Deposit Checks
• Organize Your Tenant Records
• Organize Income and Expenses for Schedule E

4. Changing or Ending a Tenancy

• How to Modify Signed Rental Agreements and Leases
• Ending a Month-to-Month Tenancy
• How Fixed-Term Leases End
• Returning Security Deposits When a Tenancy Ends

Appendixes

A: State Landlord-Tenant Law Charts

• State Landlord-Tenant Statutes
• State Laws on Attorneys’ Fees and Court Costs Clauses
• State Rules on Notice Required to Change or Terminate a Month-to-Month Tenancy
• State Rent Rules
• State Security Deposit Rules
• Required Landlord Disclosures
• State Laws on Landlord’s Access to Rental Property
• State Landlord-Tenant Exemption Statutes

B: How to Use the Downloadable Forms on the Nolo Website

• Editing RTFs
• List of Forms Available on the Nolo Website

Index

Chapter 2
Choosing Tenants: Your Most Important Decision

Choosing tenants is the most important decision any landlord makes. To do it well and stay out of legal trouble, you need a good system. Follow the steps in this chapter to maximize your chances of selecting tenants who will pay their rent on time, keep their units in good condition, and not cause legal or practical problems.

How to Advertise Rental Property

You can advertise rental property in many ways:

• posting a notice online
• using a “For Rent” sign
• taking out an ad in a local newspaper
• posting flyers on neighborhood bulletin boards
• posting a notice with university, alumni, or corporate housing offices
• listing with a local real estate broker
• buying ads in apartment rental guides or magazines, or
• hiring a property management company that will advertise your rentals as part of the management fee.

What will work best depends on a number of factors, including the characteristics of the rental property (such as rent, size, and amenities), its location, your budget, and how soon you need to find a tenant.

While large-scale landlords have great success with paid, nationally oriented advertising, many smaller landlords find marketing their rentals on a more personal level to be a better strategy. If you’re renting only a few properties, you usually won’t need to spend a lot of money on advertising—sometimes free is best. For example, you can spread the word about your rental through local social media and by word of mouth. Friends, colleagues, neighbors, and even current tenants can be great sources for finding tenants.

No matter how you let people know about the availability of your rental units, follow these simple rules to stay out of legal hot water:

Describe the rental unit enthusiastically but accurately. For practical reasons, avoid abbreviations and real estate jargon in your ad. Include basic details, such as:

• rent and deposit
• room size—particularly number of bedrooms and baths
• location—either the general neighborhood or street address
• move-in date and term—fixed-term lease or month-to-month rental agreement
• special features
• pets (whether you allow them, and any restrictions, such as dog breeds that your insurance prohibits)
• phone number, email, or website for more details (unless you’re going to show the unit only at an open house and don’t want to take calls), and
• date and time of any open

If you have any important rules (legal and nondiscriminatory, of course), such as no smoking, put them in your ad. Letting prospective tenants know about important policies can save you from talking to a lot of unsuitable people.

Be sure your ad can’t be construed as discriminatory. The best way to do this is to focus on only the rental property—not on any particular type of tenant. Specifically, ads should never mention sex, race, religion, disability, or age (unless yours is legally recognized senior citizens housing). And ads should never imply through words, photographs, or illustrations that you prefer to rent to people because of their age, sex, or race. (See “Avoiding Illegal Discrimination,” below, for more on the subject.)

State a market-rate price in your ad. Or, put another way, if an applicant who is otherwise acceptable (has a good credit history and impeccable references and meets all the criteria explained below) shows up promptly and agrees to all the terms set out in your ad, that person should be able to rent your property for the price you have advertised.

Online Services

Countless online services exist to help you reach potential tenants. Do a bit of research to learn which sites are used most by people looking to rent in your area, as site usage varies by region. Here are some of the more established places renters look for listings: Online community posting boards allow you to list your rentals at no or low charge and are a good place to start. Craigslist. Craigslist (Craigslist.org) has separate sites for every major metropolitan area. Visit the “Housing” section on your community’s site to find the best place to post your listing. Facebook. Many communities form locally oriented “Groups” on Facebook where you can post rental listings. To find these local groups, search for your zip code, area code, or city’s name in Facebook. Online community groups. Neighborhood groups, such as NextDoor, can be a good place to list your vacancy. National apartment listing services are also available, with the largest ones representing millions of apartment units in the United States. Some of the most established are: Rentals.com Doorsteps.com Apartments.com Zillow.com ForRent.com Zumper.com Rent.com, and ApartmentGuide.com. These national sites offer a wide range of services, from simple text-only ads that provide basic information on your rental to full-scale virtual tours and floor plans of the rental property. Services typically include mobile apps, too. Prices vary widely depending on the type of ad, how long you want it to run, and any services you purchase (some websites provide tenant-screening services). Before you use any online apartment rental service, make sure it’s reputable. Find out how long the company has been in business and how they handle problems with apartment listings.

 

By contrast, if you suddenly find a reason why it will cost significantly more, you are likely to be in violation of your state’s false advertising laws. This doesn’t mean you’re always legally required to rent at your advertised price, however. If a tenant asks for more services or significantly different lease terms that you feel justify more rent, it’s fine to bargain and raise your price, as long as your proposed increase doesn’t violate any rent control laws.

Don’t advertise something you don’t have. Some large landlords, management companies, and rental services have advertised units that weren’t really available in order to produce a large number of prospective tenants who could then be directed to higher-priced or inferior units.

Such bait-and-switch advertising is illegal under consumer fraud laws, and many property owners have been prosecuted for such practices.

Don’t overhype security measures. Don’t exaggerate—in writing or orally—the safety of your property or the security measures you provide. Not only will you have begun the landlord-tenant relationship on a note of insincerity, but you might be legally obligated to actually provide what you described. Or, if you fail to do so, or fail to conscientiously maintain promised security measures in working order (such as outdoor lighting or an electronic gate on the parking garage), a court or jury could find your failure to be a material factor that allowed a crime to occur on the premises. And, if this happens, chances are good you will be held liable for at least a portion of a tenant’s losses or injuries

Ads That Invite Lawsuits

Advertisements like the following will come back to haunt you if a crime occurs on your rental property: “No one gets past our mega-security systems.” “A highly trained guard is on duty at all times.” “We provide safe, highly secure buildings.” “You can count on us. We maintain the highest apartment security standards in the business.” Again, the point is not that you shouldn’t provide good security—or even that you shouldn’t tell prospective tenants about it—but that it’s best to do so without giving guarantees.

 

Renting Property That’s Still Occupied

It’s always easier to wait until the old tenant moves out before showing a rental unit to prospective tenants. This gives you the chance to refurbish the unit and avoids problems such as promising the place to a new tenant, only to have the existing tenant not move out on time or leave the place a mess.

To eliminate any gap in rent, however, you might want to show a rental unit while current tenants are still there. This can create a conflict; in most states, you have a right to show the still- occupied property to prospective tenants, but your current tenants are still entitled to a reasonable level of privacy. (For details, see Clause 15 of the lease and rental agreement in Chapter 1.)

To minimize disturbing your current tenant, follow these guidelines:

• Before implementing your plans to find a new tenant, discuss them with outgoing tenants so you can be as accommodating as possible.
• Give current tenants as much notice as possible before entering and showing a rental unit to prospective tenants.
• Limit the number of times you show the unit in a given week, and make sure your current tenants agree to any evening and weekend visits.
• Consider reducing the rent slightly for the existing tenant if showing the unit is an
• If possible, avoid putting a sign on the rental property itself, because this almost guarantees that your existing tenants will be bothered by strangers. Or, if you must put up a sign, make sure it warns against disturbing the occupant and includes contact information. “For Rent: Shown by Appointment Call 555-1700. Do Not Disturb Occupants” should work fine.

If, despite your best efforts to protect their privacy, the current tenants are uncooperative or hostile, it really is best to wait until they leave before showing the unit. Also, if the current tenant is a complete slob or has damaged the place, you’ll be far better off to apply paint and elbow grease after they leave before trying to rerent it.

Accepting Rental Applications

Ask all prospective tenants to fill out a written rental application that includes information on the applicant’s employment, income, credit, and rental housing history, including up-to-date references. It’s legal (and a good idea) to ask for the applicant’s Social Security and driver’s license numbers or, if the applicant doesn’t have one of these, some other form of identifying information.

For example, instead of a Social Security number, you could accept an ITIN (Individual Taxpayer Identification Number), which is issued by the IRS to persons who are required to file income taxes but who can’t obtain a Social Security number (SSN). ITINs are issued to nonimmigrants (people who are in the United States legally but don’t have the right to live here permanently). Almost anyone planning on staying in the United States long enough to rent an apartment (like someone with a student visa) will have an ITIN. If you refuse to rent to someone who has an ITIN but not an SSN, you might be courting a fair housing claim. You can also ask if the applicant has declared bankruptcy or been evicted. (You’ll also get much of this information from a credit report, as discussed below.)

FORM
Rental Application form. You’ll find a downloadable Rental Application on the Nolo website; the link is included in Appendix B of this book.

Before giving prospective tenants a rental application, complete the box at the top, filling in the property address, the first month’s rent, the rental term, and any deposit or credit check fee that tenants must pay before moving in. (Credit check fees are discussed later in this chapter.) If you’re charging any other fee, such as a nonrefundable cleaning deposit, note this as well—if you’re sure that the nonrefundable fee is legal in your state. (See “Don’t Charge Nonrefundable Fees” in Chapter 1 for details.)

Here are some basic guidelines for accepting rental applications:

• Each prospective tenant—everyone age 18 or older—should completely fill out and sign a separate written. This is true whether you’re renting to a married couple or to unrelated roommates, a complete stranger, or the cousin of your current tenant.
• Always make sure that prospective tenants complete the entire rental application, including Social Security number, driver’s license or other identifying information (such as a passport number or ITIN), current employment, bank, and emergency contacts. You might need this information later to track down a tenant who skips town leaving unpaid rent or abandoned Also, you might need the Social Security number or other identifying information, such as a passport, to request an applicant’s credit report.
• Request proof of identity and immigration Many landlords ask prospective tenants to show their driver’s license or other photo identification as a way to verify that applicants are using their real names. Except in California (Cal. Civ. Code § 1940.3), Colorado (Colo. Rev. Stat. § 38-12-1203), and New York City (NYC Admin. Code § 8-107(5)(a)), you may also ask applicants for proof of identity and eligibility to work under U.S. immigration laws (be aware that additional states and localities are considering and possibly passing similar measures). Proof includes documents like a work permit, a passport, or a naturalization certificate, using Form I-9 (Employment Eligibility Verification) from the U.S. Citizenship and Immigration Services, or USCIS, a bureau of the U.S. Department of Homeland Security. This form (and instructions for completing it) are available from the USCIS website at uscis.gov/i-9, or by phone at 800-375-5283. Under federal fair housing laws, you may not selectively ask for such immigration information—that is, you must ask all prospective tenants, not just those you suspect might be in the country illegally. It’s illegal to discriminate on the basis of race, color, or national origin, although you may reject someone on the basis of immigration status.
• Be sure all potential tenants sign the rental application, authorizing you to verify the information and references and to run a credit report. (Some employers and banks require written authorization before they will talk to you.) You might also want to prepare a separate authorization, signed and dated by the applicant, so that you don’t need to copy the entire application and send it off every time a bank or employer wants proof that the tenant authorized you to verify the information.

Finally, note that this application doesn’t ask applicants for their dates of birth (DOB). Many fair housing experts believe that doing so is risky, should a disappointed applicant attempt to challenge your rejection as an instance of age discrimination— having the date on the application at least establishes that you knew of the applicant’s age. Some landlords still ask for the DOB, in case a credit reporting company requests it. You should be able to order a credit report and a screening report using the applicant’s Social Security number or ITIN; if vendors balk, you might want to ask for the DOB.

FORM
Reference and Credit Check Consent form. You’ll find a downloadable copy of the Consent to Contact References and Perform Credit Check on the Nolo website; the link is included in Appendix B of this book.

Checking References, Credit History, and More

If an application looks good, your next step is to dig deeper. The time and money you spend are some of the most cost-effective expenditures you’ll ever make.

CAUTION
Be consistent in your screening. You risk a charge of illegal discrimination if you screen certain categories of applicants more stringently than others—for example, requiring credit reports only from minorities. (See “Avoiding Illegal Discrimination,” below, for more on the subject.)

Here are six elements of a very thorough screening process. You should always go through at least the first three to check out the applicant’s previous landlords and income and employment, and run a credit check.

Check With Current and Previous Landlords and Other References

Always call current and previous landlords or managers for references—even if you already have a written letter of reference from them. It’s worth the time if it helps you weed out a tenant who might have presented you with a fake letter. Also call employers and personal references listed on the application.

To organize the information you gather from these calls, use the Tenant References form, which lists key questions to ask landlords, employers, and other references.

TIP
Check out pets, too. If the prospective tenant has a dog or cat, ask previous landlords whether the pet caused damage or problems for other tenants or neighbors. It’s also a good idea to meet the dog or cat, so you can make sure that it’s well-groomed and well-behaved. You must, however, accommodate an applicant with a mental or physical disability whose dog serves as a support animal. (See the discussion of pet rules in Chapter 1, Clause 14.)

Take notes of all your conversations. You can indicate your reasons for refusing an individual on the Tenant References form—for example, negative credit information, bad references from a previous landlord, or your inability to verify information. You’ll want a record of this information so that you can survive a fair housing challenge if a disappointed applicant files a discrimination complaint against you.

FORM
Tenant References form. You’ll find a downloadable copy of the Tenant References screening form on the Nolo website; the link is included in Appendix B of this book.

Verify Income and Employment

Make sure that all tenants have the income to pay the rent each month. Call the prospective tenant’s employer to verify income and length of employment.

Some employers won’t release information without require written authorization from the employee. You’ll need to send the employer a signed copy of the release included at the bottom of the rental application form or the separate Consent to Contact References and Perform Credit Check form. If for any reason you question the income information you get from the employer, you may also ask applicants for copies of recent paycheck stubs.

It’s also reasonable to require documentation of other sources of income, such as Social Security, disability payments, workers’ compensation, welfare, child support, or alimony.

How much income is enough? Think twice before renting to someone if the rent will take more than one-third of their gross income, especially if they have a lot of debts.

Obtain a Credit Report

Private credit reporting agencies collect and sell credit files and other information about consumers. Landlords commonly check a prospective tenant’s credit history with at least one credit reporting agency, to see how responsible the person is about managing money. Jot your findings down on the Tenant References form, discussed above.

How to Get a Credit Report

A credit report contains a gold mine of information. You can find out, for example, whether a prospective tenant has a history of paying rent or bills late, has gone through bankruptcy, or has been evicted. (Your legal right to get information on evictions, however, might vary from state to state.) Credit reports usually cover the past 7 to 10 years.

Depending on the type of report you order, you might also get an applicant’s credit score (the most popular being the “FICO”), a number that purports to indicate the risk that an individual will default on payments.

To run a credit check, you’ll normally need a prospective tenant’s name, address, and Social Security number, or ITIN (Individual Taxpayer Identification Number). Three credit bureaus have cornered the market on credit reports:

• Equifax (Equifax.com)
• Experian (Experian.com), and
• TransUnion (TransUnion.com).

Although you generally cannot order a credit report directly from the big three bureaus, the bureaus have other options you might find helpful. For example, Experian has an option called “Experian Connect” (https://connect.experian.com) that allows prospective tenants to buy their credit report and credit score online, and give you access. This service provides you with a VantageScore, another type of credit score that’s similar to FICO.

TransUnion also allows you to get credit information about potential tenants by creating a “SmartMove” account (MySmartMove.com). You send applicants an online invitation through the account. Once applicants receive the invite, they supply their personal information, and you can then view their credit report, a criminal report (subject to federal, state, and local laws that limit or restrict access to some records), an eviction report, a leasing recommendation, and a “ResidentScore.” A ResidentScore is similar to a credit score, but TransUnion created it specifically for tenant screening purposes. ResidentScores range from 350 to 850, the same range that FICO and newer VantageScore models use. The higher the score, the better.

CAUTION
Take tenant scores with a grain of salt. If you use a screening service that provides you with a recommendation about a tenant—whether it be a “thumbs up” or a score—beware. The recommendation generated by the service might be based on erroneous information, such as mistakes in a credit report, or misleading data, such as an arrest that didn’t actually lead to a conviction. Whenever possible, look at the data behind the recommendation—you might spot obvious errors that the program didn’t, or you might not want to give as much weight to a single factor as the program did. There’s also mounting evidence that these screening recommendations are often racially biased and lead to people of color being wrongfully denied housing.

All three of the credit bureaus also offer tenant screening services (as do many property management websites, such as Avail (Avail.co), and TurboTenant (TurboTenant.com)). Using these screening services has pros and cons.

On the plus side, the information they provide is geared to the rental housing context (whereas a credit score was designed to predict whether the applicant would repay a loan). The method also protects applicants’ credit scores, in that the report counts only as a “soft inquiry” to the applicant’s file (multiple requests for credit reports can significantly lower a credit score). Importantly, SSNs are not revealed to the landlord. Either the landlord or the applicant can pay for the service.

Applicants initiate the screening process by filling out an application to generate a report. The report contains a recommendation on whether to rent to this applicant, based on credit, criminal, and eviction history. (Note that some states and cities limit how and when landlords can consider applicants’ criminal histories. For a bit more money, landlords can ask for a credit score, too.

On the negative side, some states do not post criminal data, so landlords who are evaluating applicants who have lived in those states will be paying for a service that isn’t available (not to mention that someone doesn’t have to live in a particular state to commit a crime there).

In addition, the service requires some work on the part of the applicants (they must complete an authentication form, to deter identity theft). This step will deter some applicants (but an applicant who isn’t serious enough to complete the process arguably is not the one for you, either).

Your state or local apartment association might also offer credit reporting services. Tenants who are applying for more than one rental might obtain their own reports, make copies, and ask you to accept their copies. Federal law doesn’t require you to accept an applicant’s copy—you can require applicants to pay a credit check fee for you to run a new report. However, certain states—Wisconsin and Washington, for example—are exceptions: State law in Wisconsin forbids landlords from charging for a credit report if, before the landlord asks for a report, the applicant offers one from a consumer reporting agency and the report is less than 30 days old. (Wis. Adm. Code ATCP § 134.05(4)(b).) In Washington, landlords must advise tenants whether they will accept a screening report done by a consumer reporting agency (in which case the landlord may not charge the tenant a fee for a screening report). Landlords who maintain a website that advertises residential rentals must include this information on the home page. (Wash. Rev. Code § 59.18.257.)

Credit Check Fees

It’s legal in most states to charge prospective tenants a fee for the cost of the credit report itself and for your time and trouble. Any credit check fee should be reasonably related to the cost of the credit check—$20 to $30 is common.

Some landlords don’t charge credit check fees, preferring to absorb the cost as they would any other cost of business. For low-end units, charging an extra fee can be a barrier to attracting tenants, and a tenant who pays a fee, but is later rejected, is likely to be annoyed and possibly more apt to claim that your rejection was based on a discriminatory reason.

Our rental application informs prospective tenants whether you charge a credit check fee. Make it clear to prospective tenants that paying a credit check fee does not guarantee the tenant will get the rental unit.

TIP
It’s a mistake to collect a credit check fee from lots of people. If you expect a large number of applicants, you’d be wise not to accept fees from everyone. Instead, read over the applications first and do a credit check only on applicants you’re seriously considering. That way, you won’t waste your time (and prospective tenants’ money) collecting fees from unqualified applicants.

CAUTION
It is illegal to charge a credit check fee if you don’t use it for the stated purpose and pocket it instead. Return any credit check fees you don’t use for that purpose.

What You’re Looking for in a Credit Report

Be leery of applicants with lots of debts—especially people whose monthly payments plus the rent obligation exceed 40% of their gross income. Also, look at the person’s bill-paying habits, and, of course, pay attention to lawsuits and evictions.

Sometimes, your only choice is to rent to someone with poor or fair credit—or even no credit (for example, a student or recent graduate). If that’s your situation, you could condition acceptance on:

• positive references from previous landlords and employers
• a creditworthy cosigner for the lease (see the discussion on cosigners at the end of Chapter 1)
• a good-sized deposit—as much as you can collect under state law and the market will bear (see Clause 8 of the form agreements in Chapter 1), and
• proof of specific steps taken to improve bad credit—for example, enrollment in a debt counseling group.

CAUTION
Take special care to store credit reports in a safe place, where only you and those who “need to know” have access to them. When you no longer need the reports, according to the “Disposal Rule” of the Fair and Accurate Credit Transactions Act, you must destroy them. Use a shredder or burn the credit reports, and delete any reports kept on your computer or phone using a commercial electronic “shredding” product.

Verify Bank Account Information

If an individual’s credit history raises questions about financial stability, you might want to double-check the bank accounts listed on the rental application. If so, you’ll probably need an authorization form such as the one included at the bottom of the rental application, or the separate Consent to Contact References and Perform Credit Check form (discussed above). Banks differ as to the type of information they will provide over the phone. Generally, without a written authorization, banks will confirm only that an individual has an account there and that it is in good standing.

CAUTION
Be wary of an applicant who doesn’t have a checking or savings account. Tenants who offer to pay cash or with a money order should be viewed with extreme caution. Perhaps the individual bounced so many checks that the bank dropped the account or the income comes from a shady or illegitimate source —for example, from drug dealing.

Review Court Records

When prospective tenants have previously lived in your area, you might want to review local court records to see whether collection or eviction lawsuits have been filed against them. Checking court records might seem redundant—some of this information might be available on credit reports—but now and then it’s a valuable tool. You won’t violate antidiscrimination laws as long as you check the records of every applicant who reaches this stage of your screening process. Because court records are kept for many years, this kind of information can supplement references from recent landlords. Talk to the court clerk at the local court that handles eviction cases for information on how to check court records.

Use Megan’s Law to Check State Databases of Sex Offenders

Not surprisingly, most landlords don’t want tenants with criminal records, particularly convictions for violent crimes or crimes against children. Checking a prospective tenant’s credit report, as recommended above, might be one way to find out about a person’s criminal history.

“Megan’s Law” can also be a useful source of information. This federal crime prevention law charges the FBI with keeping a nationwide database of persons convicted of sexual offenses against minors and violent sexual offenses against anyone. (42 U.S.C. §§ 14071 and following.) Every state has its own version of Megan’s Law that requires certain convicted sexual offenders to register with local law enforcement officials and supply their addresses.

For information on your access to this type of database, and restrictions on your use of information derived from a Megan’s Law database, contact your local law enforcement agency. California landlords may not access their state’s database unless they are doing so to protect a person “at risk.” This means that routine checking is not legal. (Cal. Penal Code § 290.46(j)(1).) Massachusetts, Nevada, and New Jersey have some restrictions, too. To find out how to access your state’s sex offender registry, you can also contact the Parents for Megan’s Law (PFML) Hotline at 888-ASK-PFML, or check this organization’s website at parentsformeganslaw.org (you can search for your state’s sex offender registry under the “Services” menu—click on “Sex Offender Information”).

Protect Personally Identifiable Information

When screening applicants, you’ll collect a lot of personal and potentially sensitive information, including names, Social Security numbers, and more. Because the misuse of this personally identifiable information (known as “PII”) can be so harmful to victims, many states require those who handle PII—including landlords—to follow security protocols and to report the unintended leaking of PII. Even if your state hasn’t imposed specific requirements on use and handling, you should to take steps to protect the PII you obtain.

What Is PII?

PII is any information that someone could use to identify a particular person. For example, knowing a name and birthdate, someone might be able to tie that information to an actual person. Driver’s license numbers, Social Security numbers, and email addresses are just a few examples of PII landlords often collect.

As a general rule, ask only for what’s necessary to determine who will be a good tenant. The information we’ve suggested that you obtain during your screening process is the minimum amount you’ll need to confidently evaluate your applicants.

Storing PII

Most landlords’ records contain PII. (For information about what items should be in your records and how to maintain records, see “Organize Your Tenant Records” in Chapter 3.)

State PII laws often require PII holders to take “reasonable steps” to protect PII. What’s reason- able for your business depends on factors such as how you collect PII, how you store it, and how many people have access to it. At the very least, give others access to PII only when necessary, and consider developing a set of written rules for how to store PII. Whenever possible, password-protect PII, encrypt messages containing PII, and keep physical documents containing PII in one secured place with limited access.

Destroying PII

Deciding when to destroy PII can be a tough call—you need to maintain thorough records, but you also don’t want to hold on to PII longer than necessary. For most landlords, it’s safe to destroy rental records four years after the tenancy ends. You’ll also need to consider how long you should keep records for tax purposes. Beyond these basic recommendations, consider scheduling regular audits of your files to check for unneeded PII.

No matter how long you keep rental records, you should have written procedures on how to destroy PII. Some examples of PII destruction practices are:

• Destroy PII as soon as it’s no longer needed
• Black out and shred documents containing PII before throwing them away or
• Delete or overwrite unneeded electronic files. Hitting “delete” will not be enough to prevent someone from reconstructing these files, so consider using a software application that prevents reconstruction.

What to Do If PII Is Stolen

Even when you take reasonable security measures, the PII of your applicants (and tenants) might become exposed. If this happens, check your state law—some states require you to report PII security breaches to affected consumers and even to the state itself, depending on the number of people affected by the breach. In any situation, determine what PII was exposed, who was affected, and whether it’s likely the PII will be misused. If you have any reason to believe the PII will be misused, contact the people whose information was taken as soon as possible. You should also evaluate how the PII was accessed, and take measures such as changing passwords or moving files to make sure it doesn’t happen again.

RESOURCE
Stay current on the status of PII law in your state by going to The National Conference of State Legislatures’ website (www.ncsl.org) and searching for “data security laws.” For information on electronic record destruction, check out the Massachusetts Institute of Technology site (web.mit.edu) and search for “removing sensitive data.” The FTC has a clear and thorough explanation of the Disposal Rule on its website (www.ftc.gov) as well as tips and advice on how to dispose of consumer reports. (On the FTC home page, search for the article’s name: Disposing of Consumer Report Information? Rule Tells How.) Consider visiting this site on a regular basis to stay informed about any changes to or tips on complying with the Disposal Rule.

Consumer Reports: A Special Form of PII

Consumer reports—any report you obtain from a consumer reporting company for purposes of screening potential tenants—require special handling. The consumer report used most often by landlords is a credit report. Under the “Disposal Rule” of the Fair and Accurate Credit Transactions Act, when you no longer need a consumer report, you must destroy it in a manner that is reasonable for your business and that prevents anyone from using or accessing the report without permission. The Federal Trade Commission (FTC)—the organization which enforces the Disposal Rule— suggests shredding paper with PII and permanently erasing electronic files with PII.

 

Avoiding Illegal Discrimination

Federal and state antidiscrimination laws limit what you can say and do in the tenant selection process. Basically, you need to keep in mind three important points:

1. You are legally free to choose among prospective tenants as long as your decisions are based on legitimate business criteria. You are entitled to reject people for the following reasons:
   • poor credit history
   • income that you reasonably regard as insufficient to pay the rent
   • negative references from previous or current landlords indicating problems— such as property damage or consistently late rent payments—that make someone a bad risk
   • convictions for relevant criminal offenses
   • inability to meet the legal terms of a lease or rental agreement, such as someone who can’t come up with the security deposit or who wants to keep a pet when your policy is no pets, or
   • more people than you want to live in the unit—assuming that your limit on the number of tenants is clearly tied to health and safety or legitimate business needs. (See Clause 3 discussion of occupancy limits in Chapter 1.)
2. Antidiscrimination laws identify the illegal reasons to refuse to rent to a tenant. The federal Fair Housing Act and Fair Housing Amendments Act (42 S.C. §§ 3601–3619, 3631) prohibit discrimination on the basis of race or color, religion, national origin, gender, age, familial status (pregnancy or children), and physical or mental disability (including recovering alcoholics and people with a past drug addiction). Many states and cities also prohibit discrimination based on marital status, source of income, military status, sexual orientation, or gender identity.

RESOURCE
More on housing discrimination rules. For more information on the rules and regulations of the Fair Housing Act, contact HUD’s Housing Discrimination Hotline at 800-669-9777 or check the HUD website at www.HUD.gov. You can also contact a local HUD office.

For information on state and local housing discrimination laws, contact your state fair housing agency. HUD’s website also contains a list of state agencies and contact information.

3. Consistency is crucial when dealing with prospective tenants. If you don’t treat all tenants more or less equally—for example, if you arbitrarily set tougher standards for renting to a member of an ethnic minority (such as requiring a higher income level or proof of legal residence status), you are violating federal laws and opening yourself up to expensive lawsuits and the possibility of being hit with large judgments. On the other hand, if you require all prospective tenants to meet the same income standard and to supply satisfactory proof of their legal eligibility to work (as well as meet your other criteria), you will get the needed information, but in a nondiscriminatory way.

CAUTION
Accept applications from everyone who’s interested. Even if, after talking to someone on the phone, you doubt that a particular tenant can qualify, it’s best to politely take all applications. Unless you can point to something in writing that clearly disqualifies a tenant, you are on shaky legal ground: Refusing to take an application might anger prospective tenants and make them likely to look into the possibility of filing a discrimination complaint. Make decisions later about who will rent the property. Be sure to keep copies of all applications. (See discussion of record keeping in Chapter 3.)

The Rights of Tenants With Disabilities

The Fair Housing Acts require that landlords accommodate the needs of tenants with disabilities, at the landlord’s own expense. (42 U.S.C. § 3604(f) (3)(B).) You are expected to adjust your rules, procedures, or services in order to give a person with a disability an equal opportunity to use and enjoy a dwelling unit or a common space. Accommodations include such things as providing a close-in, spacious parking space for a tenant who uses a wheelchair (assuming you provide parking). Your duty to accommodate tenants with disabilities does not mean that you must bend every rule and change every procedure at the tenant’s request. You are expected to accommodate “reasonable” requests, but need not undertake changes that would seriously impair your ability to run your business. The Fair Housing Acts also require landlords to allow tenants with disabilities to make reasonable modifications of their living unit at their expense if that is what is needed for the person to comfortably and safely live in the unit. (42 U.S.C. § 3604(f)(3)(A).) For example, a person with a disability has the right to modify the living space to the extent necessary to make the space safe and comfortable, as long as the modifications won’t make the unit unacceptable to the next tenant, or the tenant with a disability agrees to undo the modification when they leave. An example of a modification undertaken by a tenant with a disability is lowering countertops for a tenant who uses a wheelchair. You are not obliged to allow a tenant with a disability to modify a unit at will, without your prior approval. You are entitled to ask for a reasonable description of the proposed modifications, proof that they will be done in a workmanlike manner, and evidence that the tenant is obtaining any necessary building permits. Moreover, if a tenant proposes to modify the unit in such a manner that will require restoration when the tenant leaves (such as the repositioning of lowered kitchen counters), you may require that the tenant pay into an interest-bearing escrow account the amount estimated for the restoration. (The interest belongs to the tenant.)

 

Choosing—and Rejecting—an Applicant

After you’ve collected applications and done some screening, you can start evaluating applicants, using the basic criteria discussed above. Start by eliminating the worst risks: people with negative references from previous landlords, a history of nonpayment of rent, or poor credit or recent and numerous evictions. Then make your selection.

Assuming you choose the best-qualified candidate (based on income, credit history, and references), you have no legal problem. But what if you have a number of more or less equally qualified applicants? Can you safely choose an older white man over a young black woman?

The answer is a qualified “yes.” If two people rate equally, you can legally choose either one without legal risk in any particular situation. But be extra careful not to take the further step of always selecting a person of the same sex, age, or ethnicity. For example, if you are a large landlord who is frequently faced with tough choices and who always avoids an equally qualified minority or disabled applicant, you are exposing yourself to charges of discrimination.

Information You Should Keep on Rejected Applicants

It’s crucial that your tenant-screening system documents how and why you chose a particular tenant.

Note your reasons for rejection— such as poor credit history, pets (if you don’t accept pets), or a negative reference from a previous landlord—on the tenant references form or other document, so that you have a paper trail if a tenant accuses you of illegal discrimination. You want to be able to back up your reason for rejecting the person. Keep organized files of applications and other materials and notes on prospective tenants for at least three years after you rent a particular unit. (See “Organize Your Tenant Records” in Chapter 3.) Keep in mind that if a rejected applicant files a complaint with a fair housing agency or files a lawsuit, your file will be made available to the applicant’s lawyers. Knowing that, choose your words carefully, avoiding the obvious (slurs and exaggerations) and being scrupulously truthful.

Information You Must Provide Rejected Applicants

If you don’t rent to someone because of an insufficient credit report or negative information in the report, you must give the applicant the name and address of the agency that reported the negative information or furnished the insufficient report. This is a requirement of the federal Fair Credit Reporting Act (FCRA). (15 U.S.C. §§ 1681 and following.) The notices are known as “adverse action reports.”

In these cases, you must tell applicants that they have a right to obtain a copy of the file from the agency that reported the negative information, by requesting it within the next 60 days, or by asking within one year of having asked for their last free report. You must also tell rejected applicants that the credit reporting agency didn’t make the decision to reject them and cannot explain the reason for the rejection. Finally, you must tell applicants that they can dispute the accuracy of their credit report and add their own consumer statement to their report. The law doesn’t require you to communicate an applicant’s right to disclosure in writing, but it’s a good idea to do so (and to keep a copy of the rejection letter in your files). That way, you’ll have irrefutable proof that you complied with the law if you’re challenged in court. Use the Notice of Denial Based on Credit Report or Other Information form, shown below, to comply with the federal Fair Credit Reporting Act when you reject an applicant because of an insufficient credit report or negative information in the report.

FORM
Rejection letter form. You’ll find a downloadable copy of the Notice of Denial Based on Credit Report or Other Information on the Nolo website; the link is included in Appendix B of this book.

Exceptions: The federal requirements do not apply if you reject someone based on information that the applicant furnished or that you or your employee learned on your or their own.

Conditional Acceptances

You might want to make an offer to an applicant but condition that offer on the applicant paying more rent or a higher security deposit (one that’s within any legal limits, of course), supplying a cosigner, or agreeing to a different rental term than you originally advertised. If your decision to impose the condition resulted from information you gained from a credit report or a report from a tenant screening service, you have to accompany the offer with an adverse action report (described in the section immediately above). Use the Notice of Conditional Acceptance Based on Credit Report or Other Information, shown below.

FORM
Conditional acceptance form. You’ll find a downloadable copy of the Notice of Conditional Acceptance Based on Credit Report or Other Information on the Nolo website; the link is included in Appendix B of this book.

Choosing a Tenant-Manager

Many landlords hire a manager to handle all the day-to-day details of running a rental property, including fielding tenants’ routine repair requests and collecting the rent. If you hire a resident manager, get a completed rental application and check references and other information carefully. If you use a property management company, it will do this work for you. (See below.)

The person you hire as a manager will occupy a critical position in your business. Your manager will interact with every tenant and will often have access to their personal files and their homes. Legally, you have a duty to protect your tenants from injuries caused by employees you know (or should know) pose a risk of harm to others. If someone gets hurt or has property stolen or damaged by a manager whose dubious background you didn’t check carefully, you could be sued, so it’s crucial that you be especially vigilant when hiring a manager.

When you hire a manager, you should sign two separate agreements:

• an employment agreement that covers manager responsibilities, hours, and pay, and that can be terminated at any time for any reason by either party, and
• a month-to-month rental agreement that can be terminated by either of you with the amount of written notice (typically 30 days) required under state law.

Whether or not you compensate a manager with reduced rent or regular salary, be sure you comply with your legal obligations as an employer, such as following laws governing minimum wage and overtime.

RESOURCE
A comprehensive legal resource for landlords. Every Landlord’s Legal Guide, by Ann O’Connell and Janet Portman (Nolo), provides detailed advice on hiring a manager, including how to prepare a property manager agreement, and your legal obligations as an employer, such as following laws governing minimum wage and overtime.

Property Management Companies

Owners of large apartment complexes often use property management companies, as do absentee owners. Some absentee owners hire property managers simply because they live too far away to be involved in everyday details; others hire property managers out of necessity—some states require owners who live out of state to hire local, licensed property managers. If you’re considering renting out property you own in another state, research whether that state requires properties to have an in-state manager.

Property management companies generally take care of renting units, collecting rent, taking tenant complaints, arranging repairs and maintenance, and evicting troublesome tenants (not every management company will handle evictions, however). Of course, some of these responsibilities can be shared with or delegated to resident managers who, in some instances, might work for the management company.

A variety of relationships between owners and management companies is possible, depending on your wishes and how the particular management company chooses to do business. For example, if you own one or more big buildings, the management company will probably recommend hiring a resident manager. But if your rental property has only a few units, or you own a number of small buildings spread over a good-sized geographical area, the management company will probably suggest simply responding to tenant requests and complaints from its central office.

One advantage of working with a management company is that you avoid all the legal hassles of being an employer: paying payroll taxes, buying workers’ compensation insurance, and withholding income tax. The management company is an independent contractor, not an employee. It hires and pays the people who do the work. Typically, you sign a contract spelling out the management company’s duties and fees. Most companies charge a fixed percentage—about 6% to 12%—of the total rent collected. (The salary of any resident manager is additional.) This gives the company a good incentive to keep the building filled with rent-paying tenants.

Another advantage is that good management companies are usually well informed about the law, keep thorough records, and are adept at staying out of legal hot water in such areas as discrimination, invasion of privacy, and returning deposits.

The primary disadvantage of hiring a management company is the expense. For example, if you pay a management company 10% of the $14,000 you collect in rent each month from tenants in a 12-unit building, this amounts to $1,400 a month and $16,800 per year. While many companies charge less than 10%, it’s still quite an expense—even if you adjust for the fact that the property manager’s fee is tax deductible. Also, if the management company works from a central office with no one on-site, tenants might feel that management is too distant and unconcerned with their day-to-day needs.

Management companies have their own contracts, which you should read thoroughly and understand before signing. Be sure you under- stand how you’ll pay the company and its exact responsibilities.

Shop around for a management company— not all are created equal. A management company with a reputation for treating tenants poorly or ignoring service requests can hurt your chances of finding high-quality tenants. And, even though a management company is an independent entity, under certain circumstances a court could find you partially responsible for its misdeeds. Interview people at the company and ask them about past lawsuits or complaints. Ask other landlords in the area about their experiences with the company. In particular, try to learn the eviction rate in buildings they manage. Unusually large numbers of evictions might spell sloppiness in tenant screening or, worse, deliberate indifference. Keep in mind that many management companies get paid apart from their monthly fee every time they advertise and screen applicants, giving them an incentive to perform that task as often as possible.

And, finally, be sure to check online reviews. Online reviews will give you insight into what tenants think about the management company. Give the reviews whatever weight you think is appropriate, keeping in mind that most reviews are written either by people who the company asked for reviews or who had terrible experiences.

This Book Comes With a Website

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Download Forms: All of the forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix B.

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