A landlord has a general duty to take reasonable care in providing a safe living environment for his or her tenants. As part of this general duty a landlord must protect tenants from foreseeable harm perpetrated by other tenants. This implies that a landlord may also have a duty to screen potential tenants to determine whether or not they have a history of criminal conduct. However, there is no formal requirement that a landlord run a criminal background check on potential tenants.

Requirements for Running a Background Check
In California, a landlord can legally run a criminal background check on a prospective tenant. If a landlord decides to perform a criminal background check on an applicant, the applicant’s written consent and signature are required before the landlord can proceed. In addition to these requirements a landlord cannot charge a screening fee that exceeds the landlord’s actual out-of-pocket expenses for conducting the entire screening plus the reasonable value of time spent by the landlord or his or her agent in obtaining information on the applicant. In any case, the total cost passed on to the applicant for screening may not exceed the amount authorized by California Civil Code Section 1950.6. The cost of running both a credit check and a thorough criminal background check often exceeds the amount a landlord can legally charge under the statute. Therefore, a landlord may have to personally incur an additional expense for running a criminal background check.

A landlord should keep his or her policy of running criminal background checks consistent. Otherwise, the landlord may be accused of discrimination by requiring criminal background checks for some individuals and not others. In order to be consistent and keep out of pocket screening costs at a minimum, a landlord should run a credit check first to screen applicants on an economic basis. Once applicants have been screened and found to have satisfactory credit and rental histories, a landlord can spend the extra resources in running criminal background checks on these final remaining candidates.

Legal Challenges
In California an applicant can be denied housing accommodations on the basis of his or her criminal record. Both the Federal Fair Housing Act and California’s Fair Employment and Housing Act (FEHA) make it illegal for a landlord to discriminate against any person because of their membership in a protected class, but neither of these acts recognize persons with criminal records as belonging to a protected class. Another California housing discrimination law, the Unruh Civil Rights Act, protects all persons against arbitrary and unreasonable discrimination based on  personal characteristics. In 2011, a California court ruled that being a felon is not a personal characteristic protected by the Unruh Civil Rights Act, and that criminals could in fact be legally subject to discrimination. Similarly, sex offenders who are listed on the Megan’s Law website are not considered a protected class under the Unruh Civil Rights Act or the FEHA, as they too may be denied housing accommodations in the interest of protecting persons at risk.

Notably, there have been recent efforts on the local level challenging discrimination of persons with prior arrest and conviction records. In June of 2011 the San Francisco Human Rights Commission delivered a letter to the Mayor and the Board of Supervisors urging the passage of legislation prohibiting housing discrimination of persons with arrest and conviction records. To date no such legislation exists in the City and County of San Francisco. Yet this could change. At least one municipality- Madison, Wisconsin has enacted an ordinance defining persons with a conviction record as a protected class for purposes of housing discrimination. And several other jurisdictions have already adopted laws protecting criminals from certain types of employment discrimination.

Marc Branco is a licensed attorney practicing landlord-tenant law in San Francisco.  He can be reached at (415) 489-0529 for a free consultation.
Reprinted with permission of the Small Property Owners of San Francisco Institute (SPOSFI) News.  For more information on becoming a member of SPOSFI or to send a tax-deductible donation, please visit their website at www.smallprop.org or call (415) 647-2419.

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