Q: When I screen potential tenants, I talk to their current landlord and their employer, ask for references, and order a credit report. Some of the landlords in town are also regularly looking on the Internet, to see if the applicant blogs, has a Facebook page, and so on. One friend told me that when he looked at the Facebook page of an applicant he was about to rent to, he saw that the person is really into partying and drinking. My friend didn’t rent to him. Should I be looking at Facebook pages, too? –David R.
A: Your question calls for two answers: a legal one and a practical one. From a legal point of view, should you be checking applicants’ Internet postings? And, from a practical point of view, is it a good idea?
The steps you’ve been taking when screening tenants are the tried-and-true methods that careful landlords have been using for years to weed out risky applicants: those whose past actions indicate that they may not pay the rent or may not be considerate residents and neighbors. Although these methods are commonly used, they are not legally required.
It’s possible that a court might rule that these tools are the "industry standard," which might make them quasi-mandatory, but it’s unlikely. Running a residential rental business (unlike, say, car manufacturing) is engaged in by too many people, in too many varied ways, to conclude that it’s an "industry" with common metrics and procedures.
So because you’re not legally required to do even what you’re already doing, it’s very unlikely that a judge would consider checking for Internet postings to be a legally necessary step in the screening process. Consider, for example, the issue of screening for those who are legally required to register as convicted sex offenders.
No state requires landlords to go online and look for their applicants on these lists, and California specifically forbids them from doing so. If you’re not required to consult the Internet for information as serious as registration for one of these crimes, it’s not reasonable to think that you’d have any duty to search for evidence of partying.
This conclusion has to be adjusted, however, for one situation: If you’re hiring a resident manager, you are screening not only a tenant, but a future employee, who will have access to tenants’ personal information and even their homes. You have a duty to make sure that you do not place a dangerous tenant manager in that position — in other words, your duty to screen has changed significantly.
Careful landlords do investigative background checks for tenant managers, with the legally required advance notice to the applicant. These investigations may turn up relevant information, including the applicant’s postings on the Internet.
So much for your legal duty. What about the practical value of hopping online and checking out your applicants? It’s hard to resist, and indeed you may learn information about your applicants’ lifestyle and habits that would reasonably lead any landlord to say, "No thanks on this one."
As long as you’re looking at Web postings that are available to the public, your applicants will have no legitimate beef if you reject them based on what you see and read. But be careful — you can safely reject any applicant only when your reasons for doing so, no matter where you found the information, are legally justified, and not based on that applicant’s membership in a protected class, such as race and religion.
For example, suppose you have an applicant who passes every good-tenant test you have, but who also has a Facebook page that proudly announces her membership in a particular religion. If you reject her, and rent to someone whose qualifications were less sturdy, you’re setting yourself up for a fair housing claim.
The rejected applicant may argue that your knowledge of her religion, gleaned from your visit to her Facebook page, must have motivated your decision — why else would you choose someone less qualified? …CONTINUED
On the other hand, if your visit reveals that this person is a party animal who loves to host regular "keggers," plays the kettle drum, and collects stray cats, you have solid grounds to reject.
Q: I rent a small space in a new strip mall for my doggie day care business. My lease doesn’t say anything about code compliance or the Americans with Disabilities Act. Recently, a customer who uses a wheelchair complained that she could not get through the front door. Who’s responsible for widening the door? –Lisa G.
A: According to the Americans with Disabilities Act (ADA), a business that serves the public (or has 15 or more employees) must be accessible to people with disabilities. Who is responsible for compliance?
Buildings constructed after the enactment of the ADA must be accessible from the start (this seems to describe your building), which means of course that the landlord has the primary responsibility for designing and building accordingly.
But many times, even these buildings aren’t accessible, for a number of reasons. Perhaps it wasn’t built properly and no one has noticed or complained; or maybe a prior tenant made alterations that brought the building out of compliance.
When a covered structure is not compliant, and the lease doesn’t address the issue, some default rules apply. Noncompliance that has to do with the basic structure — which would include the width of the doorways — is normally the landlord’s responsibility.
The same is true when it comes to noncompliance that resulted from a prior tenant’s alterations. But noncompliance that is the result of the current tenant’s activities is his responsibility.
For example, you are charged with making sure that the configuration inside your business — the width of any aisles, the height of the counters — complies with ADA specifications. It sounds like the landlord is responsible for the doorway problem.
The answer to your question is pretty straightforward, especially because your lease doesn’t include a "code compliance" clause. Often, leases contain a code compliance clause but not a specific ADA-compliance clause. And then things can get murky.
A poorly drafted code clause may make the tenant responsible for compliance with "all codes, laws and regulations." Many tenants might think that this simply means that they must run their business according to code, but that’s not necessarily so. Landlords may argue that this promise encompasses ADA compliance.
When you negotiate your next lease, make sure that if you see an ADA clause and a general code compliance clause, the responsibilities of landlord and tenant are clear. Most of the time, the default rules described above make the most sense for everyone, so you’ll probably want to see those reflected in the lease terms.
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@sandbox.inman.com.
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