To protect your business you may decide that,, even though the tenant originally qualified, you need to evaluate the tenant’s potential future financial risk. A tenant who qualified under your rental standards a year ago may have had a change in circumstances that may not meet your current qualification criteria. Be sure you understand current applicable laws regarding the use of consumer reports by landlords for tenant screenings before conducting any screening for qualification. Current and pending legislation at the state and local level may regulate or prohibit the use of consumer reports for tenant screenings.

However, many landlords considering a lease renewal for a good tenant will usually review the tenant’s file, look to the tenant’s rent payment history and how the tenant has conducted himself during the lease term as the primary factors for a renewal offer.  If the tenant has fulfilled his lease obligations, i.e. taken good care of the property, does not cause disturbances, followed rental rules, etc., most landlords would prefer to retain a good tenant rather than incur the often significant costs associated with tenant turnover.

The decision for lease renewal is the landlord’s decision. If you have concerns about the tenant’s future ability to meet lease terms and conditions, you would obviously allow the tenancy to end at the lease expiration date. Alternatively, you could renew the lease on a month-to-month basis.

When you and your tenant agree on renewal lease terms and conditions, you should have the tenant update his personal information such as current phone numbers, email addresses, emergency contact information, and current employer for your records.

You will need to take documented, formal enforcement of your lease terms and conditions.  A warning notice, oral or written, may be appropriate for a tenant’s first time violation of a lease term or condition that is not a material default of the lease or a potential threat to neighbors or property.

While a tenant whose previous behaviors have never been a problem may be responsive to an oral request by the landlord to remedy the situation, the tenant must understand and acknowledge that the request is a warning, not just a conversation. Now with a second complaint, your tenant must not have understood you actually gave him an oral warning that his conduct was in violation of the lease during your talk. You should formalize your oral warning with a written warning letter to the tenant regarding his violations.

Utilizing a written warning for every such problem, even if the first, may be a better business practice for notifying a tenant of a lease violation. The  written warning letter to the tenant should provide relevant specifics of the problem behavior, including date and time; the required corrective action by the tenant to remedy the problem; citation of the specific lease term or condition that has been violated; and the consequences if the tenant fails to take corrective action for compliance.

A warning letter can be effective in some problem situations but keep in mind that a warning letter is an informal writing and does not qualify as a formal termination notice. Tenants who choose to ignore a warning letter or refuse to comply with lease terms and conditions will need to be served with a formal notice for termination of tenancy.

Formal notice to terminate a tenancy can be served with a Notice to Cure or Quit. A Notice to Cure or Quit demands that the tenant comply with one or more terms of the lease agreement (Cure) and, if the tenant does not comply, to end his occupancy (Quit). Notices to Cure or Quit are typically given after a violation of a term or condition of the lease agreement, such as nuisance, waste or illegal use.

You should always document in writing the details of any relevant landlord tenant discussion regarding a lease violation and corrective action taken by landlord and tenant. Copies of writings and Warnings and Notices served on the tenant should be kept in the tenant’s file.

Difficult to predict in timing, severity, and duration, a natural disaster can cause major damage to, even destruction of a landlord’s real property. The damage and destruction to a property can cause business interruption to and even failure of the business. A landlord should be prepared with contingency plans to address a natural disaster situation including: tenant evacuations, tenant relocations, property safety and security measures, habitability issues, lease termination, eviction, surrender and abandonment issues, insurance claims, and repair, restoration and rebuilding plans.

The following information may be of benefit to a landlord in developing a contingency plan to address events during and after a natural disaster.

Most states have adopted the Uniform Landlord Tenant Act (URLTA) in whole or in part as the basis for their landlord-tenant statutes. URLTA provisions address various rental terms and conditions, and policies and procedures including casualty damage to a dwelling unit. As noted in the URLTA, “If the dwelling unit or premises are damaged or destroyed by fire or casualty to an extent that enjoyment of the dwelling unit is substantially impaired, the tenant may (1) immediately vacate the premises and notify the landlord in writing within [XX] days thereafter of his intention to terminate the rental agreement, in which case the rental agreement terminates as of the date of vacating; or  (2) if continued occupancy is lawful, vacate any part of the dwelling unit rendered unusable by the fire or casualty, in which case the tenant’s liability for rent is reduced in proportion to the diminution in the fair rental value of the dwelling unit.”

Some states’ landlord-tenant statutes may be silent on the obligations and duties of landlord and tenant following a natural disaster. If so, a landlord can include language in his lease agreement to add detail and clarity to his rental policies and practices related to what happens in the event that a natural disaster destroys or otherwise damages a rental unit.

Lease Agreement

The lease agreement is the governing document in the landlord-tenant relationship. In the aftermath of storm, flood, or other weather-related damage to a rental unit, a strong lease agreement is important in helping to protect the rental property, secure tenant safety, and ensure business continuity. Advance preparation and planning are key elements to quickly address and resolve issues during the return to business. Of concern to both landlord and tenant is what needs to be done when (1) when a rental unit has been destroyed and is not habitable, and (2) a rental unit has been damaged but is habitable.

Implied Warranty of Habitability

The implied warranty of habitability is a legal doctrine in most states that requires landlords to offer and maintain leased premises in a safe and sanitary condition fit for human habitation for the duration of the lease.

A lease agreement is a legal contract between landlord and tenant that does not end even if the rental premises is destroyed by a natural disaster. If the rental unit is deemed uninhabitable, the landlord must take steps to formally, legally terminate the lease agreement and release the tenant from his contract obligations.

If the rental unit is damaged but considered still habitable, the lease agreement is still in effect, binding landlord and tenant to original lease terms and conditions.

Habitability issues raise concerns with tenants regarding where they are going to live, when repairs will be done, and, for most tenants, what is their rent responsibility. Landlord communication with tenants is important to keep tenants informed and working together with the landlord to continue the tenancy or move forward to lease termination.

Rent

The lease agreement should cover all rent obligations of the tenant during his tenancy. The landlord’s obligation to provide habitable housing is tied to the tenant’s obligation to pay rent as agreed during the lease terms. If the rental unit is not habitable, a landlord cannot collect rent per the lease terms. Until the lease agreement expires at end of contract term, or is legally terminated, the tenant is responsible for rent. When the lease agreement has been legally terminated and the tenant has surrendered the rental premises, the tenant’s obligation for rent is ended.

Rent Abatement

A lease agreement may include a clause that in the event the rental property is damaged, a landlord agrees to reduce the tenant’s rent proportional to the amount of damage incurred, or if the rental property is destroyed, to suspend rent until the rental property returned to habitable condition or is rebuilt.

Rent Withholding

A tenant may withhold rent in an attempt to force the landlord to comply with landlord obligations to keep and maintain a habitable rental unit. In the case of a natural disaster, damage may be beyond the landlord’s control. Rent withholding serves no purpose in a casualty event. In some states rent withholding is prohibited by statute for such an event.

Security Deposit

The issue of the tenant’s security deposit must be addressed in the lease agreement regarding what happens in the event of lease termination due to habitability issues. A tenant cannot be held responsible for damages caused by a natural disaster. A landlord can recover funds from a tenant’s security deposit if the tenant has defaulted on his obligation to pay rent and owes past due rents. If the rental unit has been destroyed, a proration of the security deposit as of the date of the casualty should be made and the prorated amount refunded to the tenant. If the rental unit is damaged but still habitable, the security deposit can in some cases be retained by the landlord.

Lease Clauses

The following sample lease clauses addressing property damage or destruction, and as allowed by statute, may be of help to provide clarity for casualty issues. Landlords may want to consider incorporating such language in their lease agreements.

• Landlord’s responsibility to repair or replace damaged rental property is determined by the terms of the lease or as required by law.
• Landlord is not liable for damage to or loss of Tenant’s personal property caused by a natural disaster. Landlord does not provide insurance coverage for loss or damage to Tenant’s property. It is Tenant’s responsibility to timely acquire insurance as required by the lease or as Tenant desires to cover loss or damage to his personal property or personal injury.
• The occurrence of any natural disaster does not relieve Tenant from his obligation to timely pay rent and other owed monies. If evacuation or other storm preparation might prevent Tenant from paying rent on the first of the month, Tenant must make arrangements to pay rent in advance to avoid late payment and associated penalties.
• Neither Landlord nor Tenant shall be required to perform any covenant or obligation in this Lease, or be liable in damages to the other party, so long as the performance or non-performance of the covenant or obligation is delayed, caused by or prevented by an act of God.
• No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the agreement, for the delay in performance of this agreement when and to the extent such failure or delay is caused by acts beyond the party’s control (force majeure).

Due to many variables including state landlord-tenant statutes and unique lease agreements for individual properties, it may be advisable for a landlord to consult with an experienced attorney knowledgeable in landlord-tenant matters to ensure understanding and compliance of applicable law.

Property damage and noise disturbances are the most frequently cited problems in renting to college students. Damage including excessive wear and tear to the property can result from having multiple occupants in the unit and frequent visitors to the property. Property damage can also occur if tenants ignore maintenance issues which could cause major damage at a later time when finally discovered.

A lease agreement should always include a clause that prohibits tenants and their guests from creating a nuisance by disturbing or interfering with the quiet enjoyment of the rental property by other tenants or nearby residents. If the tenant violates the lease by creating a nuisance with loud or excessive noise, you should take action accordingly to your lease terms and conditions regarding disturbances.

Your tenant screenings are priority risk management measures for all rental markets and demographic populations. While some student renters may have limited history in credit, employment, or independent housing, standard tenant screenings should always be conducted. No assumptions should be made regarding an applicant’s history or qualifications. Without screenings you cannot make an informed decision for tenancy.

Basic tenant screenings can include identity verification, background check, credit report, rental housing history, references, employment and income verification, and public records search. Make sure that you research applicable fair housing laws, state statutes, and local ordinances to determine what screenings are allowed or may be restricted according to state and local regulations for your property location.

You can reject an applicant who does not meet the qualification standards or alternatively, accept the applicant with conditions. It is common to require a co-signer or guarantor for the student applicant as a condition for tenancy. Usually one parent or both parents sign as financial guarantors for the student during the lease term. While the terms co-signer and guarantor are often used interchangeably, they can be significantly different and must be adequately defined by the lease agreement.

A co-signer is the same as the primary signer, being simply a signer on the lease agreement. Unless otherwise stated in the agreement document, a co-signer can have all the same rights as a tenant who resides in the property. Accordingly, all co-signers for a lease agreement should be served all notices that are served on those signers occupying the property.

A guarantor is someone who assumes certain financial liabilities for a lease, but does not actually sign the lease agreement and, therefore, has no rights to the premises. The guarantor can be made liable for all financial matters including rents and property damages or only for rents. The guarantor agreement can provide for service of notices to the guarantor(s).

Keep in mind that each co-signer or guarantor must be screened and qualified according to your standard tenant screening policies before being accepted as the student’s co-signer or guarantor and an offer of tenancy is made.

There are some common risk management practices that can help protect your business. You may you need to add or modify rental practices to better support your individual business. Many students are first-time renters and have little to no experience in an independent living arrangement. As the landlord you may need to be more actively involved in daily operations in order to stay on top of things. It’s important to be accessible to your tenants for their questions, maintenance and repair requests, and community living issues.

Communication between you and new tenant is an important part of a good tenancy. Start off by letting your new tenants know the best way to communicate with you – such as a rental portal or directly with you by phone, text, or email – and what policies and practices are in place to handle their questions, concerns, and emergencies. It’s a good idea for you to define for new tenants what constitutes an emergency, what the tenant should do in case of emergency, and what you will do in response to an emergency.

You should not take for granted that a new tenant understands rental living. New renters may have more questions than an experienced renter. You may need patience in the beginning of the tenancy to train the tenant on your rental rules, particularly rent issues, that is when the rent is due, how the rent should be paid, if there is a grace period and/or a late fee if rent is not paid by the due date, and what happens if the tenant defaults on his lease terms.

A landlord-tenant relationship is a business relationship and while you can be friendly with a new tenant, you must be professional in all your dealings and respectful of tenant rights.

You need a strong lease agreement that has clear, well-defined rental terms and conditions. During new tenant orientation the important lease clauses should be reviewed with all occupants and with co-signers or guarantors as applicable. The new tenant(s) should be reminded that the lease agreement is a legal, binding contract that governs landlord and tenant obligations and duties for the stated term of the lease. This is an important reminder to a student tenant that he is obligated for the full payment of rent for the stated lease term and the consequences of a lease default. Lease clauses for joint and several responsibility and prohibition of noise and disturbances should be strongly emphasized. All deposits and fees should be collected in good funds before the rental unit is transferred to the new tenant. Remind the tenant that the security deposit is not rent and cannot be used for the last month’s rent.

A move-in inspection of the rental unit is strongly advised and in many states is required by statute. Your lease terms and conditions should require the tenant to sign and date the move-in checklist regarding the condition of the unit at move-in date. The tenant should be advised that the same checklist will be used at time of move-out to determine if the rental unit was returned in the same good condition. It can be helpful to provide the tenant with a copy of important need-to-know rental practices such as trash and garbage collection and disposal, parking rules, laundry facilities, or other information that was covered during orientation to help the tenant get settled.

A strong lease agreement should be strongly enforced. The new renter must meet lease terms and conditions, community rules, and must know what happens when he violates his lease including legal action for material violations of lease terms. The lease agreement terms and conditions and the landlord’s rental rules help protect the tenants, the neighbors, and the property. If rules are not enforced or lease defaults are allowed to go without notice and correction, the safety and security of other tenants could be at risk.

Renter insurance coverage is another way to protect both you and your new renter. As allowed by the state’s landlord-tenant laws, you should require the renter to purchase renters insurance as a condition of tenancy. You should remind the renter that landlord insurance coverage does not protect a tenant against liability claims related to a rental or cover the tenant’s personal possessions. It is the tenant’s responsibility to protect his possessions against loss or destruction and to defend against claims of personal liability for injury to other persons or property damage.

Document everything related to the tenant and property that is relevant to the tenancy. This would include the rental application, screening reports, applicant interview notes, lease agreement, supplemental documents, tenant orientation details move-in/move-out inspections and checklists, maintenance and repair requests and completed work services.

It can be helpful to contact the new tenant after tenant is settled in but before the first rent is due to answer any questions or provide assistance or instructions as needed.

Due diligence in evaluating the business risk of a rental applicant requires the use of tenant screening as a core practice in business risk management policy.

Tenant screening assesses the applicant’s potential future risk of material default of lease terms and conditions that would result in financial loss to the landlord if the applicant were to be offered tenancy.

High risk tenant behaviors such as non-payment of rent, nuisance disturbances, property damage, and direct threats to the safety and welfare of others are liabilities that a landlord cannot afford to take on. Such behaviors are costly, time consuming, and bad business. If risk cannot be avoided, there must be a risk reduction policy that helps minimize business risk. Legal and sound business rental qualification standards, aka, your tenant screening policies, help reduce known likely risks and avoid potential risks not even yet considered. With that in place, strong lease agreement terms and active enforcement of rental policies will help protect the landlord’s business against bad tenant outcomes.

A landlord has a duty of care responsibility to his tenants to protect them from known risks to persons and property. Tenant screenings analyze certain aspects of financial, criminal, and public records of the applicant being considered. While information provided by these screenings is used for primary risk analysis, there are additional tenant screenings that a landlord conducts to support and complement contracted tenant screening services.

The due diligence of duty of care in screening applicants extends to the landlord performing his duties in analysis and evaluation of applicant furnished information. The landlord’s application form, the applicant personal interview, verifications, and references disclose applicant personally identifying data must be kept secure, confidential, and used only for permissible business purposes. Landlord verifications of employment and income, and reference checking are important practices in tenant screening risk-based assessments. The following information has been excerpted from various articles in our Tenant Screening Guides.

Verifications of Employment and Income

An applicant must prove he can meet rent terms and conditions by submitting documentation of current employment and proof of income at time of application.

Verifying an adequate source of income that the applicant will use to pay rent is important to determine whether the applicant has the financial ability from a sufficient, stable income source to pay timely rent. It is a good practice to verify the applicant’s employment and income early in the tenant screening process. If the applicant cannot qualify under the landlord’s financial criteria, there is no need to proceed with other screening reports.

Verification of an applicant’s financial ability to pay rent is a part of the landlord’s responsibility of duty of care to protect his property and his tenants. Some potential tenants overestimate their ability and means to pay rent in a timely manner. A landlord cannot afford to accept at face value the income amount the applicant enters on the application form. Verification begins with independent confirmation of the applicant’s employment and income.

In general, a landlord can request whatever financial information is required to confirm the applicant’s ability to pay under the landlord’s legal, business supported rental criteria, provided the same requirements are demanded of all applicants. For rental housing, the most common income qualification standard is a 3:1 ratio of gross monthly income to monthly rent. However, depending on various issues regarding applicant income sources, income tax matters, and unusual debt, it is sometimes necessary to consider an applicant’s details of other financial matters rather than only gross income.

There are many sources of income that may be used for rent payments. Wage earnings are the most common type of source of income and can be easily verified by a landlord.  Non-employment income must be considered on a case-by-case basis with a verifiable document, appropriate to the source of income, such as an official statement of receipted funds and statement balances.

Landlord References

Reference checking with previous landlords is an essential tenant screening. There is no better source of direct information regarding an applicant’s relationship with a previous landlord and neighboring tenants.

A landlord wants a stable, responsible tenant who is ready and willing to pay rent as agreed, maintain the rental premises to acceptable standards, and conduct himself as a good neighbor. Who could be a better source to confirm the applicant met these standards than his former landlord?

If past behaviors give indications of expected future behaviors, then past rental behaviors are key to risk assessment of a future tenancy. Former landlords can provide the type of information needed to assess potential risk. While the applicant’s interview and his application information may preliminarily qualify him to rental standards, details of a previous tenancy as provided by the landlord may tell a different story.

Reference checking is a simple step but some landlords skip over this critical screening, thinking it unnecessary if the credit report is satisfactory. Calling landlord references to determine whether the applicant satisfactorily fulfilled his lease obligations is a business safeguard. Failing to conduct all due diligence on applicants has the potential for claims of liability and negligence.

Current Landlord

An applicant may request that the current landlord not be contacted. The applicant may not have given notice or may not want the current landlord to know he is looking. There is also the possibility that the applicant thinks the current landlord will give unfavorable information, which may or may not be justified. While the request is understandable, the landlord should adhere to his stated tenant screening policies.

If one exception is made, other exceptions might follow or an applicant might think that the landlord is discriminating against him. However, the timing of the decision to contact the current landlord could depend upon whether the applicant meets other qualification criteria. If the applicant fails to meet minimum criteria there is no need to continue the process. If the applicant meets criteria, the current landlord should be contacted. Any information obtained from the landlord interview would be analyzed with information obtained from other screening reports for final evaluation.

No Previous Rental History

An applicant applying for his first rental does not have a rental history to check, but that does not mean the applicant is automatically disqualified from renting or potentially less qualified than a tenant with years of rental history. A landlord must look to other references to qualify the applicant. Commonly these other types of references are work references and personal references.

Former Landlords

If the applicant has been a renter for several years, calling former landlords may provide more honest answers to questions about rental behaviors. The tenant moved on but his records and his reputation likely remained with the landlord.

While some former landlords could be hesitant to provide detailed tenant information due to privacy concerns, a landlord should be able to confirm dates of tenancy, rental amount, and the security deposit amount.

Information obtained through landlord references should be assessed against information obtained through other types of tenant screenings. A landlord must keep an open mind regarding any mention of personality conflicts, subjective feelings, or personal preferences as expressed by a former landlord. A positive reference by a former landlord does not necessarily mean a trouble-free tenancy. A decision to offer tenancy must be based on all objective data collected by the landlord’s tenant screening process.

Checking references with previous landlords is an essential risk assessment tool and perhaps the strongest predictor of an applicant’s future rental behaviors. A landlord must however evaluate an applicant’s qualifications using a variety of tenant screenings, not just one type of assessment. By using multiple types of screenings, if the tenant has been a problem tenant in the past there will likely be red flags that show up in other screenings.

Personal References Screening

Contacting applicant supplied personal references is often an under-utilized screening tool.  Many landlords express the opinion that personal references provide little value in the tenant screening process and are therefore a waste of landlord time.  Persons contacted as personal references may be reluctant to offer information or information shared during the screening may be biased in favor of the applicant or not relevant to a housing decision.

Most applicants are not likely to provide the name of someone who would give a bad reference. The fact that information obtained from personal references can be difficult to quantify and assess in objective terms also leads some landlords to use this source of information infrequently.

The value of personal references as a screening tool incorporated into the full screening process should not be readily dismissed. By contacting personal references the information supplied by the applicant can be cross-checked with the reference’s responses. This allows the landlord to help determine the truthfulness of the applicant’s statements as well as to identify red flag issues that may indicate potential problems.

While some landlords may consider personal references to be self-serving for the applicant, personal references should not be overlooked as a good source of information. In some circumstances, e.g., when first time renters and students are entering the rental market, and former homeowners are returning to the rental market, the information provided by personal references can make a difference in decisioning if insufficient data is returned from other screening sources.

Personal references serve a different purpose than landlord references. A personal reference should be an individual that has never rented to the applicant. Personal references are character references offered by family, friends, business associates, community leaders, or others who can personally vouch for the applicant. A reference from an individual who has had a long-term relationship with the applicant can provide meaningful knowledge of an applicant’s character.  A reference from a parent may provide different information which is more protective of the applicant’s character.

The contact information of personal references may prove to be of help at a future date if the applicant becomes a tenant, but cannot be reached for legal service or in case of an emergency. Personal references listed by the applicant may be of help in the landlord contacting the tenant as necessary.

Documentation

Written documentation of verification of employment and income and reference screenings should be kept in the applicant file to substantiate the housing decision and defend against applicant claims of discrimination.

As warranted by a tenant’s material default of the tenant’s duties and responsibilities under the lease terms and conditions, it may become business necessity for a landlord to take legal action to physically remove the tenant and the tenant’s personal property from the rental unit.

A Lawful Eviction Process is required

To legally re-gain possession of the rental premises, a landlord must use the court system to conduct an eviction. A landlord has the burden of proof to show that there is a material breach of the lease agreement or specific circumstance that should be remedied by termination of the tenancy. The landlord must show not only a tenant breach that permits termination of the lease, but that he complied with all statutory procedures of the legal process. A landlord’s failure to comply with the proper legal procedures for the court of jurisdiction can result in a dismissal or loss of the eviction lawsuit.

Common Reasons for Eviction

The most common reasons for eviction are non-payment of rent, chronic late payments of rent, or repeated violations of lease terms. Lease violations could be a breach of the tenant’s statutory duties regarding committing waste or nuisance, health and safety violations, property damage or conduct that interferes with other tenants’ quiet enjoyment of the rental premises.

Required Evictions

There can be circumstances when a landlord must take immediate legal action to evict a tenant. If the tenant engages in illegal acts, such as drug dealing, in most states the landlord must take immediate legal action to evict the tenant or risk substantial criminal penalties and/or possible confiscation of the rental property according to public nuisance abatement and forfeiture laws.

Illegal Evictions

Any action taken by a landlord outside the legal system to force or intimidate a tenant to move from the rental premises is illegal. While the tenant’s default may be egregious behaviors, a landlord cannot use the tenant’s conduct to excuse his own behavior. A landlord has no valid defense for a self-help eviction against the tenant. The legal process to evict a tenant can be time consuming. The landlord will be anxious to resolve the issue, re-gain possession of the property and potentially an award for past due rents and damages. But, by trying to circumvent the law in a hurry up attempt to force the issue, a landlord opens himself up to legal actions for wrongful eviction and tenant claims for trespass, assault, battery, slander, libel, and intentional infliction of emotional distress.

Self-Help Eviction Tactics

A self-help eviction could be a direct or indirect action by the landlord to force or scare the tenant into moving. It is illegal for a landlord to:

• Threaten the tenant with violence
• Behave in a harassing manner toward the tenant
• Attempt to physically remove the tenant from the rental premises
• Post threatening notices on the tenant’s door
• Lock out a tenant by changing all the locks on the rental premises
• Shut off the essential utilities such as electric, water, and gas services
• Refuse to make repairs as required for habitability
• Decrease or deny tenant access to services or amenities
• Remove the tenant’s personal possessions from the rental unit
• Dispose of the tenant’s personal possessions

Consequences and Penalties of Self-Help Evictions

The consequences of a landlord illegally conducting a self-help eviction vary from state to state. In some states the court will determine the amount of damages awarded to the tenant. In other states, a tenant may sue the landlord for any amount of damages. Actual damages including tenant compensation for lost or stolen personal property, temporary housing and essential services, punitive damages, civil penalties, or money damages as specified by statute may be awarded to the tenant. Statutes may hold the landlord responsible to pay the tenant’s court costs and attorney fees and may give the tenant the right to stay in the property. If the tenant elects to terminate the lease, the landlord must return the entire security deposit.

Retaliatory Eviction

A tenant’s exercise of his legal rights can sometimes lead to the landlord taking retaliatory action against the tenant, including eviction or changes in lease terms and conditions.  In most states a tenant is afforded protection from landlord retaliatory actions when the tenant exercises a legal right such as:

• The right to complain to the landlord regarding health and safety problems of the rental unit.
• The right to file a complaint with appropriate government agencies or local authorities regarding unsafe, unhealthy, or other conditions that render the rental unit/premise unfit, uninhabitable or prevent the tenant’s use of quiet enjoyment of the premises. As a result, the tenant’s actions may cause the public agency or authority to conduct inspection of the rental unit/premises that could result in a notice for corrective actions or citation to the landlord for unfit housing.
• The right to remedy the landlord’s failure to repair and maintain the rental unit/premises through such means as: repair and deduct, rent withholding or filing a lawsuit.
• The right to be free from discriminatory conduct based on protected classes, federal, state, and local. The tenant has the right to file a complaint with appropriate administrative agencies or the courts if the tenant feels that his rights have been violated.
• The right to privacy by limiting a landlord’s access to the rental unit to permissible purpose for entry and statutory notice requirements.
• The right to participate in political activity or organize or join a tenants union without fear of intimidation or harassment.

A retaliatory eviction is illegal. A tenant has an affirmative defense to a landlord retaliation eviction. The landlord has the burden to prove there was a valid business reason of a non-retaliatory nature for his actions in filing an eviction.

Most state landlord retaliation laws will presume a landlord has a retaliatory motive if the time between the tenant’s  action of exercising a legal right, such as making a claim to a regulatory agency for health and safety concerns, and the landlord’s action, filing for the eviction, is within a short period of time. The period of time varies in those states that have anti-retaliation laws from 3 months to one year. In general a landlord filing an eviction action within 6 months of a tenant’s exercise of legal rights is presumed by the courts to be a retaliatory act.

A landlord should carefully consider every action taken as response or in reaction to a tenant’s exercise of a legal right Any landlord activity that is or may be perceived as illegal, threatening, humiliating, abusive or invasive towards a tenant, that interferes with the tenant’s rights or violates the tenant’s privacy could be used by the tenant to defeat a landlord’s eviction action. The landlord should view his actions from a perspective of how those actions might be perceived by a judge. The landlord’s prior conduct towards the tenant and his entire relationship with the tenant may also come into scrutiny by the court during eviction proceedings. The presumption of retaliation can be difficult to overcome in a subsequent eviction action.

While the legal process of eviction may cost the landlord considerable time and expense, there is no other legal alternative for removing a tenant from the rental property. The tenant is entitled to due process of law and the landlord is obligated to follow applicable statues in the eviction process.

Due diligence is critical to an informed, quality hiring decision. Social media background screening may be conducted to provide an employer with additional information to evaluate a job candidate’s qualifications for employment.

Traditional employment background screenings generally provide verifications of the candidate’s identity, employment history, education, trainings, licensure, and demonstrated work skills, as well as a consumer report and criminal conviction history. Social media screening is different. Social media screening can provide a bigger picture view of the candidate’s personality, character, interests and social interactions. This behavioral “real life” look is one of the reasons some employers utilize social media screening to help determine who the person really is and the type of employee he might become. However, using social media to learn more about the candidate can also put an employer at risk for potential liabilities in claims of discrimination and negligent hiring.

Some employers treat social media screening as enhanced screening. The general opinion is that the more information that can be obtained about a potential hire, the better the chance that the employer will make a good hire. Too much information carries a risk that the employer gains access to information that may violate the candidate’s rights to privacy and legal protections against discrimination.

There are many potential risks in viewing a candidate’s social media. Protected characteristics and membership in a protected class may be evident in the social media profile and content. Some employers take the position that an equal risk is inherent during a personal interview with a candidate. Observations of a candidate’s appearance, mannerisms, language and speech, are made by the employer during a personal interview with the candidate. There is also a risk that during an interview a candidate reveals information about himself that an employer cannot and should not consider for employment purposes. Becoming aware of a protected class status or personal characteristic does not require the employer to make use of that information in a hiring decision. It does require the employer to respect and protect the candidate’s rights against discrimination and ensure his hiring process is conducted professionally and objectively.

A difference between the personal interview and a social media screening is the formal recognition by the candidate that he, the candidate, face-to-face with the employer, will need to be on his best behavior to be considered for the job. The candidate’s answers may be scripted to show the candidate in the best light. In contrast, the social media content was created by the person as a personal platform to share information with others in a non-work environment. Most likely the posts are informal in nature and design with little thought as to how they might be interpreted or used by a potential employer. The candidate’s personal persona may be quite different from his professional persona. If the employer views reading social media content as an informal act rather than as part of the formalized hiring process, the employer may lose focus in evaluating the candidate’s qualifications to meet professional job standards and responsibilities.

By screening the candidate’s social media, the employer may learn more than he wants to know, more than what he needs to know for business purposes, and incur potential liability for that knowledge. If an employer uses information about protected class and characteristics that the employer obtained from a social media screening as a basis for a hiring decision, there is cause for a rejected candidate to take legal action against the employer for presumed discriminatory practices.

Legal Risks

The employer’s exposure to a candidate’s protected information under federal, state, and local anti-discrimination laws is a major drawback to using social media screening. From social media, an employer could discover protected class status of race, color, religion, sex, national origin, disability or familial status, protected characteristics such as age, marital status, military status, gender expression, gender identity, or other protections afforded by state and local laws. Information may be posted regarding medical conditions, family issues, or illegal activities.

There can be an inherent bias or expressed favoritism in hiring decisions that must be overcome with education, training, objectivity and provable data to properly, fairly analyze and evaluate candidate qualifications. Social media is not an objective source of information nor can it be relied upon for accuracy or without bias itself. An employer in reviewing social media might unconsciously factor in some or all of the profile or content data in the hiring decision. A job candidate who was not selected for employment may feel there was bias in the hiring decision and make a claim for employer discrimination.

There is another way that an employer could create bias and potential claims of discriminatory treatment. All job candidates should receive the same screening treatment with no exceptions. If an employer selectively chooses which candidate to screen with social media, the employer has discriminated against others. What if the chosen candidate has set privacy restrictions on his social media account? Does the employer consider this a negative event when comparing candidate qualifications? What if a candidate chooses to not participate in any type of social media? Would this candidate receive equal consideration with other candidates who do participate in social media? Does the employer has a policy and practice to acknowledge relevant situations and offer an acceptable alternative screening that would provide similar information? Selective screening or different screening unsubstantiated by business necessity leads to potential risks of liability.

Claims of discrimination in the hiring process are one of an employer’s greatest legal concerns. Equally concerning is the employer’s potential liability for negligent hiring related to social media profile information. If an employee committed harmful acts at work (e.g., violent behavior), and information was available on that employee’s public social media profile that could have predicted such behavior, the employer could be held liable for negligent hiring by ignoring that information when the hiring decision was made.

As a positive note, conducting social media screening can provide an employer with a broader view of a job candidate as an individual at a much lower screening cost. However the employer has no assurance of the truthfulness of information presented nor can the data be verified through other legitimate sources. An employer considering social media screening may need to consult with a legal professional to determine the correct, compliant strategy to effectively screen job candidates using social media.

Conducting Social Media Screening

There are some steps an employer can take to reduce potential legal risks in conducting social media screening. An employer should:

• Ensure objective screening practices are in place with adequate documentation on how to analyze and evaluate candidate credentials to job requirements and standards.
• Ensure consistent application of policy and practices to screen every candidate in the same manner and method. An employer cannot selectively choose to social media screen one candidate over another.

• Conduct a personal interview with the candidate to preliminarily qualify the candidate and before advancing to the next phase of the hiring process. An employer should never conduct social media screening before conducting a personal interview. An employer should not have prior knowledge of the candidate’s personal information that would cause the employer to ask the candidate interview questions that are discriminatory and therefore illegal.

• Advise the candidate that social media screening is a part of the standard hiring process policy and practices and that the candidate will need to consent to standard screenings before the employer conducts a social media search. Candidate consent to screenings should be in written authorization form.

• Use a third party Fair Credit Reporting Act (FCRA) compliant screening company to conduct social media screening. Social media screenings must be in compliance with FCRA regulations the same as traditional background screenings. A third party screening company offers protection to the employer in that the screening report will have been scrubbed of all protected characteristics. The screening company provides a job-related report to the employer minimizing the chance of bias in decisioning. The third party company does not make a hiring decision.
• Conduct social media background screening as the last step in the hiring process. A better practice would be to screen social media after a making a contingent job offer to the selected candidate. The offer should be contingent upon a satisfactory screening of social media profile and content.
• Document hiring decisions with a printed copy of social media content page or screen shot which was the basis for the hiring decision. A written document of the reasons for rejection should be attached to the printed content page as a paper trail and as a defense against potential future claims of hiring discrimination.
• Consider the source of the screening information with focus on what the candidate has posted, not on comments that others have said about him/her. An employer may wish to discuss with the job candidate any issues that may be of concern. This will allow the candidate an opportunity to provide additional information or correct misinformation.

At the present time there is no clear and conclusive data that would suggest conducting social media background screening produces a quality hire or prevents a bad hire. Nor is there evidence that social media screening should replace traditional background screenings. Taken as a complement to traditional screenings and conducted in a legally compliant manner with appropriate safeguards for an individual’s privacy and anti-discrimination protections, social media screening can be beneficial in a whole person approach to quality hiring.

Landlords with rental properties in areas that are at risk for hurricanes, flooding, and storm surges must take certain precautions to protect their properties and ensure tenant safety during storm season. Landlords can help protect the safety of their tenants and reduce damage to their properties by providing tenants with information to resources that address weather issues such as how to prepare for a hurricane, preparing an emergency kit, and tips for safe shelter during a storm. Basic information about evacuation routes, locations of emergency shelters, and property preparations in the event of a weather emergency should be discussed during tenant move-in and provided as a tenant hand-out for later reference during tenancy.

A landlord has a duty of care towards his tenants to be prepared to handle weather emergencies. Tenant safety and property protection should be the priority focus in developing emergency plans for shelter and supplies. Communication with tenants is important before and after a storm. Tenants should know what protections could be offered by sheltering in place, what should be done when the storm warning is issued, and what must be done for safety when the storm hits. Tenants should be advised that essential services to rental units such as power, water, and utilities, may be interrupted as a result of a storm. Tenants should be prepared with emergency kits and sufficient food and water supplies for a minimum of 72 hours as a precaution for outages or damages.  If the tenant will have specific responsibilities under the lease agreement for safety measures and damage control – e.g., for a single-family home rental – the lease agreement should clearly define the roles and responsibilities of landlord and tenant.

Before the hurricane season arrives, a landlord should conduct a property inspection to identify repair or protective work that must be done. to keep wind and water out, roof shingles secured, and any openings, cracks, or holes sealed against moisture.