Failing to provide adequate detail of policies and practices or falling silent on important landlord-tenant issues (wherein a lease does not address an issue) can prohibit or limit a landlord from exercising his rights in enforcement of lease terms and conditions or in a defense against legal actions. There may be specific lease language required by state statute or local ordinance regarding lease issues of deposits, fees, landlord disclosures, legal notices, or other items. which must be included in the lease.

Many landlords include lease clauses that address such landlord-tenant issues as:

• Number of Occupants
• Use of Premises
• Severability Clause
• Joint and Several Clause
• Guest Policy
• Pets Policy
• Landlord and Tenant Repair and Maintenance responsibility
• Landlord Entry to Rental Unit
• Landlord Property Inspections
• Noise and Disturbance
• Assignment/Sublease
• Utilities Responsibilities
• Tenant Renter Insurance
• Lease Defaults/Grounds for Termination
• Move-out Procedures

Lease clauses that that violate applicable federal, state, and local laws; for example, Fair Housing, Americans with Disabilities Act, landlord-tenant statutes, zoning laws, building codes, health and safety codes, etc. are illegal.

The lease should not contain any provision that requires the tenant to waive his rights under law. As examples, a tenant cannot waive the landlord’s responsibility of the warranty of habitability or agree to hold the landlord harmless for breaches of the warranty. A lease provision that prohibits the tenant from holding the landlord responsible for the landlord’s negligent acts or other attempt to circumvent landlord-tenant law is illegal.

A good lease agreement should include a clause regarding Rules & Regulations (R&Rs). The clause would make it clear that the R&Rs have the same force as a lease clause and state that they may be modified from time to time for the convenience, safety, or welfare of other tenants or even of neighboring properties. The tenant should be required to sign his acknowledgement of the R&Rs at lease signing.

Lease clauses cannot be modified by R&Rs changes in any way that could be considered more restrictive or otherwise detrimental to the tenant. Accordingly it may be the better practice to avoid covering the same issue in both documents.

Many issues can be included in Rules & Regulations rather than being included in the lease agreement. As examples, rules and regulations for items outside of rental units could include:

• Balcony/decks/ terrace must be kept clean and in good condition.
• No drying of clothes over deck railings.
• Prohibited use of property common areas for activities harmful to buildings, grounds, or landscaping.
• Restrictions on storage of tenant property in halls, stairways, or common areas.
• Garbage and trash storage and disposal.
• Parking regulations and restrictions parking such as parking confined to outlined or assigned spaces, towing if improperly parked, no parking or storage of RVs, trailers, boats, or inoperable vehicles on rental property.
• Use of pool, fitness center, and other amenities including guest use.
• Laundry room rules.

• Pet rules.

• No bird or animal feeders allowed.
• Lockout and lost key charges.
• No storage of dangerous materials on rental property.

Whether an issue should be a lease clause or an R&R item depends on various factors including how material the rule/regulation is to the lease itself. If modified, would the R&R item become an issue that would need to be defended in court? All major landlord-tenant issues should be addressed in the lease agreement.

Employment screenings can reduce the risks of negligent hiring, negligent retention, internal threats, and workplace violence. Employment screenings are risk mitigation measures to protect the organization against liability for employee acts and to protect the safety of the workforce.

One-time employee background screenings conducted at time of hire may not be adequate to fully protect the employer from potential liability of internal threats or harm from employees post-hire. If pre-employment screenings are not supported by post-hire screenings, there is a gap in the employer’s security management practices. Continuous background screening of employees can help close that gap.

Due diligence is required to identify and assess short-term external risks posed by applicants and long-term internal risks posed by employees. The employer is charged with developing and implementing a comprehensive risk management strategy to protect the organization during the hiring process and throughout employee tenure.

Employee problem behaviors can lead to claims of negligent hiring or negligent retention. The legal doctrine of negligent hiring holds employers to a duty of care to assess the nature of employment, the degree of risk the employment poses to third parties, and to conduct reasonable investigations to ascertain the applicant is competent and able to perform job duties. Duty of care extends to reasonable measures to ensure the safety and security of the employee workforce. The employer can be held responsible for the conduct of the employee if the employer failed to use due care in the hiring and retention of the employee. The organization cannot cite lack of knowledge as a defense against claims of negligence in hiring and tenure. The courts will hold the organization to the legal doctrine of respondeat superior, that is, the organization should have known. The burden is on the employer to be alert to potential risks and to take appropriate steps to resolve matters in a timely, responsive manner.

Continuous employee background screenings, also called integrity screenings, monitor in real-time employee background data to flag events that could pose a risk to the organization and its workforce. Events can be specified by the employer and could include changes in credit and criminal history. A verification process is then initiated according to parameters set by the organization.

There are a number of factors to consider before incorporating a continuous background screening program into the organization’s risk management policy and practices.

Implementing policy and practices for continuous employee background screening may depend upon the nature of the business, the type of industry, industry requirements, the size of the organization, the makeup of the workforce, and assessment of risks.

An employer must exercise due diligence to understand federal, state, and local laws for compliance responsibilities, limitations and restrictions for continuous screenings. As a best practice an employer should seek legal counsel to fully develop and implement a compliant continuous screening policy and practice for his organization and the jurisdictions governing his work locations. This may be of particular importance regarding potential liability of the employer under the Fair Credit Reporting Act (FCRA) and applicable state laws regarding the use of consumer background checks for employment purposes.

Employers must have clear communication and procedures for employee informed consent and authorization to conduct employee background screenings. In general, employers are required to comply with the Fair Credit Reporting Act (FCRA) regarding the use of background checks for employment purposes. Employee written consent is required before a background check can be initiated. There are specific requirements regarding consent, authorization, disclosure, and notices that must be followed for legal compliance. Many states and some municipalities have requirements regarding the use of background checks for employment purposes including consent requirements for both pre-employment screenings and post-hire continuous screenings. While a one-time written consent and authorization for background checks may be permissible for many jurisdictions, in some jurisdictions an employer is required to notify and obtain consent for background checks each time a background check is conducted. The employer must determine the compliance level required by applicable jurisdiction.

In addition to the FCRA, the Equal Employment Opportunity Commission (EEOC) Guidance requires employers to take into account the nature and gravity of the offense, the nature of the job, and how long ago it occurred, before taking any employment action. Due diligence will be required if there are applicable state and local employment laws regarding employment actions.

Selecting a screening partner experienced in background screenings, continuous screening process technology, legal compliances, and industry requirements is an important task in the risk management continuous screening program implementation. An employer will want to conduct due diligence with a screening provider to determine how the process works including the primary source of the data, the accuracy of data extracted, legal obligations under the FCRA for consent and permissible purpose, other legal obligations under applicable federal, state, and local laws, data security protections, and provider requirements for implementation and data reporting to the employer.

The organization’s continuous screening policy should detail how the organization will conduct the process, manage informed consent from employees, communicate with affected employees and handle matters if data is flagged for risk and review.

Communication of policy and practices is important to ensure employees understand the duty of care responsibility to protect the safety of the workforce by implementing a risk mitigation practice. Employee handbooks should include language on what will happen if the employer discovers employee falsehoods or omissions regarding job qualifications/requirements post-hire.

Applications should clearly state employment policies including language that material falsehood or omission of employee information in any form could result in termination regardless of the discovery time frame. Employee consent forms should be clear that the employee is giving permission for employment screening and as permissible by law, consent to future screenings during employee tenure.

An important practice in the policy is what actions will be taken by the employer if potential risks are discovered, or if actionable events have been recorded. There should be written procedures to follow if derogatory information about an employee is discovered or a record of a criminal offense is found. Identification of a risk should not mean an automatic termination of an employee without further review and/or legal consultation. An action or a security review and investigation should be based upon business justification taking into account the connection between the negative information and the nature of the work being performed. The nature of the offense, the gravity of the offense, the employee’s job responsibilities, the time period in which the offense occurred, and all relevant information should be considered in an individual assessment of the situation. This practice should be included in the employee handbook.

In developing the continuous screening policy and practice an employer must give consideration to a situation where the employee refuses consent to the continuous screening program. Depending upon the parameters of the screening program and the application of the program to the entire workforce or to selected segments of the workforce for industry/ high risk requirement, the employee may need reassignment of duties or separation from the organization.

There can be positive outcomes from implementing a continuous employee background screening program. The program documents the employer’s due diligence for workforce safety. Written documentation may help defend against claims of negligence at hiring and retention, and other legal actions. Risk mitigation requires continued effort to identify and address potential threats. With continuous screening data is refreshed as conditions change. The employer’s ability to identify current risks can provide more timely and appropriate responses to issues.

Continuous screenings can discover information that was overlooked at the initial screening, erroneous information, or information awaiting process through the court system at the time of the initial report. With subsequent review the employer may find that the employee does pose an insider threat that should be investigated and appropriate action taken.

An added benefit is that post-hire screenings can identify expired licensures, certifications, permissions, or coverages. An expired license or certification can hold the employer responsible for liability issues if the employer allows the individual to work without the proper licensing and/or certifications.

There can be negative repercussions if post-hire screening is not thoroughly researched, developed, and implemented. Inadequate or incomplete attention to detail can bring about employee backlash and discontent. If employees receive the wrong or mixed message about a continuous screening policy, the employee morale and possibly employee productivity can be negatively affected. Long time employees may become distressed thinking they are under constant scrutiny and could be subject to dismissal at any time. Applicants may withdraw from consideration for employment if a screening policy appears arbitrary or without business justification.

Improper, inadequate, or faulty implementation of a screening policy can have serious legal consequences. A wrongful termination suit may be the least of the employer’s problems if his policy has not been legally vetted, properly implemented, and adequately supervised.

There are ways to mitigate effects on employee morale and corporate culture. If a continuous screening has been implemented new hires will have acknowledged the screening policy and given informed consent at orientation. If a continuous screening is newly implemented, there is potential that some employees will have difficulty accepting policy and practices. However employee education on the business need for the practice and the employer’s commitment to ensure a safe and secure workplace can help ease the stress and fear of new practices.

A continuous employee background screening program is an early alert system to flag potential risks to the organization from employee acts that can be internal threats or dangers to others. An employer should monitor such events, investigate accordingly and take proactive steps to mitigate such risks.

Leads for filling a vacancy can come from personal referrals from tenants, family, friends, co-workers, business contacts within the community, rental property websites, online rental listings, traditional advertising, and social media. Qualifying leads to a good lead, that is, determining the likelihood of converting a lead to a prospect interested in becoming a tenant is the landlord’s opportunity to fill a vacancy quickly.

Posting an online rental listing is a common advertising method to bring in a number of responses for initial qualification.  When posting the notice of vacancy, a landlord hopes to create interest in his rental unit that can be soon converted to a tenant in residence. Rental prospect response to the listing provides pre-screening opportunity to gather information, assess risk, and qualify the prospect to minimum rental standards.

An online listing should include basic rental information such as the street address, community name, number of beds/baths, square footage, rent, lease term, and deposits. The listing should include interior photos, as well as a few photos of the building exterior and grounds. A floor plan is an additional listing feature that many renters find beneficial in their rental searches. Having this basic information in a rental portfolio helps to reduce landlord time in qualifying leads. Having the street address and rent amount in the listing allows viewers to assess their interest by visiting the property and to pre-qualify themselves using the rent price point. Contact made with the landlord after viewing the rental listing is a prequalifier in itself. The prospect is informed and receptive to committing time to learn more about the rental unit/community.

Landlord response to an initial contact is important to project a favorable first impression of the landlord’s rental community and an opportunity to market all features and amenities to the prospect.

Qualifying a rental lead by asking a prospect a few important questions can quickly move the rental process forward to filling a vacancy. Whether the initial contact is by phone or in person, it must not be used as a means to screen out prospects by asking leading questions or stereotyping prospects by language and speech patterns or by any other characteristic that is prohibited by federal, state, and local fair housing laws.

A landlord should have a standard set of questions to ask all prospective renters who contact him regarding a vacancy. Using a set of standardized questions will help avoid claims of discrimination.

When a landlord prequalifies a prospect, the objective is to determine as quickly as possible in a professional manner whether the prospect is a viable candidate for tenancy with potential as a good long term tenant. Information gathering, as long as it is done legally and with full knowledge of applicable laws, particularly fair housing laws, is important to selection of a quality tenant.  A few questions can be well worth the effort in order to better protect the rental investment by reducing potential risks of a bad tenant.

How many questions should a landlord ask a prospect? Too many questions may turn a prospect away. A landlord should keep in mind that the simple act of a prospect making first contact is a promising lead. If a landlord prioritizes prequalifying questions to those questions that confirm interest in a property showing and becoming a renter, a prospect should be open to respond to learn more about rental requirements.

What are some examples of questions?

“How did you learn of vacancy?”

A landlord can use this information to determine the effectiveness and placement of his advertising/marketing efforts.

“When do you wish to move in?”

A response that the prospect wants to move in immediately or within a period less than 30 days could signal a problem for any number of reasons. Responses that suggest the prospect has a pending eviction, past due rents or other lease violations at his current rental should be a red flag to the landlord.

“How long have you lived at your current address?”

A landlord may wish to determine if the prospect is still under lease with his current landlord.

 “Why are you moving?”

Typical responses are to get more room, changing jobs, or to be near family. If the answer indicates a problem with the previous landlord or neighbors, it could be a red flag that requires additional information.

“How long do you plan to rent?”

Most landlords are looking for a stable, long-term tenancy, typically a one-year lease agreement. A response such as “it depends” may indicate a prospect isn’t committed to a firm decision for moving or has other issues that the prospect is unwilling to share with the landlord.

“How many people will be living in the rental property?”

Landlords set occupancy limits based on regulations and codes per local building, health, and safety standards as well as limitations set by property size and mechanical/system/utility constraints. A maximum number of occupants for square footage space may be specified by local ordinances. If the number of potential occupants exceeds recommended standards or the prospect indicates an uncertainty regarding the number of occupants (i.e., it varies), it could be a potential red flag for the landlord.

“Our rental process includes written application, screening fee, tenant screening for credit report, background screening, verifications for identity, employment/income, rental housing history, and landlord references, security deposit and first month rent.  Will you be able to meet our rental requirements?

If there is hesitation on the prospect’s part to agree to the rental process, the landlord may decline to go forward with the preliminary screening/information process.

Additionally, the prospect should be made aware that all adults wanting to live in the unit are expected to complete full tenant screenings and to sign the lease. Possession of the rental unit will not be given unless all applicable fees, deposits, and rents are paid per terms and conditions of the lease agreement. If the prospect counters with alternative arrangements, such as payment installments, the landlord should be prepared to answer according to applicable landlord-tenant statutes for his state, and his previously stated business policies and practices. It may signal a red flag to the landlord if the prospect is not prepared to pay required move-in funds at signing.

Other Rental Policies

A landlord may want to provide information on other rental policies, such as pets, parking and vehicle registration. If the rental unit and property are smoke-free, a prospective tenant should be aware of such restrictions.

Other Questions

After a landlord and prospect have discussed the rental terms and conditions, policies and practices as noted above, the landlord should ask the prospect if he has any other questions. Although much information was already provided, the prospect may have thought of other issues that need clarification or should be discussed regarding his rental situation.

Final Question

If the landlord determines that the prospect is a potential candidate for tenancy, the landlord should proceed with scheduling an appointment for showing the unit using appropriate guidance and technology for an on-site visit or virtual tour.

Documentation

It is a good business practice to keep written, dated documentation of all responses to the advertising of a rental vacancy, including the corresponding action that was taken, such as application submitted, prospect declined to apply, or the prospect did not qualify to stated rental standards, and the address/unit number of the advertised vacant rental unit, to help defend against possible claims of discrimination at a future date.

In summary, pre-screening a potential tenant is a risk management measure that saves time and money for a landlord in the overall qualification and selection process of a quality tenant.

Local market conditions may be a determining factor in offering rental concessions. In order to quickly fill a vacancy and/or be competitive with other rental properties in the area, landlords could offer financial incentives, attractive lease terms, or unit upgrades to attract new renters. For landlords with rental property in less desirable neighborhoods, a rental concession could attract renters who may not have otherwise considered the property.

Rental surveys in many markets show housing affordability is the most important criteria to renters when considering a move. A lease concession that allows the tenant to better manage his rent expenses will generate more interest than any other type of rental incentive.

Types of Incentives

The following types of incentives are some of the most common rental concessions.

Rent discount

A landlord could discount a rent rate as an incentive for a new tenant to sign a multi-year lease. However, if the tenant defaults on the lease by moving out before lease expiration date, a landlord has lost income by offering a rent concession as well as incurring an unexpected vacancy. A landlord should consider a lease clause that addresses tenant default on concession terms by stating what remedies will be taken to cure the default.

Free month of rent

For some tenants a lease concession of one month of free rent is a very attractive offering. However, a landlord should make sure his lease terms and conditions clearly state how this concession will be applied and what the renter must do to earn the concession. As example, the free month of rent may be earned once the tenant has paid full and timely rent for a specified number of months into the lease term.

Security Deposits

Offering a reduction in the security amount or a waiver of a security deposit may be used by larger rental complexes as a rental concession but is generally not a good business practice for an independent landlord. A security deposit is the landlord’s protection against a tenant’s property damage or unpaid rent. Waiving the deposit or allowing the tenant to pay less than one month rent could be a risky business practice.

A new tenant could request to pay the security deposit amount in monthly installments. This could indicate a cash flow problem and would usually not be considered a good business practice. However in some states, there are provisions by state statute that allow tenants to pay the security deposit in installments.

Unit upgrades

Improvements to the rental unit can be an attractive rental incentive for many tenants. Upgrades can be the landlord’s choice of certain upgrades or a tenant may be able to choose an upgrade from a list offered by the landlord.

Notification and Disclosure

A landlord should research whether state and local laws require notification and disclosure of tenant incentives or rental concessions before entering into a lease agreement.

Documentation

A landlord who provides a lease concession as a rental incentive should keep documentation of relevant information of the offer, acknowledgement, and delivery of the concession. An offer of a rental concession must be provided to eligible tenants in a fair and consistent manner to avoid claims of discrimination. It can be a best practice to keep records by date and detail of offers made, responses received and confirmed acceptances. The records should include a copy of the offer as published or communicated in any media including dates advertised, beginning and ending date of the offer and terms and conditions of the offer.

The lease agreement should include clear language regarding a concession, details of the terms and conditions to earn the concessions, and the available remedies if the terms and conditions are not met by the tenant.

A landlord does have valid concerns about dog bite liability. For some landlords, the liability concern can be a determining factor in a decision to allow pets on the rental property.

A dog bite victim’s medical costs are usually reimbursed through the dog owner’s homeowner insurance policy. When the dog owner is a renter and does not have adequate renter insurance coverage, the dog bite victim may choose to include the landlord as a defendant in a personal injury lawsuit. A landlord is perceived as having more assets and better insurance coverages than the typical tenant dog owner.

Generally, landlords are not automatically held liable for dog bites. However, landlords have a duty of care to take reasonable measures to ensure their tenants’ safety and security on the rental property. An incident of a dog bite injury requires investigation of the facts to determine whether the landlord performed to his duties and responsibilities for tenant safety.

Landlords can be held liable when their actions or their failure to act increases the risk for injury or damage from an aggressive or dangerous dog attack. A landlord could be held liable if the landlord had actual knowledge that the dog was dangerous or should have known that the dog was a threat to others. If the landlord did not have legal authority to remove the dog from the rental premises, the landlord must take appropriate actions for warnings of danger, as for example, by posting Beware of Dog signs on the rental premises.

For pet friendly rentals, the tenant should be required to acknowledge in a signed pet addendum that if the dog displays vicious, aggressive behavior towards others that constitutes a threat, or becomes a nuisance, the tenant must remove the dog from the rental premises. If the tenant failed to remedy the situation, the tenant breached the lease and is subject to legal action as detailed in the lease terms and conditions. If the landlord’s failure to enforce his lease terms and conditions for landlord removal of the dangerous dog, the landlord is negligent and could be held liable for any injury and damages.

If the landlord fails to maintain the rental premises to a safe condition which allows the tenant’s dog to escape the rental unit or rental property, and the dog bites someone, a landlord could be held liable for negligence if the landlord knew or should have known about a property defect or item needed repair. The landlord’s failure to maintain the property incurs liability for the injury even if the injury did not take place on property owned by the landlord.

Asking for feedback from tenants moving out can be a good business practice to help improve property operations. When departing tenants provide feedback, a landlord can use their responses to evaluate rental policies and practices to determine whether property operations need changes or additions. As an alternative to a discussion between landlord and tenant, the landlord could provide a printed form using a rating scale to indicate tenant satisfaction with maintenance/repairs, rent payment options, rental rules, amenities access/use, or other rental matters. The printed form could include a section for optional comments or suggestions for property improvements.

Questions that could provide feedback to improve business operations include:

Why is the tenant moving?

Many landlords track reasons for tenant move-out. Was the move-out due to family matters, opportunity for a better place or bigger place, a place with more amenities, or was it related to property management issues such as rent affordability, repairs and maintenance, neighbors/privacy, or noise/disturbance?

Is the tenant making a local move to another rental complex?

A local move to another rental complex may be an indication that the landlord’s unit/property is not competitive in terms of rents, amenities, features or policies. The tenant’s decision to move may be based on getting a better deal. If the landlord has not conducted a recent market study, the landlord may be missing the opportunity to attract and retain good tenants.

How did the tenant search for a new rental?

A landlord can use this information to evaluate his advertising plan and media strategies and accordingly make changes to improve his advertising effectiveness and coverage in the local area.

Did the tenant consider his rent to be a fair rent for the unit/area?

This response provides market information on rent affordability in the area and a comparison of the rental unit to similar units in the area.

Did the tenant express satisfaction with his rental experience during his tenancy?

The tenant’s answer provides direct feedback on property management and rental policies.

What would the tenant suggest for property upgrades and improvements?

Comments and suggestions could include physical property improvements as well as improving tenant customer services and response times.

Would the tenant rent from this landlord again?

The answer can be a confirmation of a satisfactory landlord tenant relationship or feedback to focus on areas that need attention.

With knowledge of an up-coming vacancy, a landlord can begin preparations to fill that vacancy. Before placing rental advertising, it is a good practice to review local market data trends, supply and demand, demographics, market rents, competition, and other conditions that affect local area renters’ consideration and choice for unit selection. A landlord should develop an effective advertising strategy to identify and attract potential renters willing to quickly move forward to application, selection, and tenancy.

The advertising process must be compliant with Fair Housing Act requirements for advertising rental property. There may be other requirements under state and local fair housing laws that will need to be included within the process.

Housing discrimination occurs when a landlord places an advertisement regarding the rental of any housing accommodation that indicates any preference or limitation based upon protected classes or characteristics.

Section 804(c) of the Fair Housing Act specifically makes it unlawful to make, print, or publish, (or cause to be made, printed, or published), any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, that indicates any preference, limitation, or discrimination based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.

Landlords must be attentive to how all forms of advertising, written and oral, are created and delivered to the rental market audience. Discriminatory advertising laws apply to the landlord’s use of brochures, flyers, leaflets, signs, posters, banners, TV and radio commercials, billboards, Internet-based advertising, or other conventional print ads in newspapers or magazines. What might be overlooked by a landlord in assessing his operations for potential fair housing violations are various other forms of advertising that make or print notices, statements, or advertisements used for communications by email or text, printed application forms and other rental documents, photographs of the property with tenants or potential tenants in the photos, illustrations in marketing materials or even signage and pictures in the rental office that could be construed as discriminatory against a protected class or characteristic.

Non-discriminatory advertising should advertise in an inclusive way that will attract the broadest possible audience, and avoid expressing any preference for or limitation against certain classes or characteristics.

In determining whether advertising constitutes a discriminatory housing practice, a “reasonable person” standard is applied by the courts. This standard means that liability is incurred by a person or entity if they make an advertisement that indicates a preference and that preference is readily apparent to an ordinary reader.

There are many different approaches to advertising rental properties. Many landlords have found through experience that there can be multiple advertising tactics that help to fill a vacancy. What works is usually conditioned upon a number of factors, i.e. local market, the landlord’s business model, and past history of advertising and marketing practices.

For some local markets a more defined advertising approach may be appropriate for the property and rental area. Word of mouth advertising and placing “For Rent” signs on the property are examples of a narrow, defined approach to advertising. It may take longer to fill a vacancy when using narrowly defined advertising methods. However, studies have shown that word of mouth advertising from existing tenants can be quite effective particularly in small regional markets. Word-of-mouth advertising can also come from referrals from family, co-workers, and friends in their communications with others in person or through social media.

While most advertising will eventually attract attention from potential renters, effective use of advertising can reduce vacancy down time and associated costs. Technology enables more efficient use of resources and provides an effective means to reach a larger and diverse market area.

Since many renters shop rental housing listings using mobile apps, rental listings that showcase property features and amenities with quality photographs of the property interior, exterior, and communal spaces generate more interest by viewers to visit the property either by virtual tour or physical showing.

The image quality of the photos, the number of photos, and the care taken to showcase relevant feature, amenities and floor plans, with detailed, accurate descriptions of the rental unit and the community are important factors in making the important first impression. First impression is a powerful decisioning factor for many prospective renters in the choice of a new home. A rental listing that provides the rental basics of the rental rate, relevant lease terms, tenant-friendly policies such as pet-friendly housing, parking/garage availability, and options such as “we offer virtual showings” allows the viewer to pre-screen his interest in the unit, his ability to qualify to minimum standards, and accordingly, make the call to learn more. Landlords that provide multiple channels of communication, such as options for phone, email, text messaging, and social media, make it easier for an interested prospective renter to ask questions or request a showing. It is important that the landlord be available to respond to inquiries in a timely manner. Prospective renters having begun a search for housing are more likely to consider renting from a landlord who tends to business and does not delay his response to inquiries.

Just as location, location, location of the rental property is a primary consideration for business viability, so is the placement of online rental listings on specific sites and apps. The “location” of the listing is important to be able to reach the largest possible market for the type, size, condition, and characteristics of the rental property. Most prospective renters use third-party listing apps or sites to search for available housing. Online rental listings can be posted to sites/apps such as Zillow, Trulia, Craigslist, Twitter, Facebook, Instagram, Pinterest, or other third-party rental property services.

Posting a virtual tour of the rental unit, or offering an open house tour using one-time access to view the unit can be effective means to show available units while being compliant with local and state regulations for health and safety reasons during social distancing and lockdown situations. A virtual showing using Face Time or Zoom for interested prospects can further qualify prospects into becoming applicants. The virtual forum offers opportunity for both landlord and prospect to ask/answer questions about the unit, rental terms, or the next step toward application and screening.

Whatever listing process is chosen to market the vacancy, a landlord should disclose in his listing, website, or in communication with a prospective renter the landlord’s rental process of filling vacancies, what screenings are required, lease terms and conditions, and other relevant information regarding fees, deposits, etc.

Although advertising violations can be found in some common rental practices, it should not be difficult to create a responsible ad that complies with fair housing laws if a landlord keeps these key points in mind:

• advertising should describe the property features and amenities, not characteristics of the ideal tenant;
• advertising should not express a preference for one personal characteristic over another;
• advertising should not exclude persons in protected classes; and
• advertising must be truthful in describing rental availability, rent, amenities, and features of a housing unit.

All advertising copy and information regarding responses should be kept for the period of time that complies with applicable document retention policies regarding the subject matter. By documenting the advertising process a landlord can determine what advertising method(s) may be most effective for his property under various market conditions. Additionally, documentation can help provide a defense against claims of discriminatory advertising policies.

The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, color, sex, religion, disability, and familial status.

Certain policies or practices of a landlord could be regarded as fair housing discrimination against protected classes when a person with limited English proficiency applies for tenancy. A landlord’s policy or practice that contains language-related housing restrictions or that result in a language-based adverse action decision is a violation of the Fair Housing Act.

The Department of Housing and Urban Development (HUD) has published a Limited English Proficiency (LEP) guidance for landlords as an aid in renting to persons who as a result of national origin do not speak English as their primary language and who have a limited ability to speak, read, write, or understand English. The guidance addresses how the Fair Housing Act would apply to claims of housing discrimination brought by people with limited English proficiency.

People with limited English proficiency are not a protected class under the Fair Housing Act. However, national origin, which is a protected class, has been closely linked to the ability to communicate proficiently in English. The guidance points to statistical data supporting the nexus between limited English proficiency and national origin.

According to the guidance, nearly all LEP persons are limited in English proficiency because they or their family members are from non-English speaking countries. Housing decisions based on limited English proficiency are generally related to national origin or race.

National origin discrimination includes discrimination because an individual has the physical, cultural, or linguistic characteristics of individuals from a foreign geographical area. Courts have found a close link between language requirements and national origin discrimination.

The guidance addresses how various legal approaches, such as discriminatory effects and disparate treatment, apply in Fair Housing Act cases in which a housing-related decision – as an example, a landlord’s refusal to rent or renew a lease – involves a person’s limited ability to speak, read, write, or understand English.

Landlords are prohibited from using an applicant’s or a tenant’s limited English proficiency in a selective manner as basis for discriminatory actions or as an excuse or pretext for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect.

Landlords may be liable for claims of intentional discrimination if their rental practices include advertising that contains blanket statements of language-related restrictions, such as “all tenants must speak English” or turning away all applicants who are not fluent in English.

Landlords should consider less discriminatory alternative practices for matters involving people with LEP, such as allowing an applicant or tenant a reasonable amount of time to have a document, such as a lease agreement, translated; providing written or oral translation services, using multi-lingual skills of staff members; or having an applicant or tenant bring another person or family member along to interpret documents or facilitate communications.

HUD has authority to charge landlords with violations of language-based discrimination or on behalf of the complainant refer the case to the Department of Justice. Landlords who violate the Fair Housing Act could be required to pay damages, civil penalties, and punitive damages to the complainant.

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. A tenant whose previous behaviors have never been a problem may be responsive to an oral request by the landlord to remedy the default. The landlord should document in writing the details of the landlord tenant-conversation regarding the lease violation and what the tenant must do to correct the violation.

A warning letter does not qualify as a formal termination notice. However, a written warning letter to the tenant does provide details of the tenant’s non-compliant behavior including date and time; citation of the specific lease term, condition, or rental rule that has been violated; the expected corrective action by the tenant to remedy the issue; and the consequences of failure to take corrective action for compliance.

For material violations of the lease a warning letter only serves to delay serving a formal notice to cure or quit. If a tenant has repeatedly violated terms and conditions of the lease, it is very likely a warning letter will not produce the desired change in the tenant’s behavior. If the situation involves dangerous behaviors such as criminal activity, drugs, or threats of violence, a landlord should immediately begin the termination process to end the tenancy.