By Mark Zinman | Zona Law
Let’s imagine that an applicant passes your background screening, signs a lease, and moves in, only to later register as a sex offender. Because different states (e.g., California) report crimes differently, that person’s conviction for a sex crime may not show up on your criminal background check. Do you have any rights? What can you do when other residents get notified and complain?
Criminal background screenings are an incredibly important tool to ensure you are getting the residents you want. However, they are not foolproof, and they are only one part of the application process. Managers should also have thorough application questions that relate to their standards, to ensure that even if something is missed on the background screening, you have other options to enforce your standards.
For example, if you don’t ask any questions on your application, and something is missed on the background screening, you have very limited rights to evict, if any. However, if the person lied on the application, you could terminate the lease for the person lying on the application.
A few things to consider when drafting questions for your application:
- Only ask questions for information that you would use to deny an applicant. For example, don’t ask if a person has an assistance animal, as that is not relevant to whether you will approve them for occupancy, and it could be viewed as a fair housing violation.
- Be specific in the language you use and the questions you ask. For example, asking if a person has been evicted is very general – does it mean a case was filed, they were removed by a constable, or a judgment was entered? Instead, ask if a judgment has been entered against them in an eviction action.
Here are a few sample questions to consider using, in addition to other ones you may create:
- Have you ever filed for bankruptcy?
- Within the last year, have you had an open bankruptcy case?
- Within the last year, have you had a bankruptcy that was not yet discharged?
- Are you a registered sex offender?
- Have you been convicted of a felony?
- Do you have any criminal charges pending or awaiting disposition?
- Has a landlord ever filed an eviction action against you?
- Has a judgment ever been entered against you in an eviction action?
- Are you currently a defendant in a civil landlord-tenant or a criminal case?
Remember, you don’t need to list every single question that may be asked. You should only ask questions that would be an important reason to deny an applicant. Also, remember that these are just a sampling of potential questions.