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PART 1 OF 3, PAGES 1 - 30
City of Buffalo’s
LANDLORD TRAINING PROGRAM
KEEPING ILLEGAL ACTIVITY OUT OF RENTAL PROPERTY
A practical guide for landlords and property managers
A community-oriented property management approach
City of Buffalo, New York
Byron W. Brown, Mayor
Save Our Streets Task Force
Funding for this manual provided by: Department of Justice
Local Law Enforcement Block Grant
Campbell DeLong Resources, Inc.
City of Buffalo's
LANDLORD TRAINING PROGRAM
KEEPING ILLEGAL ACTIVITY OUT OF RENTAL PROPERTY
A practical guide for landlords and property managers
A community -oriented property management approach
City of Buffalo, New York
Byron W. Brown, Mayor
Developed for the City of Buffalo by:
The City's Save Our Streets Task Force
in partnership with
Campbell DeLong Resources, Inc.
Funding for this manual provided by: Department of Justice
Local Law Enforcement Block Grant
Various parts of this document provide broad descriptions of legal procedure. However, no part of this manual should be regarded as legal advice or considered a replacement of a landlord's responsibility to be familiar with federal, state, and local law governing a particular jurisdiction. If you need legal advice, seek the services of a competent attorney. Also, laws change. Information that is accurate at the time of printing may be rendered obsolete by the passage of new laws or revised judicial interpretations of existing law.
Copyright 2001 City of Buffalo New York and Campbell DeLong Resources, Inc. Substantial portions copyright 1993 - 1997 Campbell DeLong Resources, Inc. Portions copyright 1989 - 1992 City of Portland, reprinted with permission. No part of this manual may be duplicated or modified without permission. Questions and requests regarding usage of copyrighted materials should be sent to:
Campbell DeLong Resources, Inc.
319 SW Washington, Suite 802
Portland, Oregon 97204
Phone: (503) 221-2005
Fax: (503) 221-4541
We request that any errors or significant omissions be noted and forwarded to the above so that corrections in future versions may be made.
The National Landlord Training Program manual, upon which this manual is based, was made possible through cooperative agreements Nos. 87-SD-CX-K003, 89-DD-CX-0007, 91-DD-CX-0001, and 94-DD-CX-K104 from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The Assistance Attorney General, Office of Justice Programs coordinates the activities of the follow program offices and bureaus: the Bureau of Justice Assistance, Bureau of Justice Statistics, National Institute of Justice, Office of Juvenile Justice and Delinquency Prevention and the Office for Victims of Crime. Points of view or opinions contained within are those of the City of Buffalo and Campbell DeLong Resources, Inc. and do not necessarily represent the official position or policies of the US Department of Justice.
The first version of this Buffalo manual was created by Campbell DeLong Resources, Inc. Additional editorial decisions and added text for this edition have been made by the City of Buffalo.
FOREWARD FROM THE MAYOR 8
POINTS TO CONSIDER 9
PREPARING THE PROPERTY 10
Keep the Property Up to Habitability Standards 10
“CPTED” Defined 11
Keep the Property Visible, Control Access 13
Keep it Looking Cared For 14
Keep it Conformed to Code 15
Code Enforcement in Buffalo 16
Chronic Code Violations: “Slum landlord” Signs 17
APPLICANT SCREENING 19
Applicant Screening, Civil Rights and Fair Housing 20
Written Tenant Criteria: What to Post 23
Application Information: What to Include 28
About Fees and “Application Deposits” 30
How to Verify Information 31
Federal and County Housing Beneficiaries 34
Regarding “Borderline” Applicants 39
How to Turn Down an Applicant 40
Other Screening Tips and Warning Signs 41
A Note About Hiring Employees 44
RENTAL AGREEMENTS 45
Use a Current Rental Agreement 45
Month-to-Month or Long-Term Lease? 46
Elements to Emphasize 46
Pre-Move-In Inspection 49
“House Rules” 49
Key Pickup 50
ONGOING MANAGEMENT 51
Don’t Bend Your Rules 51
Responsibilities Defined 52
Property Inspections 54
Keep a Paper Trail 56
Trade Phone Numbers with Neighbors 56
APARTMENT WATCH/PROMOTING COMMUNITY 57
Key Elements 58
WARNING SIGNS OF DRUG ACTIVITY 62
The Drugs 62
Warning Signs In Residential Property 63
CRISIS RESOLUTION 68
Don't Wait - Act Immediately 68
The Secret to Good, Low-Cost Legal Help 69
If a Neighbor Calls With a Complaint 70
Eviction of Tenants Involved In Illegal Activity 71
The Court Process 73
Levels of Evidence 74
If You Have a Problem with a Neighboring Property 74
LAW ENFORCEMENT 78
Defining the Roles: Landlords and Police 78
What to Expect 79
Bawdy House Law 80
Nuisance Abatement 80
Federal Asset Forfeiture 80
Tenant Screening Services 84
Childhood Lead Poisoning Prevention Program 87
This manual was created by Campbell DeLong Resources, Inc. and the City of Buffalo. Many individuals and agencies participated in information gathering and draft review for this effort. In particular, we would like to acknowledge the participation of the following:
CITY OF BUFFALO
OFFICE OF THE MAYOR
BYRON W. BROWN
Although owner-occupied homes can be the cause of difficulties, more often it is complaints about rental properties and tenants in those properties that come to City Hall. Granted, both city government and police have a critical responsibility in dealing with these situations, but it is citizens - landlords, tenants, and homeowners - who remain the foundation that makes a community healthy!
The most effective way to deal with problems (whether drug activity or other problems) on rental property is through a coordinated effort with government, police, landlords, and neighborhoods. We are working the help neighbors take on more of the responsibility for preventing crime and problem behavior on their blocks. The police continue to develop better ways to address problems with drug and other problem activity in residential neighborhoods. What you can do is learn how to keep illegal and problem activity off your property and make a commitment to removing or stopping it the moment it occurs.
The intention of this manual is to help you do just that - to help honest, responsible tenants rent from responsible landlords, while preventing those involved in illegal activities from abusing rental housing and the neighborhoods in which they stand.
We acknowledge that most landlords want to take care of their property and be fair, and that most tenants are good people who care about where they live. Responsible property management and ownership begin with the idea that it will benefit all of us. If the information in this manual is used responsibly by all of us - tenants, landlords, and owner-occupants - we will enjoy safer and healthier neighborhoods.
MAYOR – CITY OF BUFFALO
POINTS TO CONSIDER
Community -oriented property management is also good business.
Landlords and property managers who apply the active property management principles presented in this manual, and in the accompanying training, have consistently seen improvements in the quality of their rental business. Applying the information presented in this training can result in significant benefits to each of the three interest groups in a residential neighborhood: Whole communities can become safer, residents can enjoy better housing, and landlords can enjoy greater business success. Here's how it works:
Costs of Drug Activity in Rentals
When drug criminals operate out of rental property, neighborhoods suffer and landlords pay a high price. That price may include:
Benefits of Active Management
Active management can prevent much of the rental-based drug crime occurring today. Developing an active management style requires a commitment to establishing a new approach. Landlords and managers interviewed for this program, who have made the switch to more active management, consistently report these rewards:
PREPARING THE PROPERTY
Make the environment part of the solution.
ADVICE WE WERE GIVEN:
“Drug people don't like to be seen. They can set up anywhere, but the farther they are from the manager's office, or the more hidden the house is from view, the better they like it.” - Police officer.
Make sure the aesthetic and physical nature of the property is attractive to honest renters and unattractive to dishonest ones.
Keep the Property Up To Habitability Standards
Maintaining housing standards is important to the public welfare and it protects against neighborhood decay. In addition, a substandard rental unit is more likely to attract drug criminals - it announces to potential criminals that the landlord's standards are low and that inappropriate tenant behavior is likely to be overlooked.
Also, eviction of a knowledgeable problem tenant from a poorly maintained unit can be both time consuming and expensive. For example, New York landlord -tenant laws protect tenants from retaliation if the tenant makes a “good faith complaint” to a government authority that the landlord is in “violation of any health or safety law, regulation, code, or ordinance…” ① In such a situation, if a landlord attempts to evict a problem tenant from a substandard unit, the court may be confronted with having to weigh the behavior of a problem tenant against that of a problem landlord. So in effect, landlords who fail to meet their responsibilities under the law may find that they have compromised their rights under the law as well.
Before renting your property, make sure it meets applicable local maintenance code, the habitability requirements of your local landlord-tenant law, and - if you rent to Section 8 tenants the U.S. Department of Housing and Urban Development (HUD) standards for “decent; safe, and sanitary” housing. While many of the basic elements of these requirements will overlap, they won't entirely, so you will need to check all three sources to make sure you are in compliance. For a general discussion of basic requirements, see the chapter on Ongoing Management. For the specific code that impacts your area, review applicable state and local law.
① RPL § 223-b. (Note that equivalent protection is granted to tenants who take other specified actions including making a good faith attempt to enforce rights accorded to the tenant under a lease or rental agreement.)
CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN (CPTED)
(pronounced “Sep -Ted”)
The role of Crime Prevention through Environmental Design (CPTED) is used to evaluate property in order to lower the amount of crime and the perception of crime in rental property. While nothing can totally eliminate crime, CPTED practices have been shown to be effective in reducing crime and the perception of crime.
Using the concepts of CPTED, a landlord can reduce the vulnerability and the criticality of any future litigation. The use of CPTED principles can be instrumental in developing a stable resident base; which means, less crime, less damage to property, less vacancy and less turnover at the end of lease periods. In short a higher return on investment.
Property owners are faced with court ordered damages when they fail to protect their residents or guests of their residents. No longer is it enough to have no prior knowledge of a problem to protect yourself in civil litigation. The standard of “Knew or should have known” is being applied liberally and landlords are being held responsible for all types of activity that occurs on their property. By identifying the vulnerabilities of your property and making a “good faith” effort to correct those discrepancies the landlord can protect themselves from “punitive damages” which are often not covered by insurance policies. Using the principles of CPTED, landlords can identify potential problems and develop a good faith file to avoid or lessen punitive damage awards.
CPTED divides property into different areas and defines who has control over that area. Public areas are those where anyone is welcome to be. An example would be a sidewalk, alleyway or street. Semi-private areas are those areas that although are open to the public are set apart from the public areas. These consist of porches, driveways and with rental properties storage areas. Finally there are private areas. Private areas are those areas that are set aside as belonging to one individual. Defining these areas and the separation of these areas gives not only the outsider, but also the tenant, a definition of what is their space and what is someone else's space. Problems arise when space does not belong to anyone. Unidentified ownership causes areas to be neglected and unwanted persons soon take over these spaces.
Identifying what is public, semi-private and private is easy when you own a single family home. The city owns the sidewalk and anyone can use it. The driveway and walkway are “mine” and anyone with legitimate business can use these areas. The defiant user however, should expect to be challenged if it is not obvious what their intentions are, such as the letter carrier. The grass and all of the rear yard are totally “mine” and these areas are off limits to everyone without permission. Anyone attempting to enter these areas will be challenged and had better have a good reason for attempting to go there. The problem with rental property and multi -housing properties is that these areas are not marked and are open to any of the tenants and their guests. It is sometimes difficult to identify who has responsibility over what areas of the property. Without this identification the tendency is to let “someone else take care of the problems.”
Areas can be marked by physical barriers to show ownership. Fences are the most common way to physically mark space as being private, or if the gate can be opened, semi-private. These fences however, are expensive and do not always have the Wanted effect of identifying who controls the area. Symbolic barriers are less intrusive and serve the same purpose; to provide the same identification effect.
Symbolic barriers do not actually prevent physical movement but they do leave no doubt as to whether a person has left public property and entered into private or semi -private property. Low decorative fences, flowerbeds, and changes in sidewalk patterns or materials and signs are examples of symbolic barriers.
Identification or areas is not always enough to get tenants to take control of the property, a tenant must be allowed, and expected, to care for the property.
Territoriality involves an individual's perception of, and relationship to, an area. A strong sense of territoriality causes an individual to take control and defend areas that they consider their private and semi -private space. Tenants who take control and show a strong sense of territoriality toward a property will protect that property, will keep the property clean and in a better state of repair than a tenant who looks on a property as “just someplace that I live.” Small problems will be reported quicker, before they become large expensive problems, and some small repairs will be made by the tenant without even notifying the landlord. It is up to the landlord to give the tenant permission to control the area when the tenant first moves into the property. Landlords who instill in their tenants that this is “your home” and I will help you keep up “your home” will have less problems than the landlord who tells the new tenant not to “damage my property” will.
Natural Surveillance, is the ability to see and to be seen. Tenants who have a clear view of the areas that they are responsible for will find it easier to assume territoriality over the property. Keeping the property visible by keeping trees and bushes trimmed properly will enhance the ability to see the property. Trees should be trimmed high enough (6') so that no one can hide in the lower branches to watch the house. Bushes should be kept low (3') so as not to provide hiding places. This is especially true for bushes that are near windows and doors. Lighting should provide illumination at night to commonly used areas. Motion sensor lighting should be used in areas that have very little traffic after dark such as driveways and backyards. The amount of lighting in common areas should be constant so as not to provide shadows where deviants may hide but also provide a psychological area of fear. We all know how fast monsters are! You know they are under the bed but by the time you turn on the light they have gone. Deep shadows provide the same type area as under the bed.
Access Control keeps people out of private areas. One of the goals of CPTED is to make a property safe without giving it a fortress look. Door and window locks can be deterrents to burglars and do not give the same impression that bars on windows do. The goal of CPTED is not to prevent all burglaries, but to make the entry into the property more difficult and time consuming. The difficulty of entering and increasing the time required to enter give the offender the impression that they may be seen and apprehended. Burglars do not want to be seen, heard or confronted. Studies have shown that burglars want to get inside quickly, take what they can find and exit the area quickly. By increasing the difficulty and the time involved to commit a burglary the burglar may move to another property or decide not to commit a burglary at all. Most properties can be secured by using common sense measures and the total cost should be around $15.00 or less per unit.
Activity Support is a concept that directs normal users of an area to places that will support natural surveillance. The more people use a space that allows natural surveillance and the feelings of ownership (territoriality) to show the less likely it will be that a crime will be committed in that area. By moving lawn furniture to an area where the driveway and the backyard can be seen the less likely it will be that someone will try and break into the rear of the house, even if no one is using the area at the time. Sitting on a front porch will have the same effect for the front and sides of the house. Knowing and speaking to the neighbors will also add to their desire to “protect their friends, and their friend's property.” Knowing and speaking to neighbors does not occur in neighborhoods where people stay inside behind closed curtains.
As a landlord there are numerous things that you can do to not only protect your property and your tenant's property but also to reduce you liability from civil litigation when problems do occur. By applying the fundamentals of Crime Prevention through Environmental Design a landlord can protect their investment while providing a safer environment and a better quality of life for multi-housing residents. All of this should lead to a more stable resident base; less damage to property, less vacancy and less turnover at the end of the lease period. In short, Crime Prevention through Environmental Design when applied properly can increase the profitability of your rental property.
For more information contact:
1153 Elmwood Ave
Buffalo, New York 14222
Keep the Property Visible, Control Access
The following are some recommended “first steps” for making “OPTED” changes to rental property. Taken alone, few of the following elements will have a significant impact. Taken together, they will stop some operators from wanting to move into the property, and will make it easier for neighbors (or surveillance teams) to observe and document illegal activity should it start up. Initial steps include:
In apartment complexes, make sure that all walkways, activity areas, and parking lots are well lighted, especially along the property perimeter. Covered parking areas should have lighting installed under the canopy. All fixtures should be of vandal-resistant design. Landscape planning should take into account how future plant growth will impact lighting patterns.
Large apartment complexes should have a permanent map of the complex, including a “you are here” point of reference, at each driveway entrance. These maps should be clearly visible in all weather and well lighted. If the complex consists of multiple buildings, make sure building numbers can be read easily from any adjacent parking area, both day and night. Also, make sure that rental units are numbered in a logical and consistent manner to make it possible for officers to locate the unit as rapidly as possible if called to it.
If more control is needed, issue parking permits to tenants. Post signs forbidding cars without permits to use the lot. Towing companies that specialize in this type of business can provide you with signs, usually for a nominal setup fee. Depending on the availability of street parking for guests, either deny guest parking altogether or limit it to specific spaces. Be consistent in having violators towed away. Remember, it is your parking lot, not a public one.
Keep It Looking Cared For
Housing that looks cared for will not only attract good tenants - it will also discourage many who are involved in illegal activity. Changes that help communicate “safe, quiet, and clean” may further protect the premises from those who want a place where chronic problem, activity might be tolerated. While these approaches are useful in any type of rental, because of the day-to-day control that apartment owners have over the common areas of their property, the following approaches can make a particularly strong difference in multi -family complexes:
Keep it Conformed to Code
Buffalo's housing code, is a part of the City of Buffalo ordinance. It provides uniform standards governing the condition, occupancy, and maintenance of all premises in the City, as well as the responsibilities of every person concerned with real property. All landlords of property located in the City of Buffalo must maintain their premises in accordance with the Housing and Property Code.
The Buffalo Housing and Property Code supplements all other federal and state codes and applies to all residential, commercial and mixed-use premises (commercial and residential) within the City. When a provision of the Housing and Property Code is found to be inconsistent with any provision of another code, the provision with the highest standard is enforced.
Copies of specific ordinances are available at the Department of Permit and Inspections Services office, located at 65 Niagara Square, Room 304 City Hall, Buffalo, New York 14202. It is recommended that property owners be familiar with these requirements.
Generally, The Housing and Property Code requires all owners to keep buildings and open areas hazard free; keep their property free of insects, vermin, and rodents; and maintain adequate facilities for the collection, storage, handling, and disposal of garbage and rubbish.
Comply with maintenance and repair standards. Among other obligations, landlords are required to:
Note that while the landlord bears the ultimate responsibility for the property, in general, the landlord's authority extends to holding tenants responsible for tenant-caused problems. For example, a tenant may be obligated to repair damage caused by willful or negligent conduct. Failures to make such ordinary repairs as are necessary to prevent decay of premises. A tenant does not have to make repairs caused by ordinary wear and tear.
Code Enforcement in Buffalo
The Department of Permit and Inspection Services is the government body that is charged with enforcing the various building codes within the City of Buffalo. The following is a description of the various certificates that property owners may be required to obtain:
Certificates and Designations
Certificate of Occupancy: There are two types:
Certificate of Occupancy (CO). A CO is issued when all work is complete. This certificate, when issued for buildings require the approval of various agencies.
Certificate of Compliance. This document certifies that an inspection was made of a multiple dwelling or a building of mixed occupancy was found to be in compliance with the Housing and Property Codes and other applicable laws and regulations.
Multiple dwellings are defined as buildings containing three (3) or more apartments and five or more rooms for Lodging Houses.
Mixed occupancy is defined as a building having one or more apartments with a commercial occupancy in the same structure.
Certificates of occupancy and compliance. No building hereafter structurally altered or erected shall be used or changed in use, wholly or in part, nor premises occupied or used, wholly or in part, until a certificate of occupancy and compliance shall have been issued by the Commissioner of the Department of Permits and Inspection Services.
For further information about certificates or other aspects of the Housing and Property Codes, please contact the Department of Permits and Inspection Services, 65 Niagara Square, Room 304 City Hall, Buffalo, New York 14202.
There are two primary situations in which a landlord or property owner may be contacted by the Department of Permits and Inspection Services. Both of which would require an inspection of your property. The first situation is when a complaint is made alleging violation of the Housing and Property Codes. The second is upon issuance of a permit for Electrical, Heating, Plumbing and Building repairs or renovations.
A Notice of Violation also indicates the time allotted for beginning or completing repairs (correction date). Open area violations can also be issued for trash, garbage, weeds, junk vehicles, and the like. The Commissioner of the Department of Permits and Inspection Services has the discretion to declare certain situations emergencies requiring immediate action.
When contracted, the owner has the duty to respond and complete repairs in the allotted time. If there are no violations discovered at the time of the inspection, the case will be closed or an appropriate certificate may be issued. If violations of Housing and Property Code exist, then further action, (such as repairs or additional inspections) will be necessary.
Failure to make a timely abatement of the violations will result in legal action against a landlord or property owner or a fine may be assessed if the work is not completed by the third inspection.
A permit is a formal document granting permission to commence some action. Permits are issued to fulfill legal mandates; to protect the health and safety of the general public; and to insure compliance with construction drawings, life safety codes, and generally accepted standards. The City's permit office is located on the third floor of City Hall in Room 301, Buffalo, New York.
When a permit is required. The City requires that no person or organization shall begin to excavate, erect, construct, enlarge, alter, re-model, repair, or demolish any building or structure or install any mechanical equipment or systems, such as plumbing, heating, electrical, air conditioning, ventilation, elevator, fire suppression, or detection systems, without first having applied for and obtaining a permit. Also, special structures such as swimming pools, signs, driveways, decks, parking lots, wood stoves, and fireplaces require permits. The cost of a permit is determined by the scope of the work to be performed. Interior and exterior painting or decorating, landscaping or work that does not exceed seven hundred and fifty dollars excluding structural changes does not require a permit. When in doubt about the need for a permit, call 851-4924.
If you begin work without first obtaining a permit, the law provides that a “stop work order” be issued and that, when the permit is finally obtained, a doubled permit fee be paid.
Inspection for permit work. Construction inspections are required during the various phases of construction. The permit must be placed in a visible location on the construction site and be accessible to the inspector.
Chronic Code Violations: “Slum Landlord” Signs
In the event of a history of repeated housing or sanitation violations which have not been responded to by a property owner, the City of Buffalo, in addition to taking any and all other appropriate legal action, may erect a sign on the City's right of way in front of the property. This initiative is used as a tool in dealing with individuals who choose not to correct serious problems at their property and who have failed to respond effectively to other notification methods.
Under the Code Enforcement Initiative for Chronic Code Violations, when a problem property has been identified - where open violations have been repeatedly cited and not corrected - the City may send a letter to the owner of the property documenting violations and indicating that public identification measures will be taken if the property is not brought up to code. After sufficient time for the property owner to respond, if compliance is still not received, a sign is erected in front of the property containing the name, home address, and telephone number of the landlord.
The City designed the “Slum Landlord” sign procedure as a tool to use when code violations at the property turn into chronic, ongoing problems. It is used only when there is a history of repeated housing or sanitation violations. Therefore, having signs posted on your property can be easily avoided by complying with code compliance requests appropriately when received.
“An ounce of prevention... “
COMPLAINTS WE HAVE HEARD ②:
“People say you should screen your tenants. You can't. The applicants lie about their previous landlord - they give you a fake address and the phone number of their brother. You call up the brother, he plays along and you never discover they were evicted at the last two houses they rented.”
“I thought I was calling the previous landlord and it was the applicant's parents - and the parents played along. It ended up in eviction, some months later.”
“We can't screen tenants worth anything. If you don't do it right, you could be sued for discrimination. So you check to see if they have income and that's it.”
ADVICE WE WERE GIVEN:
“I went to a meeting for landlords about these issues. I was surprised - most people in the room couldn't understand why they were getting bad tenants. They just couldn't see that there are ways to keep that from happening.”
“Most landlords, even some `pros,' are still practicing the old way of doing things - they take a social security number, make one phone call, and rent to the person. Then they wonder where the problems are coming from. Well, the old methods don't work anymore.”
“I've just quit relying on character judgment. For managing rental property, it doesn't work. I have a set application process, written down. Applicants must meet all the criteria. If they do, I rent to them. If they don't, I don't. It is simple, legal, and fair. At this point, every one of my properties has good people in it.”
“Many landlords are frightened of the fair housing laws. Some believe they can't screen at all. If landlords establish a fair screening procedure and follow it equally for each applicant, they will have a very strong case against discrimination lawsuits.”
“When I call previous landlords to verify an applicant's record, most are surprised to get a screening call from another landlord - apparently it happens too rarely.”
Attract honest tenants, while discouraging dishonest applicants from applying. Have a backup system to help discover if a dishonest person has applied. Use a process that is legal, simple, and fair.
② Unless noted, quotes are from landlords or professional property managers. Note that some “complaints” contain inaccurate or incomplete assumptions about legal rights or procedure.
There are two ways to screen out potentially troublesome tenants:
The goal is to weed out applicants planning illegal behavior as early as possible. It will save you time, money, and all the entanglements of getting into a legal contract with people who may damage your property and harm the neighborhood.
For the following steps to be most effective, it is just as important that applicants actually read and understand the rules and the process as it is that you implement the process in the first place. Implementing elements of the following suggestions may help protect yourself legally. Making sure that an applicant knows your commitment to the process may help prevent problems before they have a chance to grow.
Also, a word of caution: If you are looking for a one-step solution, you won't find it here. There are no “magic” phone numbers you can call to get perfect information about applicants and their backgrounds. Effective property management requires adopting an approach and attitude that will discourage illegal behavior, while encouraging the stabilization, and then growth, of your honest tenant base. What makes the following process so effective is not any one step, but the cumulative value of the approach.
Applicant Screening, Civil Rights, and Fair Housing
Landlords are sometimes confused over how much right they have to turn down applicants. A few even believe that civil rights laws require them to accept virtually any applicant. This is not the case. What follows is a brief explanation of fair housing laws and how they apply not just to screening but to the entire rental process.
The purpose of these laws is to prevent discrimination on the basis of person's membership in a protected class. They do not require you to show a preference fora member of a protected class, nor do they prevent you from setting fair screening guidelines and applying them equally to all applicants. Similarly, they do not prevent you from establishing rules; they just state that the rules must be the same for every tenant and should be enforced consistently. Adherence to these laws will not only help you avoid the appearance of discrimination; it will also help establish and maintain good tenant relations.
From advertising to screening, fair housing laws are designed to ensure that all qualified applicants are provided an equal opportunity to rent. Once you have selected your tenants, these same laws govern how they are treated. Federal fair housing guidelines prohibit discrimination based on the following “protected classes:” race, color, religion, sex, handicap, national origin, and familial status (the presence of children). The State of New York adds age (you may ask if someone is over 18) and marital status (whether someone is married single, widowed, or divorced). Locally, the City of Buffalo adds sexual orientation, and the Towns of Hamburg and West Seneca add lawful source of income.
Advertising and Screening Fairly
When deciding what to put in your advertisement, make sure it contains enough information to encourage “self-screening.” Include the size, price and location of the unit, as well as any restrictions such as “no pets” or “no smoking.” It is illegal to imply a preference for or an intent to discriminate against a particular class of people by, for example, using phrases such as “No children” “Italian West Side” or “Ideal for retired couple.”
Most landlords know that it's unlawful to deny housing on the basis of someone's membership in a protected class. It is also illegal to state that the apartment is not available when in fact it is, or to “steer” different groups of people to different housing opportunities. It is not your responsibility or right to decide where someone can or cannot live, even if you believe you are acting in an applicant's best interest. For example, you should not tell certain people that they would be happier in one part of town than another, separate certain groups of people by building or floor, or otherwise attempt to segregate tenants, for example families with children or people who have a disability.
In a face to face interview, or on an application, use the same set of questions for each person who applies and avoid questions that imply an intent to discriminate. Fair housing laws prohibit making statements, asking questions, or recording information about a person's age, race, sex, etc.
The key lies in making sure your process is fair - that it neither directly nor indirectly discriminates. To comply, you should design a fair process and apply it consistently and equally to all applicants. The following examples are consistent with federal fair housing guidelines:
Fair Treatment for Tenants
A through discussion of how to maintain good tenant relations is found in the section called “Ongoing management,” but a few things fall under the category of fair housing law and should be mentioned here.
Any rules you set should be clear and consistently applied. You may not set different terms and conditions for different types of tenants - for example charging certain people an extra security deposit or additional rent, requiring inspections more often for certain groups of people or responding to requests for repairs differently depending on who made them.
③ Because of age discrimination concerns in the state of New York, some New York landlords will elect to look at photo I.D. only after the applicant has been “provisionally” accepted - that is, the applicant is informed that, so long as information on the applicant's Photo I.D. is consistent with other information provided by the applicant or discovered by the landlord through screening, the applicant will be accepted. See additional discussion about requesting photo I.D. on page 22.
It is always important to respect a tenant's privacy, as violation of a tenant's privacy can sometimes lead to the appearance of sexual harassment, which is a serious violation of federal fair housing law. Evictions will also be discussed later in the training. Keep in mind that it is considered denial of housing under fair housing laws to evict a tenant because they are “too old,” disabled, don't speak English well, or any other reason having to do with their membership in a protected class.
Tenants with disabilities
Some landlords refuse to rent to disabled tenants because they fear they will incur additional costs for insurance or for adapting the apartment to meet someone's needs. Others may feel that a disabled tenant may jeopardize the safety of other tenants. Not only are these beliefs unfounded, to act on them is against the law.
The law defines a disability as a condition that severely impairs the ability to perform one or more life functions. This protected class includes people with mobility impairments, developmental disabilities, mental illness, and persons with HIV or AIDS. It also covers former users of illegal drugs.
The same rules apply to applicants and tenants with disabilities as to those who may appear to be without disabilities. You may not refuse to rent to someone solely because they are disabled. You may not inquire about the nature or severity of a disability, nor may you limit where a person may live because of a disability. If you have handicap accessible units available, you should state this fact to every applicant, not just those you feel might benefit from them.
There are two commonly misunderstood protections for people with disabilities. The first is the right of a tenant with a disability to make reasonable modifications to their unit serviceable for a person with a disability. You may not refuse to allow these modifications, as long as they would not cause you any undue hardship. The cost of the modifications is borne solely by the tenant, and you may inspect the plans before any work is done to make sure that the modification is done in a workmanlike way. Generally, you may also ask that tenants restore the apartment to its original state when they move.
The second protection is called a reasonable accommodation. This is a change in the rules, polices or practices of a dwelling to accommodate an individual with a disability. A reasonable accommodation must be requested by the tenant. You may ask that a tenant supply documentation from a medical professional showing that the requested accommodation is needed.
We have said earlier that you have the right to refuse pets, certain kinds of pets, or to charge a pet deposit. However, by law, a service animal (e.g. a seeing-eye dog) is not considered to be a pet. Therefore, even if you have a “no pets” policy in place, if you have a qualified applicant who requires a service animal, you may not refuse to rent to that person.
Remember, there is nothing illegal about setting fair criteria and holding all applicants to the same standards. By the consistent use of such guidelines, you can retain full and appropriate control over who lives in your rental units and who does not.
Fair housing protections for landlords
Fair housing law governs all housing professional. If you are looking to buy rental property, no real estate professional should attempt to interfere with your right to purchase property based on your membership in a certain class. Nor should they attempt to steer you away from purchasing property in certain neighborhoods.
It is illegal for lending or insurance agencies to discriminate against you by offering you different loan rates or more expensive policies due to your membership in a protected class, or due to the perceived racial composition of the neighborhood in which your property is located.
Landlords, under pressure from area businesses, block clubs, or owners of neighboring property, or simply because of an “unwritten law” have sometimes felt compelled to discriminate against certain groups of people. In extreme cases, landlords have received overt threats to themselves, their property and /or other tenants. Fair housing laws make it illegal for anyone to interfere with your right not to discriminate. If you have received a threat, be sure to report it immediately both to an appropriate law enforcement agency and to a fair housing organization, which can give you support and advice.
It's important to remember that these laws are designed to remove the discrimination that weakens our communities. When you comply with fair housing laws and stand up for your own rights, you are setting an example for others to follow. Even if it is difficult, by complying with the spirit as well as the letter of the law, we will build a stronger, more equitable society.
Written Tenant Criteria: What to Post
Many of the attorneys and legislative authorities interviewed for this program recommend developing written rental criteria and posting a copy of those criteria in your rental office. If you do not have a rental office that all applicants visit, they suggest attaching a copy of the criteria to every application you give out.
If you are, going to use written criteria, remember to have applicants read the document. Posting information alone is of limited prevention value unless applicants know it is there.
The following is intended as a “generic” example of information a manager might post and direct each applicant to read. The intent is to encourage every honest tenant to apply, while providing dishonest applicants with an early incentive to seek housing elsewhere. Every drug dealer who doesn't apply is one more you don't have to deal with.
By itself, this information will scare off only a few people involved in illegal activity. Most have heard tough talk before. Many expect landlords to be too interested in collecting rent to care about applicant screening. It is important to follow through in word and action - continually reinforce the point that you enjoy helping honest tenants find good housing by carefully screening all applicants, and then actually screen them.
While we have attempted to make sure the following section adheres to the goals of national fair housing guidelines, there may be criteria listed that do not meet the requirements of some state or local civil rights laws. Further, complying with federal and local civil rights laws involves much more than the language used in the applicant screening process. If you are not familiar with your fair housing responsibilities, seek information from a local rental housing association or from an attorney who specializes in the subject.
Also, the following is only an example intended to show various types of rules that might be set. You should adjust the criteria as appropriate for your own needs. Whatever criteria you set, have them reviewed by an attorney familiar with current landlord -tenant issues before you use them.
Introduction. Here it is important to “set the tone” for your applicants - make sure that good applicants want to apply and that bad applicants may begin to think twice. Here's one approach:
We are working with neighbors and other landlords in this area to maintain the quality of the neighborhood. We want to make sure that people do not use rental units for illegal activity. To that end, we have a thorough screening process.
If you meet the application criteria and are accepted, you will have the peace of mind of knowing that other renters in this area [apartment complex] are being screened with equal care, and as a result, there may be a reduced risk of illegal activity occurring in the area.
Please review our list of criteria. If you feel you meet the criteria, please apply.
Please note that we provide equal housing opportunity: we do not discriminate on the basis of race, color, religion, sex, handicap, national origin, familial status, age, marital status, or sexual orientation.
This criterion helps to make sure that every application has enough information for you to make an informed decision. One of the simpler methods for hiding one's financial history is to “forget” to fill in one's social security number on the application form. Without a name and social security number credit checks cannot be run. ④ To the person contemplating illegal activity, this requirement will communicate a very basic message - that you will actually screen your applicants. That message alone will turn away some.
This rule also allows you to receive an application from each adult who intends to be a tenant and not just the one with the good rental history. People involved in illegal activity may have friends and roommates who still have clean credit or a good rental history. The obvious approach for such people is to have the person with the good rental history apply and then follow that person into the unit. You have a right to screen every adult who intends to be a tenant, ⑤ so require an application and verify the information for each.
④ Date of birth is also very valuable to have to ensure accurate identification of the applicant and prevent uses of some types of fraudulent identification. See discussion of issues relating to requesting date of birth on page 26 for more on this topic.
⑤ A “tenant,” under New York law, includes any person who is “a party to the lease or rental agreement.” Note, however, that there are at least two types of adults who could live in your rental unit who would not be “tenants:” immediate family members of a tenant who are 18 or older and do not wish to sign the rental agreement, and “occupants,” essentially an adult guest permitted to live in the unit with a tenant. For more on this topic, see discussion of New York's “roommate” law beginning on page 46.
This is a simple and effective rule. The second piece of identification does not have to be very “official” - generally a credit card, student ID card, or many other types of cards will do. The issue is that a person who carries false identification may not have two pieces of false I.D. with the same name on them
While the rule may be simple, some care must be taken when setting it to ensure that it not become too restrictive, and thus be found to be in violation of New York State Executive Law 296.5, which states, in part, that it is considered illegal discrimination for a landlord to “make any record or inquiry” in connection with an applicant “which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, sex, age, disability, marital status, or familial status, or any intent” to so discriminate. Because of age discrimination concerns in the state of New York, some New York landlords will elect to look at photo I.D. only after the applicant has been “provisionally” accepted - that is, the applicant is informed that, so long as information on the applicant's photo I.D. is consistent with other information provided by the applicant and with information discovered by the landlord through screening, that the applicant will be accepted. You may also wish to state expressly that I.D. is checked to verify identification only.
While the, least controversial approach would be to avoid asking for any identification, it makes very little sense to get into a long-term financial relationship with an individual whose identity has not been verified.
As with all screening criteria you set, verify your policy on this issue with your landlord -tenant attorney before implementing it. For more on the issue of age discrimination and date of birth inquiries, see page 26.
It is your responsibility to provide us with the information necessary to contact your past landlords. We reserve the right to deny your application if, after making a good faith effort, we are unable to verify your rental history.
If you owned - rather than rented - your previous home, you will need to furnish mortgage company references and proof of title ownership or transfer.
Variations of this rule have been used by many landlords to address the issue of renting to those who do not have a rental history or those who say “I last rented from my mother (or father, aunt, or uncle).” This makes it harder for a dishonest applicant to avoid the consequences of past illegal behavior - while loyal relatives may say a relation is reliable, they might think twice about co-signing if they know that isn't true.
If requiring a co-signer seems unwieldy for your type of rentals, you may want to offer a different option: require additional pre-paid rent or security deposit from people who don't have a verifiable rental history.
We must be able to verify independently the amount and stability of your income. (For example: through pay stubs, employer/source contact, or tax records. If self-employed: business license, tax records, bank records, or a list of client references.) For Section 8 applicants, the amount of assistance will be considered part of your monthly income for purposes of figuring the proportion.
You can, and should, verify self-employment. Drug dealers may describe themselves as self-employed on the assumption that you will have to take their word as verification. Some will be unprepared to supply tax returns, a copy of a business license, or other verification.
It may also be appropriate to remove income requirements for Section 8 applicants since your local Public Housing Agency (PHA) will have already determined the amount of subsidy based on ability to pay. Note also that some landlords include a condition for those applicants who do not have a regular monthly income, but do have substantial savings on which to draw. Landlords who set such guidelines often define a minimum cash net worth (described as a multiple of the monthly rent) for people in this category.
If your applicants are not honest with you, you may turn them down. It's that simple.
This criterion is more controversial than it may seem, because even people who have been convicted of a crime need a place to live. In some states people who have been convicted of a crime - and served their time - are granted limited protected class status. While you may set this type of rule in the State of New York, don't use this requirement as a crutch - many drug dealers haven't yet been convicted of a crime. In addition, few people who are planning to use a rental for illegal activity, whether or not they have a criminal record, will have a verifiable, clean rental history. If you are performing the other recommended screening steps conscientiously, this criterion will often be unnecessary.
Although, in most cases, you may turn down applicants who have been through a recent court-ordered eviction, we recommend maintaining flexibility for some instances. After all, some evictions are not deserved. It also seems inherently more fair to give people who have made a single mistake the chance to improve.
If you are renting property, you are effectively making a loan of the use of your property to your tenant. Banks don't loan money to people with poor credit. You don't have to loan the use of your property either.
You may also want to have exceptions for specific types of bills. For example, you might wish to allow exceptions if the only unpaid bills are for medical expenses. However, regardless of what other exceptions you define, remember that it is a very poor idea to accept tenants who have a history of not paying previous landlords - if they didn't pay the last landlord, they may not pay you either.
Also, you will be turned down if a previous landlord would be disinclined to rent to you again for any reason pertaining to lease violating behavior of yourself, your pets, or others allowed on the property during your tenancy.
One of the very best indicators of an applicant's future behavior as a tenant is that applicant's past behavior as a tenant. You have a right to know if the applicant has been a good tenant and to screen based on that information.
The reason for charging a small “earnest money deposit” is to help ensure that every applicant who does apply is committed to renting the unit. That way the landlord doesn't waste time and money screening those who are not planning to rent. Also, this requirement may discourage some people involved in illegal activity from applying. An alternate way of approaching this issue is to charge a small applicant screening fee to cover the cost of running a credit check - either approach can help raise the commitment level of the applicant and reduce the likelihood that the landlord will spend time screening applicants who then reject the unit. See the discussion on page 28 for more on this topic.
In the interests of ensuring that you meet the requirements of fair housing law, this is the best policy to set. Take applications in order, noting the date and time on each one. Start with the first application. If that applicant meets your requirements, go no further - offer the unit to the first applicant. This is the most fair policy you can set, and it helps make sure that you do not introduce inappropriate reasons for discriminating when choosing between two different, qualified applicants.
Some landlords post a copy of the rental agreement next to their screening requirements. Others offer a copy to all who wish to review it. The key is to make sure that each applicant is aware of the importance you place on the rental agreement. In addition, you may want to set a procedure to ensure that every applicant is aware of key elements of the agreement that limit a tenant's ability to allow others to move onto the property without the landlord's permission. One approach:
If you are accepted, you will be required to sign a rental agreement in which you will agree to abide by the rules of the rental unit or complex. A complete copy of our rental agreement is available for anyone who would like to review it. In particular, in addition to other important requirements, please note that your rental agreement will:
Please read the entire rental agreement carefully, as we take each part of the agreement seriously. The agreement has been written to help us prevent illegal activity from disturbing the peace of our rental community and to help make sure that our tenants are given the best housing we can provide.
Other Forms and Procedures
At this point, you may want to post information, as applicable, about waiting list policies, security deposits, prepaid rent, pet deposits, check in/check out forms, smoke detector compliance, and other issues relating to rental of the unit.
Application Information: What to Include
The best approach is to avoid reinvention of the wheel - contact a local legal publishing company, a rental housing association, or your own attorney for copies of appropriate forms. Whether you are using application forms or rental agreements, make sure you have forms that were designed specifically for the laws that govern your area and are up-to-date with any recent changes.
These requirements, and others, will be on many standard forms:
One approach would be to add a clarification that date of birth is required for verification of identity only (particularly on the credit report) and otherwise shall have no bearing whatsoever on the screening of applicants. The reason why it is beneficial to collect date of birth is that it makes it more difficult for dishonest applicants to provide false identification - for example, a credit check will reveal possible fraud if the name, social security number, and date of birth do not match that given on the application.
Finally, while the research conducted prior to completing this manual did not uncover other barriers in New York law to requesting date of birth, other than those discussed above, we recommend that landlords contact their attorneys on this issue prior to implementing an approach that includes collecting the information.
The following question is not typically on standard forms, but could be added. If you are going to use it, make sure you include it on all application forms and not just some of them.
Of course, if they do have a conviction, they may lie about it. However, if you discover they have lied, you have appropriate grounds for denying the application or, with the right provision in your lease, terminating the tenancy. Also, it is one more warning to dishonest tenants that you are serious in your resolve.
About Fees and “Application Deposits”
Some landlords charge an application fee to defray the cost of screening. Some landlords require an earnest money deposit at the time of application to make sure the applicant is serious about renting the unit. While policies vary, most stipulate that if the applicant is accepted, but chooses not to rent the apartment, the fee or deposit will not be refunded. The value of charging a fee or collecting a deposit with the application is preventive:
Charging an earnest money deposit, or an application fee, is not for everyone. In addition, because of the potential for abuse, local landlord -tenant laws often regulate policies associated with deposits and fees. Research conducted for this manual has not identified laws that regulate approaches to applicant screening fees in City of Buffalo. In general, we suggest the following approach as a fair “earnest money” or “application fee” policy:
For more information about fee and deposit policies - as well as guidance on appropriate forms to use - contact a local property management association or an experienced landlord-tenant attorney.