Posts Tagged Screening Tenants

Screening Prospective Tenants Is a Must — That Includes Commercial Tenants

Those of you that have attended my seminars or read prior blog posts of mine are well aware that in my opinion screening prospective tenants is the single most important part of landlording.

These sentiments apply to commercial tenants as well as residential tenants.  Just because your tenant is a corporation, LLC or some other business entity does not make make them legitimate.

A corporate tenant can also fail to pay rent, damage your property, and otherwise be a nightmare.  In fact some tenants can hide behind an empty shell of a corporation (or partnership or LLC) and actually turn out to be a commercial tenant from hell.

I was recently interviewed by Colleen Henry of Ch. 12 News about one such “professional” tenant from hell.  This tenant moved her business into her landlord’s rental unit and refused to move out even though she had not paid rent for months.  She bounced her check for the security deposit.  She bounced her check for the 1st month’s rent.  She refused to make any other rental payments.  She ignored her landlord’s pleas to pay rent or move.  Once her landlord began the process to evict her, she filed bankruptcy.  By doing so all creditors, including her landlord, were precluded from attempting to collect from her (including the filing of an eviction action against her) until they received permission from the bankruptcy court.  And this wasn’t the first landlord that this tenant did this to.  She had done this to landlords before.

Tenants such as this one make good landlords want to get out of the business.

My recommendation to landlords who are or have been in this difficult situation is not to give up and get out of the business but rather take the time to educate yourself about landlord tenant law so that you are better equipped to handle such a situation in the future.  Chances are the better educated you are the better chance that you will not rent to the tenant from hell because you will have learned enough to know that you ALWAYS, ALWAYS must screen your tenants before signing a lease and/or handing them the keys to your property.

 

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New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser.  A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP.  While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error.  While that certainly does occur, that is not the typical situation in which a case is dismissed.  The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case.  This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work.  I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence – Battery.  It was alleged that he beat up his girlfriend.  All 8 times it was alleged that he beat up his girlfriend.  I attempted to meet with my client to prepare for trial.  He refused, just smiled, and told me that it was not necessary.  I told him that I could not represent him properly if we didnt prepare.  He told me again not to worry and that there would not be a trial.  I reminded him that there was a “no contact” order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him.  He smiled and said he would never do anything against the law.

The trial date came and the victim did not show.  As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden.  My client smiled at me and said “See, I told you you didnt need to worry – no trial.”  He then walked out of the court room.

Even though I was young and stupid, I was not naive.  I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood.  The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn’t control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriestocking.com.  Let’s make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

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East Side Landlord “Think Small” Seminar Event on March 13th

Make plans to attend the fourth East Side Landlord Think Small event hosted by UWM!

This event is free and open to all interested landlords, with a special focus on Milwaukee’s East Side.

This spring’s event promises to be very engaging with featured presenter Attorney Tristan Pettit, who focuses his practice on representing landlords and management companies in landlord-tenant law matters.

Topics will include screening potential tenants and recent updates to landlord-tenant laws in Wisconsin.

As always, there will be networking time to share ideas with fellow attendees, Q&A time with the presenter, and light refreshments will be served.

Event Details

Date: Wednesday, March 13, 2013

Location: Chapman Hall on the UWM Campus, 2310 E Hartford Ave, Regents Room (2nd Floor)

Time: 4:30pm-6:00pm

Please RSVP to Heather Harbach at harbach@uwm.edu.  Your registration helps us in our planning for this event. Please feel free to share this with other landlords that might find this session interesting! If you have further questions, please contact Heather Harbach, UWM Neighborhood Relations Liaison by e-mail at harbach@uwm.edu or by calling 414-229-4451.

Hope To See You There!

 

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HUD Issues New Rule On “Discriminatory Effect” a.k.a Disparate Impact

HUD has issued a new Fair Housing “disparate impact” rule that may cause problems for landlords during the screening process.  The new rule creates a new provision entitled “Prohibiting Discriminatory Effects” which defines “discriminatory effect” as situations in which a facially neutral (i.e. not discriminatory) housing practice can become discriminatory if it actually or predictably has an effect on a group of persons that are members of a protected class.

The concern is whether or not this new rule will restrict landlord’s use of criminal background checks on prospective tenants.  Recently Pepsi Co. agreed to pay $3.13 Million to resolve allegations of hiring discrimination against African-Americans based on Pepsi’s use of the African-American’s arrest records.

This recent settlement when read in conjunction with HUD’s new rule causes concern regarding whether it will be considered discriminatory to use a person’s criminal arrest or conviction as a basis for rejecting a rental applicant when such use would result in members of a protected class being rejected as tenants.  For more on this issue and
please read Tim Ballering’s blog post entitled ‘Will Criminal Background Checks For Screening Be Restricted By Proposed Federal Rule?”

In light of this concern, the AASEW’s Executive Committee submitted the following comments to HUD:

The Apartment Association of Southeastern WI, Inc. is a trade association representing approximately 575 owners and managers of rental housing in the Metro Milwaukee area.

Our organization supports Fair Housing as well as community efforts to reduce the effects of crime within the neighborhoods that our members own and manage rental housing.

We are concerned that this proposed rule will restrict the  legitimate and necessary use of criminal arrest and conviction records in screening tenants to exclude those who will cause disruption and harm to other occupants, the neighborhoods those properties are located in, and to our properties.

Many communities in southeastern Wisconsin have “Nuisance Property Ordinances” that hold owners accountable for the misdeeds of their tenants.  For example Milwaukee’s Nuisance Ordinance does not require the conviction, nor the arrest of the tenant or their invitees, rather simply repeat law enforcement activity will trigger the enforcement provisions of that ordinance.

As part of your proposed rule property owners need “bright line” guidance, establishing what background screening criteria and methods will remain acceptable under this proposed rule as well as protections from potentially conflicting local requirements.

It would be inequitable, causing unnecessary costs and harm to property owners if such guidance is not provided in advance of the implementation and enforcement of this proposed rule.

Hopefully additional guidance will be provided.  If and when it is I will be sure to provide everyone an update.

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CCAP Committee’s Recomendation To Change Wisconsin’s Expungment Laws Shot Down

Last year Wisconsin’s Joint Legislative Council created a Special Committee On The Review of Records Access of Circuit Court Documents – what I affectionately referred
to as the CCAP Committee.  Landlords were very fortunate that in the end the committee made no recommendations to change or alter information on CCAP or limit its access by landlords or any other group.  The committee’s sole recommendation was to call for the liberalization of Wisconsin’s criminal expungement statute.

The proposed bill, if passed would have done the following:

1.  Defined what is meant for a court to expunge a court record (and yes, this did include removing any reference to the conviction from CCAP)

2.  Clarified that an expunged record may not be considered for employment or housing matters.

3.  Stated that a person may petition the circuit court at any time to expunge the following:

-  any court record of a person who was under the age of 25 at the time the crime was committed and who was found guilty of a forfeiture, misdemeanor, and certain (lessor) felonies, that are punishable by up to 6 years in prison.

- any court record of a person charged with an offense punishable by a forfeiture, misdemeanor, or felony in which all charges were dismissed or for which the defendant was acquitted AND the court determines that the person will benefit by the expungement and that society will not be harmed by the expungement.

So as you can see, the proposed bill would have negatively affected landlords in the screening process and if passed would mean that a landlord would find no record of the applicant having ever been charged and convicted of crime x, y or z (or charged and acquitted or charged and the later dismissal of the case), if the applicant had applied for and received an expungement.

It also would have meant that even if the landlord somehow learned of the conviction (or acquittal or dismissal) and the later expungement, that the landlord could not use that information when making a decision on whether or not to rent to that individual.

Furthermore, it would have meant that a landlord would be precluded from inquiring as to the existence of any expunged record from a rental applicant whether that question
be on the rental application itself or verbally when talking to the applicant.

Thankfully we do not have to worry about this proposed bill being passed as it never even got introduced.  In a notice dated January 20, 2012, the Director of the committee wrote to the members of the committee to inform them that their recommended bill was not approved for introduction by the Joint Legislative Council by a vote of 13 to 6.  While a petition can be circulated to have the matter reconsidered, I have not heard of that happening.

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Update on Landlord Pre-Emption Bill

It has been awhile since I updated everyone on the pro-landlord legislation that is being addressed in Madison.  Senate Bill 107 (SB 107) — referred to as the Landlord Pre-Emption Bill —  has been passed by the Wisconsin Senate and is currently being reviewed by the House this term (AB 155).

You may recall that SB 107 prohibits any municipality from enacting any ordinance that limits a landlord from obtaining or using various types of information about a tenant or prospective tenant, such as household income, occupation, court records, rental history, and credit information, or limits how far back in time a prospective tenant’s
credit information, conviction record, or previous housing may be considered.

The bill has received much opposition from local municipalities and their lobbyists, not for the substance of the bill, but rather for the fact that if passed, the law will
restrict a municipality’s ability to draft certain ordinances.  Essentially the municipalities feel this to be a breach of their own sovereignty and an example of the state overstepping its bounds.  Many feel that this is really just a Madison problem — since it is the City of Madison that has enacted many of these restrictions on what information a landlord can consider when making a rental decision – and therefore should be dealt with at the city level.

Another group of critics believe that the bill discriminates against African-Americans.  Four Dane County Board Supervisors, two Madison City Council members and one Madison School Board member, sent a letter to Governor Walker and legislators on September 7, 2011, asking that the provision of the bill that will allow landlords to deny housing to tenants with criminal histories be removed because is discriminates against African Americans.

They argue that allowing a landlord to deny a rental applicant housing based on his/her criminal convictions will unfairly affect African-Americans because while they
only comprise 6% of the state’s population they account for almost 50% of those with arrest and conviction records.  Thus the critics of the bill argue that to allow a landlord to deny a rental applicant based on his/her criminal record is to allow landlords to deny housing based on race.

The critics are relying on the doctrine of “disparate impact.”  The disparate impact doctrine holds that certain laws may be discriminatory and illegal – even if the law is neutral on its face — if they have a disproportionate “adverse impact” on members of a minority group.

This disparate impact argument is ignoring a key ingredient – one’s choice to engage in criminal activity.  One’s race is not something that a person has control over – we are born into a certain race.  On the other hand, individuals do have control over whether or not they engage in criminal activity.  Committing a crime is a volitional act.  Being born African-American is not.  We are dealing with apples and oranges here.

Disparate impact arguments are often raised when a law unintentionally affects a minority group through no fault of their own.  This small group of critics, are trying to apply the disparate impact doctrine to individuals that made a voluntary decision to engage in criminal activity.

 

UPDATE – 10-28-11 — On Wed. Octo 26, 2011, By a vote of 59-34 the Assembly voted to suspend a rulling on AB155.  An amendment was made by Rep Chris Taylor (D-Madison) that would protect some local control within the bill – the amendment was tabled by a vote of 60-33.

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AASEW’s Next Meeting Focuses On The Topic of Credit Reports – Monday, July 18th

Would you like to know if your prospective tenant is a good credit risk?

Then join the Apartment Association of Southeastern Wisconsin (AASEW) at our General Membership meeting on Monday, July 18th, 7:00 p.m, at the Best Western, 1005 South Moorland Road in Brookfield.  Kathy Haines, of Landlord Services, LLC will present “Credit Reports 101:  How To Determine If Your Prospective Tenant is a Good Credit Risk”

 At 6:30 p.m. right before our meeting, come to network with others in the industry and enjoy free appetizers!

Also at 6:30 p.m. come to our Traders Corner if you are interested in buying or selling rental property and bring your listings with you!!

Have a question for a seasoned landlord?  Stop by for Meet your Mentor, at 6:30 p.m. as well!

We hope to see you there!

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