Landlord and tenant

In terms of privacy, the relationship between landlord and tenant in the United States is an unbalanced one. In general, laws in all 50 states protect the business interests of the landlord (i.e., the right to find a desirable tenant and to protect his or her property) rather than the right to privacy of the tenant. Renting provides a challenge to privacy, as these owners’ right to protect the rental property often requires that tenants give up their right to be let alone in their residence or business. Most states provide some protection from unnecessary landlord intrusions; however, in order to rent, tenants give up their privacy to credit ratings and reports as well as background checks, which often give landlords access to both personal and financial information about prospective tenants.
Tenants are granted several rights that relate to privacy in rental properties. First, landlords do not have the right to trespass. Landlords in all states are allowed to enter their properties without their tenants’ permission only in case of emergencies that threaten life or property, to make repairs or improvements, and to show property to prospective tenants or buyers. Second, landlords are not allowed to invade tenants’ privacy through harassment, voyeurism, or surveillance. Finally, in all but three states, tenants have the right to the “covenant of enjoyment” requiring landlords to provide a safe and clean living environment.
Some states have taken additional steps to protect tenants’ right to privacy by requiring landlords to give prior reasonable notice before entering for non-emergency reasons. Unfortunately, this protection varies considerably from state to state, and over half of all states do not have a statute or do not provide notice guidelines in their statutes. States that do require landlords to give reasonable notice require landlords to give notice 12 to 48 hours prior to entry. Most states also allow courts to decide whether or not landlords gave reasonable notice depending on the circumstances. States do not necessarily require landlords to give written notice and do not always specify the time of day when landlords may enter the property. Delaware specifies that entry must occur between 8 a.m. and 9 p.m., and California requires entry during normal business hours.
Although tenants have the right to disallow their landlords from entering their residences, especially if the latter do not follow state laws, these rights are very limited. All states grant landlords the right to access, especially if they give reasonable prior notice, and grant landlords the right to evict and/or end the tenancy if tenants refuse to let landlords into their residences. Tenants who do not have long-term leases or who do not live in states that require landlords to provide cause for ending tenancy are even more at risk if they do not cooperate with their landlords. Landlords in these cases can terminate residency agreements without cause.
Landlords are not the only individuals who may have a legal right to invade a tenant’s residence. Local and state public health and safety inspectors may also enter a tenant’s residence if they have a warrant or get cooperation from the landlord. Landlords in states with reasonable notice are still required to provide prior notice before letting the inspectors into the residences. Local and state police officials may also appeal to landlords to gain entry into rental units, but must also produce a warrant or show probable cause of criminal activity. Landlords who allow other people in without proper notice or tenant consent are legally liable if there is damage to or loss of property. In general, tenants’ rights are better protected when the right of entry and reasonable notice is specified in the lease.
In addition to routine maintenance and inspections, landlords in most states have the right to enter residences if they suspect a resident of unlawful behavior. In particular, landlords are held responsible for protecting their other tenants and their neighborhood from drug dealing or other dangerous activities. Moreover, landlords not only are allowed to violate tenants’ privacy if they believe there is drug use or dealing occurring on the premises, but are financially and legally encouraged to do so. Landlords who ignore crime violations face lawsuits from tenants hurt by other tenants; local, state, and federal fines based on nuisance civil laws; criminal charges; and, in some cases, loss of property. For example, laws in Rhode Island and Missouri allow tenants to break their leases if landlords refuse to evict tenants suspected of drug dealing or other illegal activities.
Landlords do not have the right to harass tenants or their employers at work for rent payments or other non-emergency reasons. Fair housing laws also prevent landlords from harassing tenants due to their sex, race, ethnicity, disability, marital status, and religion. Most states give landlords the right to control the number of people living within their rental properties, but some landlords use overzealous measures to enforce those limits, which may be considered invasion of privacy. For example, requiring tenants to register overnight guests can be considered an unreasonable invasion of privacy.
Although most state laws protect tenants’ right to privacy from landlords’ entry into their residences and business, tenants have little protection from landlords’ access to prospective tenants’ personal information. Landlords are legally encouraged to obtain information about prospective tenants through proof of identity and work status, rental applications, references, credit reports, background checks, and even casual questions. The amount of information landlords are able to obtain to identify “good tenants” is virtually unlimited, and most laws that protect personal information in both consumer and government databases allow landlords access. The Fair Credit Reporting Act and the Accurate Credit Transactions Act of 2003 give landlords legal access to tenants’ credit history. Landlords have access to a tenant’s bank account, credit history, rent payment history, student loans, and car loan payments for the past seven years. They also have access to a tenant’s conviction and, in some states, arrest history, eviction history, lawsuit participation record, and bankruptcy filings.
In most states, landlords not only have access to this information but may also charge prospective renters’ fees to do credit checks. While most states protect tenants from fraudulent credit fees, tenants need to get either written or oral notice of the purpose of the fee and will need to check their credit reports to make sure the landlord did the credit check. Landlords are granted access to such information because it is assumed that credit, criminal, and prior rental relationships will protect landlords from renting to people who are likely to fail to pay rent and who pose a danger to rental properties. Thus, landlords are allowed to refuse to rent to prospective tenants who have bad credit, criminal histories, or inadequate income to afford rent for the property. However, if landlords use information obtained in the credit history to reject prospective tenants, they are legally required to notify them of the reasons and of their right to see their credit reports.
Tenants do not have access to landlords’ or managers’ credit histories and must rely on their own research to assess the desirability of a landlord. Just as landlords have a financial incentive to check their prospective tenants’ backgrounds, a renter has an incentive to check the landlord’s background to assess the likelihood that the landlord will mismanage the property or have to sell it. Legally, tenants must assess the ability of landlords to manage their properties based on the physical condition of the facilities and by asking other tenants and neighbors about the landlord or manager.
In addition to credit checks, landlords have the right to do further background checks on prospective tenants, including checks called investigative consumer reports. These checks have become more popular due to the increasing accessibility of individuals’ personal information on the Internet. Credit bureaus may also interview friends, neighbors, and associates of prospective tenants to gain more information about their character, reputation, and living habits. Some credit-reporting companies now offer checks that reveal tenants’ medical histories, including mental institutionalization and current medical conditions; therefore, landlords can select possible tenants on the basis of their health, their sexuality, their personal habits, and other personal characteristics. In addition to criminal records reported by credit reports, landlords may access court records regarding criminal activities committed by prospective tenants, including state and Federal Bureau of Investigation (FBI) databases of sexual offenders and child molesters. Although access varies by state, most landlords have access to local registries of sex offenders to enable them to protect their rental business.
As with credit checks, landlords can use background checks to screen out what may be deemed as undesirable tenants. However, landlords must universally apply credit and background checks to all tenants or they may face discriminatory charges under fair housing laws. Thus, landlords cannot impose criminal checks based on an applicant’s race, gender, or perceived national origin. For instance, landlords cannot ask only Latino applicants about their work status, require only Arab applicants to provide proof of citizenship, or choose only single or younger applicants as subjects for background checks. This protection makes it less likely that landlords will do deeper background checks since they are unlikely to afford the expense of such checks on all tenants. In addition, landlords must notify the tenant about why they rejected their application if the rejection was based on the background check. Landlords must also file “adverse action reports,” which give reasons for rejecting applications, imposing higher deposits, or requiring cosigners on a lease. These reports are necessary only if the landlord used a credit or tenant screening service. Thus, landlords who use the Internet or do personal checks are not required to disclose why they rejected a prospective tenant.
Unfortunately, despite state laws that protect tenants’ right to privacy, violations are often very difficult to enforce. Tenants without long-term leases or rent control have few protections from landlords if they pursue lawsuits. Tenants are encouraged to document all violations in writing and to write to landlords about complaints before taking legal action. Tenants can sue landlords for trespassing, invasion of privacy, breach of implied covenant of quiet enjoyment, and infliction of emotional distress. Although it is often hard for tenants to win cases, tenants who are able to show repeated trespassing, sexual harassment, or other problems with landlords can be successful at winning both civil and criminal cases against landlords. Unfortunately, if a tenant cannot prove a breach of covenant of quiet enjoyment by the landlord, moving, which often carries a financial burden, may be the only real recourse.