Q&A: Tenant screening and immigration status
In October, Gov. Jerry Brown signed AB 60, which provides for the issuance of drivers licenses to undocumented individuals and specifically prohibits discrimination against an individual because he or she holds or presents a license issued under the new law.
Existing California law (Civil Code Section 1940.3) prohibits rental property owners and their agents from making inquiries about a tenant or applicant’s immigration and/or citizenship status. These laws raise some questions about appropriate screening practices for undocumented applicants.
When are the new licenses going to be available?
AB 60 set a deadline of Jan. 1, 2015, however, the California Department of Motor Vehicles has indicated that it expects to begin issuing them in fall 2014. Last year, legislation was passed that provided drivers licenses to a smaller group of immigrants who have work permits under a federal program.
Can I ask an applicant about his or her immigration status?
No. California law prohibits owners and managers from:
- Making any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.
- Requiring that any tenant, prospective tenant, occupant, or prospective occupant of the rental property make any statement, representation, or certification concerning his or her immigration or citizenship status.
Does the law place other limits on my ability to screen applicants who are immigrants?
The California law that prohibits inquiries into immigration status specifically states that owners may still request “information or documentation necessary to determine or verify the financial qualifications of a prospective tenant or to determine or verify the identity of a prospective tenant or prospective occupant.”
What kind of identification can I ask for?
The language of the law specifically allows landlords to request information necessary to determine or to verify an applicant’s identity. A landlord who asks applicants to provide a “government-issued” photo identification would likely not violate the law. This request allows applicants to provide such things as a passport, a foreign driver’s license, or other foreign identification, with the property owner’s goal to verify identity as opposed to immigration or citizenship status. CAA’s Application form (Form 3.0) asks the applicant to provide “government-issued” identification.
What about credit reports for applicants who do not have Social Security numbers?
If a landlord requires a Social Security number of all applicants to screen applicants for housing, individuals from other countries may be automatically excluded from the application process.
Historically, credit screening companies have required Social Security numbers from individuals to run a credit report. Today, however, this practice has changed. Most screening companies report that they have the ability to perform a credit review using other information, such as an Individual Tax Identification Number (ITIN) or a Visa, coupled with other identifying information. In light of the changes in technology, property owners should not refuse to screen individuals simply because they do not have a Social Security number.
What if the information in the credit report is insufficient, or the individual has no credit history? How do I screen the applicant?
Even if a credit company can perform a credit check of an individual when no Social Security number is provided, the information eventually obtained in the credit search may not be sufficient for a property owner to qualify an applicant.
If the information is insufficient, owners should be sure that their written screening policies include a way to evaluate these applicants, such as allowing applicants to provide additional information to prove their ability to pay, such as proof of “x” number of recent months’ paid utility bills, rent, or other regular monthly bills that show a pattern of consistent and timely payment.
Some owners’ screening policies allow applicants without a sufficient credit history to rent the home or apartment unit “with conditions.” Owners in these cases establish conditions such as a higher security deposit or a co-signor. In this case, the owner must provide the applicant with a Notice of Conditional Acceptance. See CAA Form No. 3.3. (Members only)
In the end, if the applicant is unable to demonstrate the ability to pay, the owner’s rejection would be based upon “insufficient information to evaluate creditworthiness.” The owner must provide the applicant with a written Notice of Denial. See CAA’s Forms No. 3.1 and 3.2. (Members only)