Published on: August 31, 2011
Looks can be deceiving. That was certainly the case for the manager of an ultra-luxury apartment building in downtown Boston, when an attractive, well-dressed, well-spoken young woman announced that she needed to rent an apartment immediately. The prospective tenant explained that she had recently arrived from Turkey and had secured a highly-paid position; a letter from her employer, confirmed the $8,000 per month salary she claimed. She was currently living in a high-end hotel, but wanted to be settled in an apartment before her new job began the following Monday.
“No problem,” the manager (we’ll call her Susan) replied. “We have an available apartment and it won’t take long for me to perform a credit check.”
Well, the credit check would be a problem, the young woman explained apologetically; because she had not been in the United Stated very long, she did not yet have a Social Security Number, which is required to pull a credit report. “Can we work this out?” she asked.
Susan pondered. Although a credit check is standard policy for her building, without a social security number, what was the point? And everything about this woman – her expensive clothes, her pleasant, soft-spoken demeanor, the letter from her employer and the luxury car in which she had arrived — seemed to support her story. And how could she let a prospect willing to pay $8,000 a month for an apartment slip away? So Susan accepted a check for $24,000 (which the woman wrote without hesitation) to cover the advance rent and security deposit, turned over the keys and welcomed her to the building.
A Sinking Feeling
The new tenant and her belongings arrived the next day. While the movers were unloading the furniture, Susan received a call from the manager of another luxury downtown apartment building, asking if a young woman, recently arrived from Turkey to begin a new job, was moving in. Susan began to explain that privacy concerns prevented her from discussing her tenants, but the other manager interrupted: “We just evicted that tenant,” he said. “It took us three months to get her out.” This manager had asked the movers where they were taking the evicted tenant’s furniture and had called to give the new landlord a heads up.
With the sinking feeling that comes from knowing you’ve made a huge mistake, Susan called the bank and discovered that, in fact, the tenant’s $24,000 deposit check had bounced.
This story had a happier ending for this landlord (whom we represented) than it did for the owners of the three other buildings at which, we discovered, the “tenant from Turkey” had used the same ploy, managing to live rent-free for about three months in each while the eviction process played out.
Like the other landlord victims of this ruse, we brought an action in Housing Court. But instead of seeking to evict the tenant, we accused her of trespassing, arguing that because her deposit check had bounced, and because she had lied about her job and her salary (she had neither), she had never established a tenancy. The judge agreed and, within a few days of moving in, the tenant trespasser was ordered to vacate the premises. So the tenant from Turkey did not turn into the tenant from hell for our client.
But the outcome could have been very different. The judge could have determined that our client bore some responsibility for the mess, because Susan, the manager, did not do the base line screening that would have alerted her that something was wrong before she accepted the tenant.
Don’t Do It!
Nothing good ever comes from the failure to vet a prospective tenant. Watching a landlord decide to skip this process is like watching an old-fashioned horror movie: When one of the characters opens the cellar door and begins to walk down the darkened stairs, you know what’s going to happen and you want to scream loudly, “Don’t do it!” Those horror movie characters never listen. And though we know what can happen when landlords fail to screen prospective tenants, our clients don’t always listen to us either.
The tenant horror stories that result abound. One recent example: Owners of a home in a pricey Boston suburb, who were strapped for cash, decided to rent out their carriage house. The prospective tenant who responded to their ad was well-dressed and polite (sound familiar?) and the owners were in a hurry, so they accepted his explanation that he’d been working overseas, didn’t do a credit check (because they didn’t want to spend the money) and didn’t even review his application, just shook his hand and gave him the key.
He moved in and immediately stopped paying the rent. After we had won a court order evicting him, but before the tenant had moved out, our client was standing at his mailbox when a postal truck pulled up, the doors opened and a swat team jumped out. They told our client to stay put, stormed the carriage house and arrested the tenant, who was wanted on felony charges in another state.
Even a cursory view of his application would have revealed gaps that made no sense; a credit check would have made it clear that this was not a tenant the owners wanted.
Landlords of less expensive (non-luxury) rental properties require credit checks for all prospective tenants with no exceptions. They know better than to assume that tenants who look and sound responsible will be. Looks can deceive. Just ask Susan if you disagree. That’s why we advise our clients to reject tenants who won’t permit a credit check (a definite red flag – what is it they don’t want you to see?) or who don’t have a Social Security Number. We also advise them, for obvious reasons, never to accept a personal check for a deposit.
There is some concern that requiring a Social Security Number will bar rentals to many foreign students and other foreign nationals, who might be good tenants. Some tenant attorneys have also suggested that landlords who require a Social Security number are discriminating illegally based on nationality or national origin, by renting only to U.S. residents.
Demonstrating Due Diligence
But requiring a Social Security number is neither unreasonable nor discriminatory. Social Security numbers are easy to obtain, you don’t have to be a U.S. citizen to get one and the non-discriminatory purpose for requiring them is clear: Credit reporting companies won’t provide a credit report without them. There is no other way for landlords to review the credit history of prospective tenants. That said, landlords should, of course, apply this requirement uniformly in order to avoid claims of discrimination.
As a practical matter, a prospective tenant with a newly issued SSN isn’t going to have much of a credit record to check, but by enforcing this requirement uniformly, landlords can demonstrate that they are making reasonable efforts to screen all their tenants – due diligence that, it is likely, other tenants are expecting the landlord to perform. If a tenant turns out to be an axe murderer or a child molester, tenants who are harmed may argue that they assumed the landlord screened all tenants and relied on that assumption. The landlord who has made every effort to screen the bad tenant — even if the background report revealed nothing – will have a much stronger liability defense than the landlord who did no screening at all.
The “tenant from Turkey” story has a post-script. The night before the Housing Court hearing, I got a call from the woman’s live-in boyfriend, who explained that her situation was desperate.
She had lost her job, lost the apartment she had been renting, and, he explained, “her parents wouldn’t send her any more money.” The boyfriend said it was he who suggested that his girlfriend masquerade as a well-heeled, newly employed prospective tenant, because as long as she looked the part, he was sure no one would check. He was right about that – the ploy worked at four buildings, two of which were owned by the same company.
Scamming these landlords was justified, the boyfriend told me, because “she had no place else to go. What else was she supposed to do?”
I told him I wasn’t going to try to give him a morality lesson on the phone, but I pointed out that other people who have lost their jobs and their apartments have found ways of dealing with the situation that didn’t involve fraud.
The boyfriend had one other question: “Do you think she needs an attorney?”
“I can’t give you legal advice,” I replied. “But yes, I think she needs an attorney – a criminal attorney.”