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Combating Tenant Blacklisting Based on Housing Court Records

A Survey of Approaches

By Esme Caramello & Nora Mahlberg

 

“‘It is the policy of 99 percent of our customers in New York to flat out reject anybody with a landlord-tenant record, no matter what the reason is and no matter what the outcome is, because if their dispute has escalated to going to court, an owner will view them as a pain.’”1

“Once the [eviction case] is served and filed, you will have a permanent record in housing court…. If you win sanctions against me and you can say you won in court[, d]o you think that will make any prospective landlords feel better about renting to you?”2

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As others have documented well, and as anyone who works with low-income tenants has likely observed, having a housing court “record”—a publicly accessible history of having sued or been sued by a landlord—can be a serious impediment to finding housing.3 Tenant-screening bureaus collect housing court data and sell them to landlords; the bureaus often make recommendations about a tenant based solely on the existence of a recent case, regardless of its underlying basis. The recent move by courts to put civil case records online has made the problem worse, creating a permanent record of a tenant’s court history that anyone can access at any time and enabling landlords to run quick, free searches and deny tenants housing based on the few (sometimes inaccurate or misleading) facts they find online.

Blacklisting impedes not only access to housing but also access to justice. If tenants cannot use the justice system to vindicate their rights because they are legitimately afraid that any court involvement will harm their ability to secure housing, then tenants’ rights are not fully enforceable.

Here we collect the strategies that advocates across the country have used to mitigate the harm of public access to housing court records, and we update the literature with recent developments to give advocates inspiration and guidance in tackling this persistent problem.

Removing Housing Case Records from Public View

The most effective way to prevent blacklisting is to shield housing cases from public view altogether. While public policy generally favors public access to court records, this presumption of access is not absolute.4 Housing case records can be, and in some states are, sealed either automatically or on a case-by-case basis.5

Automatic Sealing. Many states bar public access to certain types of court records.6 In a few places, advocates have successfully extended blanket protection to certain housing records, shielding them from public view without the need for individualized advocacy.

These laws illustrate that there are good policy arguments for limiting access to records that have little predictive value to prospective landlords. Most records, moreover, would remain accessible for tenant screening even with a law such as California’s.12 Nonetheless, limiting public access to court records automatically, rather than on an ad hoc, discretionary basis upon motion, can be difficult to achieve legislatively. Even where landlords can be persuaded that they need access to only certain eviction records to protect them against “bad tenants,” advocates for open government will fight for open access, citing the need to keep a watchful eye on the workings of the courts.13 As the examples in this section show, however, legislative success in this area is possible in at least some jurisdictions. In other jurisdictions the blanket sealing of eviction cases may simply be impossible.14

Blacklisting impedes not only access to housing but also access to justice.

Ad Hoc Discretionary Sealing. In many states, civil litigants are permitted to move, on a case-by-case basis, to seal civil court records and remove them from public view absent a court order allowing access. Sealing is generally both discretionary and rare because of the strong public policy favoring public access to court records.15 Sealing records on an ad hoc basis is therefore labor-intensive and, given the challenges inherent in overcoming the presumption of public access, difficult for self-represented tenants to accomplish unassisted.

The most effective way to prevent blacklisting is to shield housing cases from public view altogether.

In some states the burden of persuading a skeptical judiciary to seal housing court records is lessened by laws making explicit that sealing should be considered, at least, in housing cases.

Even absent specific provisions referencing the harm that tenants, specifically, may face from the publication of their housing court records, tenants with lawyers in some states, such as Minnesota, have been able to persuade judges to seal their eviction records under more general common-law or statutory provisions permitting civil case records to be sealed where a litigant’s privacy interests outweigh the public’s interest in access.19 In other states, however, such efforts have been shot down summarily.20

As the more widespread success in Minnesota has shown, a small number of well-crafted, successful sealing petitions can educate the judiciary about the impact of eviction records on tenants’ housing search and thereby ease the burden on future tenants seeking to get their cases sealed. Engaging in an initiative to develop the sealing case law in your jurisdiction may therefore be worth the effort. Advocates considering such an approach can draw lessons and find persuasive authority in successful efforts across the country to limit access to criminal records despite the presumption of public access to court documents.21

Tenant-screening bureaus may report information about civil judgments only for seven years or until the statute of limitations has expired, whichever is later.
 

Regulating the Content of Tenant-Screening Reports

In many jurisdictions, landlords purchase reports from tenant-screening bureaus, which collect information from housing courts and aggregate it with other publicly available data about tenants and, in some cases, make concrete predictions about whether the subject will make a good tenant.22 As access to online records has expanded, fewer landlords are relying on tenant-screening bureaus to get information about a prospective tenant’s housing court record. Nonetheless, tenant-screening reports are still used and in some jurisdictions are almost exclusively used.23 The use of tenant-screening bureaus may in fact increase in the wake of a recent decision by the three major credit bureaus not to include the vast majority of civil judgments on a standard consumer credit report.24 Regulating the content of tenant-screening reports is therefore still an important tool for advocates seeking to encourage or enforce fairer rental decisions based on housing court records.

One advantage of landlords’ using tenant-screening reports is that those reports, and tenant-screening bureaus themselves, are covered by the federal Fair Credit Reporting Act, a law targeted at ensuring the accuracy of credit reports and offering consumers, including tenants, the opportunity to correct errors.25 But error correction under the Act has its limitations, and thus advocates in several jurisdictions have sought to go further to ensure accuracy in tenant-screening reports.

The Fair Credit Reporting Act. Under the Fair Credit Reporting Act, a tenant-screening bureau must follow “reasonable procedures to assure maximum possible accuracy of the information” reported about a tenant, conduct a “reasonable reinvestigation” if information is disputed by a tenant, and inform the tenant of the results of the reinvestigation.26 If a reinvestigation shows that the disputed information is inaccurate or unverifiable, the tenant-screening bureau must promptly delete that information from the tenant’s file and notify the furnisher of the information that the information has been modified or deleted from the file.27 Tenant-screening bureaus may report information about civil judgments only for seven years or until the statute of limitations has expired, whichever is later.28 A tenant-screening bureau must also supply information contained in a consumer’s report and the source of that information if it is requested by the consumer.29 The Act gives a consumer a private right of action to enforce these provisions and permits the collection of attorney fees.30

The Fair Credit Reporting Act can be one useful tool for regulating the practices of tenant-screening bureaus and therefore their reports, and represented tenants have had moderate success in enforcing its provisions.31 The Act places the onus on the tenant, however, to identify and challenge any errors, and trying to correct errors or receive more information under the Act can be confusing and time-consuming.32 Furthermore, a tenant must establish that the violation harmed the tenant.33 Therefore, to challenge, say, a tenant-screening bureau’s procedure in obtaining information, a tenant must show that the deficiency in the tenant-screening bureau’s procedure caused the tenant actual harm.34 Clearing this hurdle will largely depend on the landlord’s screening criteria and whether the rental outcome would have been different had the tenant-screening bureau not violated Fair Credit Reporting Act rules.35 Aside from the difficulties in enforcing the law, the Act is primarily limited to correcting the accuracy of information. It does not require that tenant-screening reports include the basis for the eviction, any defenses raised (even successfully) by the tenant, whether any rent was abated, or any other information that would give a landlord a better understanding of what actually happened in a case and a better ability to assess a potential tenant fairly and accurately.

Local Provisions Promoting Accuracy in Tenant-Screening Bureau Reports. Given the Fair Credit Reporting Act’s limitations, advocates in some jurisdictions have pursued additional measures to improve the accuracy of tenant-screening reports. Some simply make error correction easier or more robust, but others aim to expand the information available to landlords to promote informed decision making based on a tenant’s actual rental history.

Correcting Errors in Court Databases. With more landlords simply conducting their own tenant screening by reviewing court databases made available online for free as a government service, what has become increasingly imperative is for tenants to be able to correct errors in the case data that courts maintain.

Courts themselves have recognized the increased risk to privacy and economic well-being resulting from the online publication of court records.48 Yet getting errors in court records corrected can be difficult. Information displayed online by state courts is not covered by the federal Fair Credit Reporting Act or, typically, by state “fair information practices” acts that entitle individuals to review and correct or comment on government agencies’ records about them.49 Indeed, courts commonly disclaim responsibility for inaccuracies in their systems, particularly online databases.50 Some courts have published error-correction procedures and forms, but they are vague.

Advocates working with their court systems to establish error-correction procedures should work to ensure that “error” is defined broadly to include any information that misleads a prospective landlord about the nature of a tenant’s case.54

Several jurisdictions prohibit overzealous screening of tenants with criminal records, but few restrict landlords’ use of tenants’ housing court histories to make rental decisions.
 

Regulating the Use of Housing Court Records in Rental Decisions

One way of curbing abusive screening practices without impinging on public access to court records is to restrict the use, rather than the dissemination, of housing court information.

Direct Restrictions on the Use of Housing Court Records. Several jurisdictions prohibit overzealous screening of tenants with criminal records, but few restrict landlords’ use of tenants’ housing court histories to make rental decisions.55 There are a few exceptions.

Fair Housing Challenges. In the absence of Oregon-style legislation, tenants seeking to curb overreliance on housing court histories might look to fair housing laws. In most states, eviction litigation likely has a disparate impact on tenants of color and members of other protected classes, including women and people with disabilities.62 Screening practices that use housing court records likely have a disparate impact on the same protected groups, in potential contravention of the Fair Housing Act and state equivalents.63

In most states, eviction litigation likely has a disparate impact on tenants of color and members of other protected classes, including women and people with disabilities.

Recent guidance from the U.S. Department of Housing and Urban Development (HUD) on the application of fair housing laws to tenant screening based on criminal records offers a road map for a fair housing challenge to the indiscriminate use of housing court records to deny tenants access to housing.64 Under the Fair Housing Act as interpreted by the U.S. Supreme Court, a tenant must first prove that the landlord’s screening policy has a discriminatory effect.65 The HUD guidance highlights the importance of gathering localized statistical data to support allegations of disparate impact, but where national data are available and there is no reason to suspect the local data are different, causality may be established.66

If the tenant proves a disparate impact, the burden shifts to the landlord to demonstrate that its policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest.67 The HUD guidance supplies helpful arguments for debunking landlords’ claims that screening out tenants with eviction court histories is necessary to protect other residents; the HUD guidance notes that the landlord must offer “reliable evidence” that its screening policy “actually assists in protecting resident safety and/or property.”68 This should pose a particular problem for landlords denying any applicant with any kind of court history. Even landlords denying only those with nonpayment filings could face an uphill battle; just as an arrest record does not prove that a crime occurred, the filing of a nonpayment case—even one that results in a move-out agreement—does not itself indicate that the tenant failed to pay rent duly owed or is likely to fail to pay rent in the future.69

Moreover, even if a landlord were to prove a nondiscriminatory interest, the tenant could still prevail by proving that the interest could be met by a practice with a less discriminatory effect. The alternative suggested by HUD for criminal history—individualized assessment of any records and of relevant mitigating circumstances—should prove equally useful in the housing-record context.70

This approach was recently attempted in Washington, where tenants filed a fair housing challenge to a landlord’s blanket policy of rejecting or adversely treating any tenant with a record of a housing court case, regardless of the cause or resolution.71 As suggested by the HUD guidance, tenants’ advocates worked with social scientists to run a statistical analysis of the local housing court dockets and were able to allege in the complaint that, in the county of the lawsuit, African Americans are almost four times more likely than whites to have been sued in an eviction case, and African American women are sued more than five times as often as households headed by white men.72 The Washington tenants also make the argument found in the HUD guidance that performing an individualized assessment of a tenant’s records and mitigating circumstances is a less discriminatory and equally effective means of meeting any legitimate nondiscriminatory interests a landlord might have in screening tenants with housing court histories.73 The success of the suit will offer a window into the feasibility of this strategy in other parts of the country.

While appealing at a theoretical level, restrictions on the use of housing court records can be difficult to implement in practice both because they require case-by-case adjudication by tenants without access to lawyers and because catching violations of such use restrictions is difficult. Nonetheless, as with other litigation-based solutions, a coordinated strategy of strong individual cases might succeed at changing the culture in a particular jurisdiction.

Lessons Learned: Advocacy Strategies

Following are a few takeaways from successes, and failures, across the country.

Raise Public Awareness and Be Patient. People who are not and do not interact with low-income renters are sometimes skeptical about the impact of housing records on “good” tenants’ ability to find housing. In California, Washington, and elsewhere, advocates laid the groundwork for exciting recent reforms through years of media work and incremental legislative efforts.74 Collecting compelling tenant stories and working with researchers to develop the sometimes elusive proof of prejudice to tenants is crucial to making change.

Work with the Courts. The coalition advocating the successful California bill wrote it in such a way that necessary administrative changes to implement it would be limited. Minimizing administrative changes secured support from the courts as well as avoided fiscal costs for the bill.75 In New York the courts themselves refused to include tenant names in the courts’ electronic data feeds to tenant-screening bureaus, albeit under pressure from lawmakers.76 Conversely, in the era of online court records, correcting errors or limiting public access to housing case information is nearly impossible without the courts’ active assistance.

Aggregate Small Cases to Change the Culture. Litigation to seal or correct records is time-consuming, and tenants face a dearth of legal aid. As the Minnesota example shows, however, a small number of well-argued individual cases can educate the judiciary and public officials and pave the way for self-represented litigants or legislative reform by court rule or otherwise.

Authors’ Acknowledgments

We thank Eric Dunn, James Fishman, Sybil Hebb, Jith Meganathan, Lawrence McDonough, and John VanLandingham for their time as we wrote this article and for their incredible advocacy in this area. We thank David Clark and Eric Maier for their excellent research assistance.

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