Missing SSN, Crime, Repair and Deduct, Pushy Apps

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Q: A prospective resident recently applied for one of my rentals. He seems nice and all, but when he filled out the application, he left a blank where his Social Security Number should go; he said he didn’t have one. He had a California Driver’s License and something called a Matricular Consular card. He seemed a bit combative when we discussed this issue, said that his attorney said I had to rent to him, that I couldn’t discriminate against him, as long as he could afford the rent. Must I rent to him? How do I verify any of his information?

A:
Proper tenant screening results from the proper use of a variety of tools. Credit reports and eviction reports are two of the best tools available to predict the ability of the prospective tenant to perform his obligations. Qualification of a resident goes far beyond ensuring that “he makes enough money” to pay the rent. Verification of past rental history, tenant stability and verification of his ability to honor his credit obligations, as well as determining the likelihood of his continued employment, are all fair game in evaluating a prospect.

Like it or not, our country’s system of storing information on each of its citizens uses one’s Social Security or Taxpayer Identification Number as the primary identifier. A Matricular Consular card is merely an identification card issued by a foreign country and is not valid for identification in the United States. In order to work in the United States legally, one must have a Social Security Number or a Taxpayer Identification Number. It is illegal for an employer to hire an individual without a valid Social Security or Tax Identification number. Identity theft is rampant in California, and it is incumbent upon all credit providers, including landlords, to ensure that the person that fills out the credit application truly is who he says he is. Many tenant’s rights advocates, and that is exactly what they are, advocates, advancing the rights of tenants at the expense of landlords, insist that it is discriminatory to require a Social Security or Taxpayer Identification Number when evaluating a prospect.

You, as a housing provider, have a legitimate business purpose in determining the credit worthiness of a proposed resident, and not only to predict his ability to timely meet his rental obligations, but you must determine his ability to continue to meet those in the future. Further, in the event you had to pursue this individual in the future due to a breach of the agreement, you must assess the risk in searching for and locating this individual should you need to collect a past due amount. A consistently enforced policy of requiring a Social Security or a Taxpayer Identification number in order to screen your prospective residents does not violate Fair Housing laws and does not constitute illegal discrimination.

Q: I own a 40-unit building in a high crime neighborhood. I have done extensive work on the building to reduce the risk of crime to my tenants. We installed fencing with locked gates, increased the common area lighting and cut back on the shrubbery and vegetation that blocked views in the interior walkways. Last week we started implementing a neighborhood watch program. I was thinking of attracting new residents by advertising my building as a “security” building. Any problem with this?

A:
Yes. The improvements that you have made to your building are commendable and will help in the battle against gang-related activity and other criminal conduct. You must be cautious in how you represent your building and the surrounding community to new or existing tenants, however. California courts are quick to saddle landlords with liability for representing to their current or prospective residents that their complex is “secure” or “crime free”. Courts have held that by advertising or informing residents that they live in a “security” building that the landlord is held to a higher standard of care in that he is essentially warranting that the tenant will not suffer the effects of crime. It is important that in all your rental advertising, brochures and rental agreement that the landlord does not create an implied warranty of security.

Q: I’ve heard of the repair and deduct remedy. What is it?

A:
The repair and deduct remedy allows a tenant to deduct the cost of certain repairs, up to the amount of one month’s rent, from their rent payment. This remedy may only be used in very limited circumstances. The defect must be serious and directly related to health and safety. The repairs cannot exceed one month’s rent. The remedy cannot be used more than twice in any 12-month period. The tenant or his guests can’t cause the defect. The tenant must notify the landlord either orally or in writing, and the landlord must have a reasonable period of time to make the needed repairs. Thirty days is a reasonable time but a shorter repair time may be required: for example, a plumbing stoppage or broken heater in winter. If the landlord fails to make the needed repairs, the tenant can make the repairs or hire someone to do them and the tenant can then deduct the cost of the repairs from the rent when it is due.

Q: I expect a vacancy to be coming up at the end of the month. I started advertising the unit and I put a sign in the window. Luckily, I’ve already received quite a few applicants. There are a few that sort of qualify and I guess I could rent to one if I had to, but I’d like to continue with the ad and get a few more prospects to choose from. The thing is this one applicant is getting pushy. She calls me several times a day, says that she knows she is qualified, that I have to rent to her because the unit is still available and she was the first to apply. Truth is, she does qualify, but I’m just not sure. I haven’t actually denied her nor have I accepted her; I just need more time. Do I have to rent to her because she was first to qualify?

A:
No, there is no requirement to rent to the first person who meets your criteria. You are free to continue and accept additional applications from other candidates. From the pool of applicants, you may select the best and most qualified applicant, without regard to timing of receipt of the application. Often an owner will have a single vacancy and have many qualified applicants to choose from. A thoughtful review of all applicants and their qualifications will allow you to select the most qualified tenant. Don’t let the pushy prospect bully you into making a premature decision.

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100, toll free at 800.829.6994 or 877.387.4643. Please visit www.DuringerLaw.com for more information and to sign up for our periodic newsletter.

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