Articles of Interest

  • Whose credit check counts?

    Janet Portman

    Q: We're looking for a place to rent in a tight rental market, and have filled out several rental applications. Each of them asks for a credit-check fee, from $25 to $35, which covers the cost to order a credit report.

    We have our own copies of our report, from each of the three agencies, but when we asked the management companies to accept our copies, they refused. Paying repeatedly for a credit report is getting really expensive. Is there anything we can do? --Marsha and Ben

    A: Landlords don't like to accept applicants' own copies of their credit reports because they're afraid that the report may be altered or old (with the issue date changed). That's a legitimate concern, because sophisticated computer users doubtless have ways to doctor the reports. Because of this concern, there is probably no way to force management companies or landlords to accept your personal copies of your credit report.

    Unless you live in Wisconsin, that is. And even in Wisconsin, there are some limits on your right to require landlords to take your credit report directly from you, rather than charging you a fee to get it from the credit reporting agencies. Your report must be less than 30 days old, and management doesn't have to accept it unless you offer it before they ask for it: see Wisconsin Administrative Code Section 134.05(4)(b).

    The first limitation makes perfect sense -- and even a 29-day-old report can miss relevant and new information that a landlord would want to know. But requiring the applicant to offer the report before the landlord asks for it strikes me as a bit odd -- it does nothing to discourage tenants from doctoring their reports, which is why most landlords want to get their own copy directly.

    Laws in many states explicitly forbid landlords from keeping the credit-check fee unless they actually order the report. Even if your state doesn't have this type of law, it's probably old-fashioned fraud for landlords to pocket a fee for a task they don't perform.

    If you have paid for a credit check but get bounced out of the running based on the landlord's preliminary review of your application, you should get that fee back.

    Q: Our town has had its share of unemployment and wage cuts over the past couple of years. Many of my residents work for one large employer, who has instituted wage and hours cuts. These are good tenants; I know that some are having trouble making the rent. So I've offered a rent concession to these employees.

    Some other tenants, who haven't necessarily experienced layoffs or cuts, have complained, and are saying that I'm discriminating against them. Am I? --Axel P.

    A: Under federal law, only members of specific "protected classes" can claim the protection of the fair housing laws, which prohibit discrimination. Those classes are based on race or color, religion, national origin, familial status, disability and sex.

    Many states have expanded that list, to include gender identity, sexual orientation and source of income. No state has created a protected class consisting of people who do not work for "Employer X." If those tenants don't get the rent break you're offering, that's just too bad.

    If it weren't for the great state of California, that would be the short and sweet answer to your question: You may favor these residents just as you may give rent concessions only to those who wear red socks or root for the Red Sox.

    But in California, things are a bit more complicated, because employers and landlords there must not only refrain from discriminating against specific protected classes, but they must also refrain from discriminating on any "arbitrary" basis.

    Over the years, the courts have made it clear that arbitrary discrimination occurs when a business discriminates on the basis of one's physical appearance, and even one's occupation. Perhaps making a distinction based on whether or not a tenant has suffered a wage or hours reduction from Employer X would count as arbitrary discrimination based on these decisions.

    Luckily, the ever-busy California Legislature has stepped in to clarify this issue. As of November 2009, the concessions you're offering are officially legal. That's because the governor signed a bill, effective immediately, protecting business establishments that offer concessions to those who have experienced a loss or reduction of employment or reduction of wages: see state Senate Bill 367; Civil Code Section 51.13.

    The legislation was necessary because some consumers were apparently objecting to discounts and other benefits to furloughed state workers, and were threatening to sue under the state's Unruh Act (the law prohibiting arbitrary discrimination).

    If you're in California, consider playing it extra safe (and fair) by extending your concessions to any resident, regardless of his or her employer, who experiences a wage or hours cut. If you don't, you may find yourself facing an arbitrary discrimination claim -- after all, if the pay reduction is the same, what difference does it make that another employer imposed it?

    Unless you can come up with a compelling answer, you'll be courting an arbitrary discrimination claim.

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