Using Facebook as a Tenant Screening Tool by Janet Portman

Using Facebook as a Tenant Screening Tool
Posted: 10 May 2010 08:34 AM PDT
Rent it Right
by Janet Portman, Inman News
Q: When I screen potential tenants, I talk to their current landlord and their employer, ask for references, and order a credit report. Some of the landlords in town are also regularly looking on the Internet, to see if the applicant blogs, has a Facebook page, and so on.
One friend told me that when he looked at the Facebook page of an applicant he was about to rent to, he saw that the person is really into partying and drinking. My friend didn’t rent to him.
Should I be looking at Facebook pages, too? –David R.
A: Your question calls for two answers: a legal one and a practical one. From a legal point of view, should you be checking applicants’ Internet postings? And, from a practical point of view, is it a good idea?
The steps you’ve been taking when screening tenants are the tried-and-true methods that careful landlords have been using for years to weed out risky applicants: those whose past actions indicate that they may not pay the rent or may not be considerate residents and neighbors. Although these methods are commonly used, they are not legally required.
It’s possible that a court might rule that these tools are the “industry standard,” which might make them quasi-mandatory, but it’s unlikely. Running a residential rental business (unlike, say, car manufacturing) is engaged in by too many people, in too many varied ways, to conclude that it’s an “industry” with common metrics and procedures.
So because you’re not legally required to do even what you’re already doing, it’s very unlikely that a judge would consider checking for Internet postings to be a legally necessary step in the screening process. Consider, for example, the issue of screening for those who are legally required to register as convicted sex offenders.
No state requires landlords to go online and look for their applicants on these lists, and California specifically forbids them from doing so. If you’re not required to consult the Internet for information as serious as registration for one of these crimes, it’s not reasonable to think that you’d have any duty to search for evidence of partying.
This conclusion has to be adjusted, however, for one situation: If you’re hiring a resident manager, you are screening not only a tenant, but a future employee, who will have access to tenants’ personal information and even their homes. You have a duty to make sure that you do not place a dangerous tenant manager in that position — in other words, your duty to screen has changed significantly.
Careful landlords do investigative background checks for tenant managers, with the legally required advance notice to the applicant. These investigations may turn up relevant information, including the applicant’s postings on the Internet.
So much for your legal duty. What about the practical value of hopping online and checking out your applicants? It’s hard to resist, and indeed you may learn information about your applicants’ lifestyle and habits that would reasonably lead any landlord to say, “No thanks on this one.”
As long as you’re looking at Web postings that are available to the public, your applicants will have no legitimate beef if you reject them based on what you see and read. But be careful — you can safely reject any applicant only when your reasons for doing so, no matter where you found the information, are legally justified, and not based on that applicant’s membership in a protected class, such as race and religion.
For example, suppose you have an applicant who passes every good-tenant test you have, but who also has a Facebook page that proudly announces her membership in a particular religion. If you reject her, and rent to someone whose qualifications were less sturdy, you’re setting yourself up for a fair housing claim.
The rejected applicant may argue that your knowledge of her religion, gleaned from your visit to her Facebook page, must have motivated your decision — why else would you choose someone less qualified?
On the other hand, if your visit reveals that this person is a party animal who loves to host regular “keggers,” plays the kettle drum, and collects stray cats, you have solid grounds to reject.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com.
Copyright 2010 Janet Portman
See Janet Portman’s feature, Higher Risk, Higher Deposit.