Question Seems like more and more of my prospective residents have past due balances on their credit reports and outstanding collection accounts. Years back I wouldn’t even consider someone with a collection account, but if I did that now, I’d have an empty building! What do you think?
Answer According to a recent study just released by the Urban Institute, 35.1 per cent of folks with credit records have past due debt that is in collection. That’s one out of every three people you see on the street. Unpaid rent, student loans, credit cards, gym memberships, cell phone and medical bills are most common. As a Lessor your task is to weed out the applicants to determine which of the several will be the ‘best’ pick for your property and will more likely than not comply with the rental terms and honor the obligations created. Past articles have described the screening process and the criteria you should have established. Regarding debt and collection accounts, consider the amount outstanding, the type of debt (i.e. medical vs rent), whether or not the prospect voluntarily disclosed the obligation, and whether or not he/she is making an attempt to re-pay the obligation. Trust is key, a prospect who volunteers the information and is making an attempt at satisfying the debt is preferable to the applicant who doesn’t disclose the collection account, denies the obligation when asked or who blames the past landlord or other creditor for misdeeds. Of course, in an ideal world, all prospects would honor their credit obligations, pay their debts when due, and be honest and truthful in the application process.
Question Always been a nice and quiet community, no bother, no worries. Everyone kept to themselves; never ever had complaints about behavior. Well, that all changed when I rented to these last two characters! Ever since these clowns moved in, flashing me their ‘doctor’s note’ saying they could smoke pot, they’ve been puffing away ever since. Apparently they claim to be ‘disabled’ and that because they are ‘disabled’ they get to do whatever they want; smoke literally billows out of their apartment! I’m concerned about lots of things, but mostly, the little girl who lives next door, I believe that she’s asthmatic. How much more of this must I, and the neighbors take?
Answer The audacity of some medical ‘professionals’ to abuse and game the system by willfully prescribing the use of ‘medical marijuana’ to non-disabled fraudsters is an affront to all truly disabled persons. As of this writing, the use of marijuana, medical or otherwise, is still illegal under federal law. California enacted the Compassionate Use Act which allows for the possession of a limited amount of marijuana, for personal use, provided certain requirements are met. According to the California Department of Justice, qualified patients and caregivers may possess 8 ounces of dried marijuana, as long as they possess a state-issued identification card. In addition, they may only maintain 6 mature or 12 immature marijuana plants. Local governments may allow patients or caregivers to exceed these base levels. In addition, marijuana smoking is also restricted by location. It may not be smoked wherever smoking is prohibited by law, within 1000 feet of a school, recreation center, or youth center, on a school bus, or in a moving vehicle or boat. The right to ‘smoke’ marijuana in your apartment community is not automatic, and will depend upon the individual facts of each case. The use of non-medical marijuana is illegal under both California and federal law, and cannot be used or smoked anywhere, including your community, and can be grounds for termination of their tenancy. The use of medical marijuana requires that the user be disabled, and the disability must be ‘verifiable.’ Additionally, the disabled individual must request a “reasonable accommodation” from you the housing provider prior to just lighting up. Once the disabled person makes the request for a reasonable accommodation, you are obligated to consider the request, and attempt in good faith to accommodate the request in a reasonable manner. The accommodation does not necessarily require you to ‘grant’ the request outright, but you must make a good faith effort to provide an accommodation that addresses the disability, but does so in such a manner that it does not unreasonably ‘burden’ you the housing provider. The courts will apply a “benefit to the requestor” versus a “burden to the housing provider” standard in determining whether or not you met your obligation to reasonably accommodate the disability. In your specific situation, the initial hurdle for your new residents to surpass is to establish that one or both truly has a “verifiable” disability. A ‘doctors’ note, provided it has not been forged, although highly suspect will generally satisfy the extremely low threshold here in California. The reasonable accommodation, their request to smoke willy nilly within the apartment, must be balanced with the ‘burden’ to you the housing provider, and those other residents that might be affected, i.e. the asthmatic child living next door, or any other resident that has a sensitivity to second hand smoke. It is conceivable, and probably likely, that an asthmatic child when exposed to the smoke billowing from next door, might have a devastating and fatal reaction. Certainly the neighbor child, with a truly verifiable disability, asthma, is entitled to be free of the exhaled smoke as a “reasonable accommodation” for her verifiable disability. When balancing the “benefit” of being able to light up in their apartment, with the “burden” to you as well as the extreme life threatening burden to the asthmatic child, courts would most likely find that a reasonable accommodation would be to prohibit the smoking of the marijuana within the apartment unit, or in any place that might affect the asthmatic child, or others with such a sensitivity to smoke, but provide an area within the community, possibly a portion of the outdoor common area that may be used for the smoking of their medical marijuana, or may even require the tenant to ‘ingest’ the marijuana through prescribed pills or capsules or to ingest by eating, i.e. brownies. Remember, reasonable accommodation issues are extremely fact sensitive and the analysis is dependent on a proper review of the relevant facts. Always contact an experienced attorney when faced with a request for a reasonable accommodation, as the issues are typically complex and a reasoned response must be made in a timely manner.
Question I’ve always heard that I should post my rental criteria in a conspicuous place so that applicants can plainly see whether or not they are qualified before they submit their application. I typically require that the applicants combined income exceed three times the rent, however I might make exceptions. Also, in years past, a foreclosure on an applicant’s credit report was an automatic disqualifier, but after attending your tenant screening class, I have reconsidered. With so many exceptions to my rental criteria, my sign would be huge! How do I handle this?
Answer Yes, it’s a good practice to post your rental criteria in a conspicuous place. The details and specifics of your rental criteria, however, do not need to be included, as these details and specifics are not necessarily static, that is, they may change or evolve over time depending on your situation. For example, your three times income requirement may work fine if you have a single vacancy and a dozen applicants, however it may be a bit too restrictive in the present economy, or in the event you have three vacancies, your phone hasn’t rung in days, and you’ve only received a single application in the past two weeks. Every owner should establish the following as their general rental criteria. A qualified applicant should: i) have a verifiable and positive credit history; ii) have a verifiable and positive past tenancy history, iii) have sufficient and verifiable income to meet his or her present and future financial obligations, and iv) should not pose a risk of harm to the rental property or to others. These general rental criteria can and should be applied equally and fairly to all applicants, and in compliance with all fair housing rules. Once applied, the best applicant should be accepted, not necessarily the first to apply.
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, has successfully handled over 235,000 landlord tenant matters throughout California, and has collected over $140,000,000.00 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.