Simson L. Garfinkel
Ruth Cisneros is trapped in her apartment by a computer she has never seen.
Seven years ago, Cisneros' landlord of three months wanted her out. "I don't want you here and that's that," Cisneros said the landlord told her.
The landlord sued to have Cisneros evicted, but the judge dismissed the suit as groundless. At the end of the year, Cisneros' landlord had a change of heart and renewed the lease. The cycle repeated twice more until the building was sold in early 1987. The only real effect that the suits had was to put a notation in a private company's computer that somebody had tried unsuccessfully to get Cisneros evicted.
The problem is that nearly all of Southern California's landlords use that computer to help evaluate rental applications. If an applicant has ever been subject to legal action by a landlord, the applicant doesn't get the apartment. Often the applicant doesn't even get a phone call back.
California state law forbids companies from reporting eviction actions in which the tenant is victorious. But the owner of the computer, Harvey Saltz, says having a suit dismissed is not the same as having the tenant win. Right now, Saltz is saying that in court. Cisneros, along with eight other people, has filed suit against Saltz's Company, the UD Registry, for damages resulting from faulty reporting. The case is pending in California.
Cisneros remains trapped. She wants to move to a new apartment building four miles up the hill from her present apartment in Burbank, CA, so her 11-year-old daughter can live in a better neighborhood and go to a better school. In March 1987, Cisneros applied to live in the Promenade Apartments, a building partially constructed with Federal funds. But her application was rejected because UDR provided the Promenade with a record of the three filings against Cisneros. Even a letter from Cisneros' current landlord saying she is a model tenant wasn't enough.
California is the only state with a law that regulates tenant reporting agencies like UDR. Many tenants say the law isn't being followed. But there are now computerized tenant screening services operating in many major metropolitan areas outside California. They provide landlords with a wide range of information about applicants, including credit history, past appearances in housing court and statements by former landlords of alleged loss.
The operators of the services say they offer an indispensable tool that allows landlords to tell "good" tenants from "bad." Landlords say screening is their only defense against destructive tenants who know how to effectively use the courts to avoid paying rent. As for Cisneros, Saltz said none of her allegations are true and that nothing he has done is forbidden under state law.
"I know you have evicted tenants who had already been evicted from other locations," states one of UDR's pamphlets. "If you had asked me first I would have told you all about them and saved you that grief and lost money."
But screening services have an incentive to be sloppy and report more matches than actually exit, since the more often a company tells a landlord that a perspective renter will be a problem, the more dependent the landlords will feel on the service.
Attempts to pass legislation to regulate tenant screening services have failed in Massachusetts, Ohio and at the federal level. Regulation advocates vow they will continue to reintroduce legislation until they prevail. As for the federal Fair Credit Reporting Act --- the law that Congress passed in 1970 to stymie abuses in the credit reporting industry and give more rights to consumers --- few of its terms are applicable to tenant screening services, and the agency that polices it says the law may not even apply at all.
A tenant screening service can't say if a prospective tenant will be "good;" instead, it tells the landlord if the tenant has a history of being "bad." For $12.50, UDR will tell a landlord a tenant's credit history and report if the tenant has been evicted from an apartment within the past seven years. UDR will also report whether or not any landlord in Southern California has reported that the tenant skipped out leaving overdue rent, damages or bothered other tenants.
The search is initiated by a telephone call from a landlord. The landlord tells the UDR operator the name, social security number, driver's license number, and last known address of the applicant. Within fifteen seconds, the UDR operator has on the computer screen the applicant's credit report and eviction history and reads it back to the landlord.
"People get all of the information before they hang up the phone," said Harvey Saltz, UDR's owner.
The theory is that if a person has a history of being a problem tenant, that behavior pattern is likely to continue. Using a screening service such as UDR allows a landlord to make intelligent decisions based on information that has always been available but that, before computers, was too time consuming for landlords to obtain for themselves.
"We give the little guys access to big brother," said Neil Van Sant, co-owner of Ties Landlord Information exchange, a tenant screening service that operates in New Jersey.
"We make it easy for the small guy to get driving records, criminal records, anything you want --- as long as you have permission from the person," Van Sant said. It is illegal for Van Sant to perform a search unless the landlord who requests it has the person's signature on a release form. But Van Sant never sees that release form, since all business is transacted over the telephone.
Housing activists maintain the screening services are computerized blacklists. Some of the information that they report, such as successfully defending a rent strike in court, can only be used by a landlord to discriminate against a tenant who was exercising his or her rights.
In addition to people like Ruth Cisneros, said Judith Nishimoto-Aguilera, who is a lawyer with the Legal Aid Foundation of Los Angeles, "there is an invisible victimized class: Tenants who are immobilized from taking action against their landlords. Because you know you can be blacklisted, you don't move, don't exercise your rights."
But Saltz said tenants benefit from his service just as much as landlords do. "It's good to know that my landlord will not rent to a person who is going to come in and be a nuisance, is going to keep me up at night," he said.
Another New Jersey screening service owner said "we feel that effective tenant screening creates better profits without having to raise rents." David Covillion, who owns Eviction Data Services (Cheshire, CT), added "By pre-screening they are getting tenants who pay rent and will take care of the property."
> WHAT THEY DO
No two tenant screening services offer quite the same service or follow the same operating procedures. Indeed, that is one of the problems in attempting to regulate them. But in general, the consumer reports they compile are derived from two information sources: courthouse public records and statements by other landlords.
>Court (Eviction) Reporting
Most screening services have agents that travel to housing courts and record all landlord-tenant disputes that might result in eviction.
The Registry, a screening service which operates in the Washington, Baltimore and Philadelphia metropolitan areas, owns 13 Kaypro 2000 portable computers which its employees take into Philadelphia housing court every day to copy down the full text of the latest filings. At night, the portable computers are used to call The Registry's IBM System 38 and upload the day's eviction proceedings, according to Steven Rabbitt, the company owner.
That way, if a tenant has an eviction action filed against him on Monday, a tenant using The Registry will know about it on Tuesday, when the tenant is looking for a new place to live.
By contrast, Landlords Credit Data Services has three people who travel to the courts in Rhode Island, Connecticut, New Hampshire, Vermont and Massachusetts. The only information Landlords Credit gather is the name and town of the parties involved, the name of the courthouse and the judgment.
That means if a tenant withholds $1500 in rent because a landlord didn't provide heat, and a judge settles the dispute for $300, Landlords Credit reports a $300 judgement for the landlord.
Still another approach to information gathering is followed by Susan Singer's Apartment Owners' Information Exchange. Singer hires three people who travel from court to court in New Jersey with microfilm cameras to make perfect copies of court records. Singer stores the microfilm in her office, which has become, in effect, a repository for the text of every eviction case in New Jersey.
Collecting the information is merely the beginning of the process: one of the problems a screening service next encounters is matching names on court dockets with names of prospective tenants they are investigating. Since court records do not include the defendant's social security number or date of birth, said David Covillion, common names can lead to false matches.
Because of the possibility that a false match might result in a person unjustly being denied an apartment, Covillion requires landlords using his service to provide rejected applicants with the name and phone number of his company. "This affords a person a chance to clean up his record," Covillion said, so he can get an apartment the next time.
For a mismatch on a common name, Covillion said, it is the responsibility of the tenant to prove that he is not the same as the person in Covillion's database.
"For a common name, the landlord can request further information from the tenant. All the tenant needs to do is go to the phone company and get a bill or something to prove that they were not living there at the time," he said. "Of course, it would be up to the tenant to do that."
Even though the tenant has already lost the apartment, Covillion said, it's not the end of the world. "The turnover rate is very high. People move all the time." A person would have no problem getting another apartment, Covillion said.
That wasn't the case with Alice Arias. Arias, who lives with two of her four sons, spent eight years on a waiting list for a federally subsidized housing complex in Los Angeles. When her turn finally came, a tenancy check by UDR reported that "Alice Arias" --- a different Alice Arias --- had been evicted for nonpayment of rent.
"We have the same name and we both lived in Monebellow. I lived on Bradley. She lived on Bradeley." The other Arias, who lived with her four daughters, was evicted and ordered to pay $1400 in back rent.
Arias --- the one with the sons --- wrote a letter to UDR asking that they correct their records. "They never responded to me," she said. "I sent in my social security number, my driver license, my previous address where I had lived, and I never got a response.
From 1984 until 1986, she lived in a motel room with her possessions in public storage. She said she saw over a hundred apartments, each landlord turning her down because of the report from UDR.
Arias, 43, is disabled. The $600 a month for the motel room and the $100 a month for the public storage was more than the could afford on her $455 disability check, so the storage company sold all her belongings for the storage costs:
"I got behind one payment. They sold it for $312. They sold TVs, bedroom sets, living room sets, washer, all my appliances." She said she lost over $10,000 worth of belongings.
"All that can be replaced. But what I lost: pictures of my children since they were babies. Pictures of my father --- I was the only one who had pictures of my dad. My father has been dead for 25 years."
Arias is a common name. It is easy to see how UDR's computer could confuse two Alice Arias', both with four children, both on welfare, both living on streets with similar names. Indeed, UDR's computer is programmed to make matches even when spellings of names, streets or driver's license numbers are slightly off, Saltz said, to catch the problem tenant who slightly changes her name to avert UDR's scrutiny. It also catches the typographical errors Saltz's workers make when they type the information in the courthouse.
"There's 94 Smiths, all David, and there's no way to tell them apart," said Michael Fortini of Landlords Credit Data Services. "But they'll nail me if I make a mistake."
Michael Fortini was surprised to learn that there was another Michael Fortini living four blocks up the street from him in Pawtucket, he said. "Fortini isn't a common name. I never knew he was there." Presumably, the two Machael Fortinis have different social security numbers. But when Fortini gets a name from a court record or from a newspaper, he doesn't get the social security number --- just the name.
Landlords Credit Data Services lists two Paul Johnsons, neither with a social security number. It also lists two Patricia Johnsons and four Richard Johnsons. To figure out who is who requires additional information --- information that may not be available --- resulting in occasional mismatches.
If Fortini is not positive about a match, he said, he will tell the landlord of the uncertainty. Then it is up to the landlord to decide what to do.
> ...minimal regulation...
Operators of screening services maintain that they have a right to obtain and report court records because they are public information. The only federal regulation on the subject is the Fair Credit Reporting Act, which requires that consumer reporting agencies engaged in public record reporting make an effort to ensure their information is "complete and up to date." Alternatively, the reporting agency is allowed to report out-of-date information if the consumer who is the subject of the report is notified when the report is made.
The exception is California, where state law prohibits screening services from reporting eviction hearings in which the tenant is victorious. One of the main contentions of the suit filed against UDR is that it has ignored this law. Three owners of screening services across the country who know Saltz and did not wish to be quoted said the allegations are correct. "UDR is a boiler room operation. There's no standard procedure," said one screening service operator in an East coast state. Saltz will continue to report the filings of cases which are settled in the tenant's favor, the operator said, because that second bit of information is never entered into his computer --- the data gatherers in the court house do not type it into their portable computers.
No other state regulates tenant reporting. In the absence of regulation, different businesses have developed different standards. Apartment Owners Information Exchange reports all court cases involving the tenant, said Singer. In cases where the tenant was victorious, she said, she will notify the landlord of an unsuccessful tenancy action. "I will recommend that they talk to the tenant about this." She said a failed eviction action shouldn't be grounds for denying an apartment to a tenant. "Now if the person has really bad credit on top of this, they are not going to rent to them," she said.
Paul Lee, a lawyer with the Legal Aid Foundation of Los Angeles who is part of the litigation team in the UDR suit, disagrees: "Once a landlord hears that another landlord had an eviction action filed against [the applicant], they don't want to hear anything else. They don't care if it was meritorious or not. They just don't rent to you."
Even if a tenant did lose an eviction hearing, that may not mean that he or she is a bad tenant. Tenancy can be lost for a variety of reasons that might have nothing to do with their desirability as tenants, said Frank Brodhead, a staff member of the Philadelphia Tenant Action Group who has worked on the question of tenant screening services:
"Roughly a third to a half of all cases brought are default judgements. The tenant didn't appear: they arrived a few minutes late, they overslept, they were sick in the hospital or had children problems, or they had already moved out and believed the problem was settled," Brodhead said.
In other cases, Brodhead said, "a tenant will pay a back rent after receiving a court summons. And the landlord will say 'Don't bother coming to court, I'll take care of it' and then fail to withdraw the case." Landlords often bring multiple cases to court at a time, he said, and sometimes they forget to withdraw the cases that have already been settled.
In these kinds of cases, Brodhead said, the court will list the tenant as having lost the eviction hearing by reason of default. A computerized screening service would report that the tenant was evicted.
"It's easier for the tenant screening service to list the tenant as a bad risk than it is for the normal credit bureau," Brodhead said, because of default judgements and "because the records of court mean different things to a credit bureau and the computer screening people."
"Our assumption is that a landlord would not ordinarily enquire into the circumstance of how a tenant got a judgement against him in court," he said. The mere fact that the tenant was evicted would be grounds to deny the apartment.
And sometimes the courts provide the screening services with inaccurate information. Singer tells of a tenant who had been listed by the court with an outstanding warrant for failure to pay damages. "The guy called up screaming," Singer said, after the landlord refused him the apartment and gave the tenant the phone number of Apartment Owners Information Exchange.
The man had paid the money, she said, but the court had not updated the files. Screening services thus increase the damage done by clerical mistakes in the courthouse repeating them to the people who are most likely to act upon the information.
> The fly-by-night file
Many screening services maintain a file of "fly-by-night" tenants who have allegedly caused problems or financial loss to landlords who subscribe to the service. The idea is that if a tenant causes loss to one landlord, that tenant's name will be in the computer and other landlords who subscribe to the service will be "protected." In the majority of these instances, no court records or written documentation is available. The information in the computer is simply the word of the former landlord.
RentCheck, headquartered in Denver, Co, operates a national fly-by-night file. "The irresponsible tenant in San Jose who skips to Sacramento is as liable to be turned down there as he is in Philadelphia --- or Portland --- or Detroit --- or anyplace else," states RentCheck's brochure.
RentCheck's data comes from two sources: landlord's reports of financial loss and the TeleCheck (RentCheck's parent company) database of bounced checks. RentCheck, like UDR, provides easy-to-fill-out forms for landlords to report losses. "Lifestyle problems --- such as loud stereo playing martial spats, noisy children, untrained pets --- are never entered into the data base," RentCheck brochure states.
Larry O'Neill, a spokesman for RentCheck, said his company has more fly-by-night records than any other screening service. Like many screening services contacted for this report, O'Neill declined to say how many actual records were in the database or how many look ups his company does in a month.
"What does a negative code mean?" asks RentCheck's brochure for landlords. "It means that your applicant has caused financial loss to one of the subscribers in our system. It means that he can find out who, when, and how much. And it means he can then go back and clear his name by paying what he owes."
When the landlord notifies RentCheck that the delinquent tenant has paid what he owes, the tenant's name is purged from the database. Therefore, O'Neill said, the only names in the database are names that have a reason for being there. "Our system is based entirely on the fact that somebody owes a landlord money. He has to owe them money and they haven't been able to collect it."
But a negative code from RentCheck doesn't mean that the applicant had caused a financial loss; it merely means that one of RentCheck's subscribers reported a loss. With TeleCheck, RentCheck's parent company's system for reporting individuals who have bounced checks, there is an undeniable fact to report: the person wrote a check with insufficient funds in the account to cover it. There is paper proof of the fact --- the bounced check.
But RentCheck makes no attempt to verify reports from subscribers --- landlord's don't even have to provide photocopies of receipts for alleged repairs. No mechanism guarantees that a landlord's loss was as large as claimed or that it even happened.
Harvey Saltz said UDR won't take a fly-by-night report unless it is verified with facts. Saying that a tenant left an apartment a mess isn't factual; saying that a tenant left $300 in damages is. But Saltz doesn't require any proof beyond the landlord's signature.
And while in some states, such as California, a tenant may not be held liable for normal wear-and-tear on the on the apartment, the fly-by-night file cannot by its very nature make provision for landlords who claim more then they may be entitled to.
"If I am a landlord and I say that you put holes in the rug and I had to spend $300 to repair the rug, how can anyone prove that you didn't put the holes in the rug? UDR doesn't even require me to send an invoice. Even if they went out there and saw the carpet, that still doesn't prove that it was damaged by you," said Mary Lee, an attorney at the Western Center on Law and Poverty who has studied tenant screening services.
Like eviction reporting, every screening service that runs a fly-by-night file seems to have a different set of rules governing how it operates:
* Apartment Owners Information Exchange maintains a fly-by-night file, but Singer said she won't put a tenant in the file unless the tenant signs a release. Singer's landlords require that the release be signed when the apartment's lease is.
"There is a very fine line between blacklisting someone and public information," Singer said. "You have to be very careful. I can report the facts. I can't editorialize at all."
* General Data Systems (Closter, NJ) runs a fly-by-night file with a twist: when an applicant for a new apartment is discovered that owes money to another General Data landlord, the company informs the original landlord of the location of the applicant. Stuart Abrams, the owner of the company, calls this service "skip-tracing." It's one of the services that sets General Data apart from the other screening services.
Abrams said that his skip-trace file isn't subject to the Fair Credit Reporting Act since he doesn't give the information out. "I am not a credit bureau. I will tell the old landlord where to find the tenant, but I will not tell the new landlord what the negative data is," he said.
"But I will say that there is negative information," Abrams added.
Abrams, whose General Data Systems is also a RentCheck franchise, said he will not forward an item to RentCheck's fly-by-night file without proof such as a photocopy of a judgement from a court or a photocopy of a receipt for repairs. "I think the only information that we should report is information that has been found by a court," he said. But RentCheck itself does not have such standards.
Most fly-by-night file operators claim they will remove a tenant's record when the tenant "clears up the problem" by paying the former landlord, or after seven years, as they claim is required by the Fair Credit Reporting Act.
Fly-by-night files can list good tenants too, although UDR is the only screening service discovered during the investigation of this article that solicits them. But Saltz is unique: he is trying to build a file of every apartment renter in California, rather than just the "bad" ones.
The favorable report is a kind of reward for being a good tenant in that it makes it easier to rent future apartments, Saltz said. About 80 percent of the tenancy reports UDR gets are for good tenants.
> worth the money?
The screening services stress that they should be used in addition to, rather than in place of, a landlord's standing screening procedure. "It's not uncommon for us to get a good tenant record on somebody who has previously been evicted somewhere else," said Saltz.
When asked why a landlord would have rented to a tenant that UDR listed as being previously evicted, he said: "Maybe they just explained the circumstances and the landlord rented to them. Maybe the landlord didn't check it out to begin with."
But many landlords in California trust UDR blindly. Ruth Cisneros was informed when she wanted to move into a new apartment that any eviction actions listed with UDR was sufficient grounds to have her application rejected. Even a letter from her current landlord stating that she was an ideal tenant wasn't good enough for the Promenade Apartments.
And the Promenade Apartments in by no means unique. Nearly 90 percent of the landlords in California use UDR. "All these new big management places go by the UDR. They stick with the UDR no matter what. That UDR is just a big scam," Cisneros said.
> still more information
The more databases a screening company can search, the more marketable the product is. Thus marketing and competitive pressures will force screening services to provide increasingly detailed pictures of tenant applicants as time goes on.
In October 1986, a woman in a Rhode Island apartment was attacked by another tenant, dragged from her apartment door at knife-point and repeatedly raped and stabbed. She finally escaped by jumping from her attacker's third floor balcony. The victim is now suing the management company of the building, saying that they failed to adequately check the background of her attacker.
Leo San Souci of Landlords Credit Data Service of America (Pawtucket, R.I.) has a photocopy of a newspaper article describing the lawsuit. "If these people had been using our service," San Souci said, "this would never have happened."
Landlord Credit Data Service maintains a database of every name that has appeared in a New England newspaper in connection with a violent crime. The woman's attacker, who had an extensive criminal record including two rapes and child molestation, is in Landlord Credit's database. If the Boyer Realty Management company had used Landlord Credit's service, San Souci said, they never would have rented to the attacker.
San Souci said he runs his business as a service to the "Mom and pop landlords" who rent out rooms in their houses and other tenants who live apartment buildings. He said he is trying to protect them from people with a history of violent crime. His newspaper clipping service doesn't cost him a lot to provide and it increases the value of the product he offers.
Steven Rabbitt said his screening system, The Registry (which operates in Washington, Baltimore and Philadelphia) has a special procedure that it follows after rejecting a tenant. "If a client makes an enquiry on John Smith, and John Smith is denied, we'll keep that information," in a special file which is subject to a high degree of scrutiny, Rabbitt said. If another landlord calls up asking about a tenant with a similar name, address or social security number, "chances are we are still going to catch the case," he said.
Thus, once a tenant gets rejected from one landlord using the Registry's system, that tenant is likely to be rejected from all other landlords using the system, even if he changes parts of his name or his social security number, because the computer is looking extra hard for him. Rabbitt said the landlords of nearly 90 percent of the units in the Washington D.C. metropolitan area screen their tenants using his system.
The more incriminating a database is, the more attractive it will be to landlords who want to know everything about their tenants before they sign a lease.
Paul Lee, a lawyer in the suit against UDR, said he has proof that UDR includes information such as number and frequency of visitors of the opposite sex, suspected drug use and if a tenant was represented by the Legal Aid Foundation at an eviction hearing, as part of its standard report.
UDR denies the allegations, but other services have admitted to keeping such information, saying that it is the only way to keep problem tenants out of the rental housing market.
In 1979, the Garland Apartment Owners Association in Texas started to keep a list of problem tenants. By 1982 the file had grown to 10,000 file cards. If a plumber spotted drugs in an apartment while on a service call, the manager of the Meadowlark Apartments in Garland told a Dallas Times Herald reporter in 1982, that person's name would be added to the list. "I've made up several cards like that," Claudette Reed said at the time. "We're really down on drug use."
The Garland list has not operated for the past two years, Ms. Reed said recently. Because it was a manual system, it eventually became to cumbersome to operate. There is also less incentive to use the system now, she said, because the rental market in Garland is so soft. But if the market tightened up, the original incentives to use the system would return.
The owner of one screening service said he occasionally telephoned friends who worked in police departments around the country to check for arrest records on apartment applicants. The owner, who asked that his name not be used, said that personal connections were important when checking out-of-state applicants.
> WHO ARE THEY HOUNDING?
Covillion said one of the primary purposes of screening services is to protect landlords from tenants who exploit the warrant of habitability to their advantage:
"They get to know the law real well," he said. "A tenant moves into an apartment. They know that if things aren't right they can get away with not paying rent, so they will break things."
"Our system is designed to catch the repeated offenders. The people who know how to use the law to break the law," Covillion said.
Other operators back up Covillion's claims:
"We are dealing with people who are repeat offenders. They go from property to property. They are habitual late payers. they in effect pay no rent, live rent free," said Rabbitt from the Registry.
Rabbitt said the majority of the names in his database are listed several times for multiple eviction hearings. Nevertheless, people who have only had a single eviction action filed against are reported to landlords just as diligently as Rabbitt's "repeat offenders."
If a tenant withholds rent under the warrantee of habitability --- a legal concept that tenants do not have to pay rent for substandard housing --- and a landlord files for an eviction, the record will be picked up by a screening service.
"My assumption is that if a landlord knew that a tenant knew enough about their rights to raise the warrantee around an issue of repairs or services, this in itself would be grounds to exclude the tenant, because they know too much," said Frank Brodhead at Philadelphia Tenant Action Group.
Phyllis Salowe-kaye, president of the New Jersey Tenants Association, added: "The tenant is basically penalized for exercising their rights. It's not a credit check; it's an organization check."
Neil Rynston is a musician who lives on New York's Upper West Side. Last year, after several attempts, he organized a rent strike in his apartment building. Rynston said that if tenant screening services were known to be operating in New York, he probably wouldn't have been able to mobilize his fellow tenants.
> IT ALL STARTS WITH A PHONE CALL
The phone rings at Landlords Credit. On the other end, a landlord says that she has an applicant for an apartment. The person will be using the government's section 8 program to pay a portion of the rent. He's just moved to Rhode Island from Florida, the landlord says, and gives San Souci the applicant's name, previous address in Florida, driver's license number and social security number.
Asked if he needs any more information, San Souci laughs. "Driver's license number. That's all I need."
"I'm going to know more about that fellow in 48 hours than he knows about himself," San Souci says.
For Landlords Credit, the driver's license number is the key to verifying an application with missing or questionable information. Driver's License records are public information. For a nominal fee, any state registry of motor vehicles will provide the current address and change-of-addresses for the past three years of any licensed driver.
If the applicant spells his name differently on the application and on his driver's license, that's grounds for looking further into the history. Or simply rejecting the application.
If the applicant does not mention one of his previous addresses, that's grounds for an in-depth probe of that address. Or, again, simply rejecting the application.
Landlords Credit Data Service is unlike most other screening services. If it finds a discrepancy between the tenant's application and what the background check reveals, its investigators will attempt to contact the applicant and get his side of the story before reporting back to the landlord. Sometimes.
Fortini, Landlords Credit's owner, said he started this practice in 1985 after he was the subject of a CBS 60 Minutes documentary. During the program, reporters hounded Fortini for not calling applicants when negative data was discovered. "I'm gun-shy now," he said
The total cost for the search is $10 to $30, depending on the service. "You can have the tenant pay, so it really doesn't matter what you charge," said Van Sant of Ties Landlord Information Exchange. Many screening services recommend that landlords pass along the cost of the search to the tenant in the form of an "application fee."
> WHAT YOU DON'T KNOW CAN HURT YOU
In theory, a landlord is required by the screening services to report the name and how to contact a screening service if the service was responsible for the application being rejected. But in practice there is no way to enforce this requirement.
"Contracting rental properties is done person to person or over the phone," said Mary Lee at the Western Center on Law and Poverty.
"There is no guarantee that landlords will use the kind of forms and notification procedures that UDR provides and that California law requires," she said. "There is no penalty or mechanism to regulate landlords in as pervasive a way as credit agencies or creditors are regulated."
Alice Arias searched for an apartment for two years. She said she saw over a hundred apartments, but only once was she told that she was being rejected because of UDR's negative report. Everywhere else, "They were saying that the apartment was given to somebody else." The story is a common one.
In California, the law specifies a penalty for landlords who do not report that a report from a tenant screening service is responsible for denial of tenancy. But, Lee said, "it would be incumbent on the victim to find out what happened, prove it, go after [the landlord] in court and win. It puts the burden on the victim."
A person who is rejected from an apartment has no way of knowing if the person who was accepted got in because of a better screening service report or merely because of a landlord's whim.
"Paperwork is optional. Therefore, when you go to prove or disprove that something happened, it's very difficult because there is no paper trail," Lee said. "Most victims do not have the time or money to pursue such avenues of retribution."
Most victims don't even know that they are victims.
Nearly all tenant screening services contacted for this article refused to divulge the number of records in their database and the number of landlords or apartment units that are using them. Owners claim this information is "confidential," or "classified," yet these numbers are needed to determine the impact that screening services have had.
Landlord Reports Computer Service, Springfield, Mass, claims to perform court reporting for all of Massachusetts, Hartford Connecticut, and part of New Hampshire and Vermont. Paul Jenney, the owner, says he has 200,000 records in his database and services more then 700 clients, but he won't reveal how many names he looks up a year. "That's confidential information," he said.
Keeping such numbers confidential limits public accountability. "No one knows what he's doing. That's why it scares tenants," said Don LaLiberte, a former president of the Massachusetts Tenant's Organization. Both housing advocates and screening service operators admit that when a prospective tenant sees a screening service's name at the bottom of a rental application, the tenant frequently does not understand the role that the service plays in the process.
Outcries over abuses among the national credit reporting agencies in the 1950s and 60s led Congress to the pass the Fair Credit Reporting Act in 1970. The FCRA gave consumers a number of specific rights when dealing with consumer reporting agencies, including:
* The right to determine the existence of a file.
* The right to be told of file's contents and the source of the information. (Information in the file which is the result of investigative operations is exempt from the source reporting requirement.)
* The right to be told who received the report within the past six months.
* The right to protest information in the report and force the company to reinvestigate a credit history.
* The right for the consumer to insert a statement in the file on any points of disagreement with the consumer reporting agency that remain after reinvestigation.
Under the FCRA, credit reports may be furnished on a consumer without that person's permission provided that request arises out of a credit transaction, a job application, for insurance, for a license, or a "legitimate business need." Medical records are also exempt from the FCRA's terms.
The FCRA prohibits the reporting of "obsolete" information, which it defines as bankruptcies more then 10 years old, and lawsuits, paid liens, accounts placed for collection, arrests, convictions, or any other adverse information more then seven years old. The prohibition on reporting obsolete information is not observed if the credit report is intended to be used with a credit transaction of $50,000 or more, life insurance for $50,000 or more, or employment for $20,000 or more annually.
According to David Grimes, an attorney with the division of credit practices at the Federal Trade Commission since 1973, the FTC hasn't taken a position on whether or not tenant screening services are subject to the FCRA.
"The staff is reexamining the issue at this point. I'm not sure what our view would be on it. It's rather difficult to construe the act, really," Grimes said.
"The act doesn't specifically address the tenant screening services. We're not aware of any case law which decides the issue either," he said. The suit of Cisneros vs. UDR isn't likely to settle the question, since it is being argued in a state court under the California Consumer Credit Reporting Agencies Act.
Nevertheless, nearly every tenant screening service operator contacted for this article said that they are subject to the FCRA's terms. Harvey Saltz said he was sure that one day he would be required to abide by its terms, so when he set up his business in 1976, he followed the rules.
Even David Covillion, who insists that the FCRA does not cover eviction records, said he follows the law's terms as if they did apply. He said the business practices outlined in the law protect him and makes his service fairer to tenants. "We conduct our business as if [we were subject]. It's too easy to make a mistake," he said. "It's too easy for something to go wrong."
But even those companies that say they follow the terms of FCRA do not follow the law to the letter. UDR, like other screening services, gives only a post office box as a mailing address: only written inquiries for copies of files are processed. The FCRA provides for visual inspection. Attorneys for Ruth Cisneros and Alice Arias say UDR sends different reports to tenants than it gives by the telephone to landlords. Saltz said he doesn't. Without visual inspection, there is no way to know for sure.
Susan Singer of Apartment Owners Information Exchange doesn't provide for visual inspection either: she said that it is the obligation of the landlord to provide a tenant with a copy of a negative report. After she reports the initial findings of an eviction check and credit report to the landlord by telephone, she sends the credit report and the docket number (if any) to the landlord. "I don't send copies to the people," she said. "That's for the landlord to do."
If there was a disagreement between what a tenant thinks happened and what her report states, she said, "I would give them the docket number and say call the court." Singer's computer system doesn't have a provision for storing statements by disgruntled tenants: it only stores the name, address, and docket number of each court case.
UDR gets between 100 and 200 requests a month from tenants who want to see their records, Saltz said. Since he as been in business, he said, he has changed fewer then five records after reinvestigation. Saltz says he is reporting what the court ruled about the tenant, not the actual argument between the landlord and the tenant. "If they dispute, we say we can't retry the case," Saltz said, and he lets the court's judgement stand.
> NATIONAL ORGANIZATION
The National Association of Screening Agencies was founded in early 1986. It consists of 13 services. Its membership met twice in 1987.
One of the goals of the NASA, said to Diana Smith, who owns Renter Index (Dallas, TX) and is the association's president, was to establish a uniform code of ethics for the industry. NASA's code of ethics is that its member organizations follow the Fair Credit Reporting Act.
Other goals of the national association include arranging for group discounts for purchases of credit reports and sharing fly-by-night files between members. A pamphlet published by the organization says NASA is "a regulatory body to establish and enforce industry standards." So far, no mechanism is in place or in planning to perform that function.
One of the biggest problems that Smith has had as president of NASA is finding other screening services. Most screening services are only known to their clients and the tenants that they reject. Smith said that she sent a letter to every regional apartment association asking that they send it to any screening service they knew of.
"Obviously, we didn't contact everybody," Smith said.
Some of the screening services that Smith didn't contact happened to be direct competitors to association members:
* TCI Data, also in Dallas, which covers the same area as Smith's Renter Index, was not notified of the trade association.
* In New Jersey, Ties Landlord Information Exchange is a member, but the owners of Apartment Owners Information Exchange, General Data, and Eviction Data Systems said that they had never heard of the organization.
* Landlord Reports Computer Service, in Springfield, MA, which covers Massachusetts, parts of Connecticut, New Hampshire and Vermont is a member, but Landlords Credit Data Service of America, which overlaps Landlord Reports in two states was not informed of the association's creation.
"There is no publicity problem," said UDR's Harvey Saltz, one of NASA's founders. Saltz said that the organization has only been around for a year and that there is a limit to how many other screening services could be contacted in that time.
If the members of NASA do begin to share their fly-by-night files, then the reason for the organization's less-then-perfect publicity campaign seem clear: members of NASA would have a competitive edge in the regions where they were not the sole tenant screening service. Why tell your competitor about a good thing?
> OUTLOOK FOR THE FUTURE
The larger tenant screening services are now expanding into new areas. UDR is moving into Northern California, Saltz said. Likewise, the Registry has just introduced its service in Philadelphia.
Some states, such as New Jersey, are particularly conducive to tenant screening services. In New Jersey, all landlord-tenant actions must be filed in one of 21 county courts, limiting the legwork involved in finding the cases.
"We have records on every renter in the state," said David Covillion of Eviction Data Systems. "If they ever got evicted or a court action brought against them, they are in our file."
Other areas, such as New York City, may have to wait for closer cooperation between the courts and the screening service operators before the services become commonplace. In New York, the sheer number of court cases --- 400,000 eviction filings a year --- has deterred entrepreneurs until now. But as the city computerizes its eviction records, the possibility arises that a screening service might be able to simply purchase a tape with every court record on it, eliminating the need to hire people to retype each case. One way to prevent this kind if use of the database would be to charge a set cost per database record with no bulk discounts.
Justice Israel Rubin, who is heading the court's computerization effort, said such tapes will never be made available to screening services. But David Covillion said Eviction Data Systems will sue if necessary to get the tapes. "He has no choice. The Public Information Act protects us on that," Covillion said. "He has to make records available in a form convenient to use without putting undue expense to the taxpayer." Covillion said that there are precedents in California to support his claims.
"I know a couple of people who have tried to go and get information from the courthouses and they have not been cooperative," said UDR's Harvey Saltz. Saltz said he expects that tenant screening services will eventually operate in New York.
The major tenant screening services have been periodically subject to bouts of negative publicity from the media. Both CBS's 60 Minutes and PBS's Frontline did documentaries describing the screening services as tenant blacklists.
"The bad publicity we have had actually helps our business," Saltz said. "I would be afraid if it disappeared."
"It's actually a matter of choosing up sides. You have landlords and tenants, and they don't get along. If a new article says that this guy is against tenants and for landlords, they say yea for him," Saltz said. "We get a lot of publicity and advertisements we couldn't begin to pay for."
Singer said that the publicity has given tenants a misunderstanding of what function the screening companies serve:
"When I go to court and meet the public, they all have bad attitudes. They say it sounds like we are blacklisting people --- that we are doing something terrible.
"And I say no. Landlords want to rent; they don't want vacant apartments. But at the same time, they don't want someone in there that is going to destroy the property."
> BUSINESS ETHICS
Without regulation, competitive pressures between screening services will result with more and more information being made part of the records, said Woody Wilson, editor of Shelterforce, a magazine that specializes in housing issues. A service that includes the names of tenants who call city agencies responsible for housing code enforcement is more valuable then one without such information. Likewise, a service which lists membership in tenant associations has an added value. No regulation prevents a tenant screening service from reporting such information if it is lawfully obtained.
One of the reasons that General Data does not engage in court reporting or enter problem tenants into the fly-by-night file without photocopied documentation, said Stewart Abrams, is that tenant screening is not General Data's main business. Instead, the company's primary business is selling computer systems and services to property owners. "To help out clients we took on this additional service," he said, adding that he is very careful not to violate the rights of tenants. General Data can afford to be careful, since it's main source of revenue isn't screening.
Companies whose sole business is providing the screening service have not been so judicious. Diana Smith said Renter Index didn't report eviction filings for the first 14 years of its business. "I had a problem with that for a long time. I felt the filings were more in the line of accusations." But, she said, she has started offering the service within the past year. Renter Index faces strong competitive pressure from TCI data in Texas.
Regulation that makes a distinction between what sorts of public information a screening service may and may not report might not be the solution either. That's what the Cisneros vs. UDR lawsuit is about: Cisneros maintains that UDR is reporting information that is forbidden under the California statute. UDR said an eviction action that is withdrawn by the landlord is not the same as on that is settled in the tenant's favor, and thus is fair game.
But the California statute is nearly unenforceable. Unless an attorney general subpoenas UDR's computers and inspects every record, there is no way to be sure that the company hasn't been violating the law by reporting more information then it is allowed to. So far, the Legal Aid Foundation of Los Angeles hasn't received any help from the attorney general's office in enforcing the California Law.
"UDR takes every single court action," said Stewart Abrams, owner of General Data. Abrams said UDR even takes the court actions in which the tenant is victorious. "Most landlords would not want to rent to somebody if an eviction is pending or if the tenant was correct." A tenant that fought an eviction action and won is potentially more dangerous to a landlord than one that was evicted. Another screening service operator, who asked that his name not be used, said UDR has no provisions for removing eviction filings from their database in the cases that the tenant is victorious. He said UDR doesn't even try.
One of the problems in attempting to regulate tenant screening services at the state or local level is that many people do not know of their existence. At least four screening services are now poised to enter the New York market, but not a single New York city or state official contacted for this article --- even those who specialize in tenant's rights issues --- said that they had ever heard of such businesses. Evidently, the free advertising from 60 Minutes and Frontline wasn't successful in the Big Apple.
Once a screening service becomes established, it becomes a special interest --- with a powerful client base behind it --- which lobbies against regulation. Paul Jenney of Landlord Reports Computer Service in Massachusetts spent most of December 1987 heavily lobbying against a bill that would have regulated his business. Jenney had a following of landlords in Springfield who lent him their support and a legislator who was behind him. Although the bill was reported favorably out committee, it failed to pass the state legislature in a tie vote.
Some tenant screening service operators are in favor of regulation that would limit the number of years back into a tenant's history they could report. In many cases, however, the concern is based as much upon technical considerations as upon humanitarian ones:
Susan Singer, president of the Apartment Owners Information Exchange in Plainfield, NJ, wants the number of years limited to between three and five. Five years, she said, is the maximum number her semiautomatic computer-and-microfilm system can handle.
Likewise, David Covillion said Eviction Data Systems only keeps court records going back four years because that is the limit of the storage space available on his computer. Covillion said running out of space is one of the reasons that Eviction Data Systems is about to upgrade his computer, but that he still has no intention of storing more than four years. "Even if we could, I wouldn't," he said. When a person knows that a successful eviction is on the record for seven years, "it takes any initiative away for a person to change," he said.
There are currently two legislative efforts to regulate tenant screening services: One in Congress, the other in Massachusetts.
In May 1985, Congressmen Charles Schumer (D-NY) introduced a bill to amend the Fair Credit Reporting act to make it more applicable to tenant screening services. The bill never passed, but an aide to Schumer said that the bill will be reintroduced in February 1988.
If passed, Schumer's bill will make tenant screening services subject to the terms of the FCRA. Additionally, it will forbid services from reporting:
* If a consumer is or has been a member or involved in any tenants organization or other activity on behalf of tenants.
* If a consumer ever notified a state or local agency about a landlord's safety or sanitation violation.
* If a tenant ever requested maintenance for a property.
* If a tenant withheld rent, provided that the action was lawful and carried out in accordance with legal procedures.
* If a tenant was a prevailing party in a court action.
* Any court actions more then one year old.
Although Schumer's bill will not prevent the reporting of eviction filings, it may prevent some services from reporting why a landlord has filed for an eviction.
The Massachusetts bill is a copy of the one that failed by a tie vote at the end of 1987. Its provisions are the same as Schumer's, except that it only allows consumer reporting agencies to report successful evictions ---- eviction filings and cases in which the tenant is victorious are barred. The bill requires that the screening service mail a copy of any report that a landlord requests directly to the tenant.
Neither of the bills proposed would restrict the growing use of fly-by-night files or require stricter documentation standards.
Housing is not a right in the United States. Landlords are not allowed to discriminate on the basis of race, religion, or similar factors, but a landlord cannot be compelled to accept a tenant that is simply disliked. Landlords rent apartments to make money: screening services help landlords by screening out people with a history of being problem tenants. Unfortunately, some innocent people get screened out in the process.
Michael Fortini said if every landlord in the United States used his service, there wouldn't be any more problem tenants: fear of homelessness would keep them in line, keep them from destroying their apartments, keep them paying their bills.
But unless courts begin to provide identifying information --- such as social security number or date of birth --- on their records, the risk of mismatch will remain present, especially for common names. The prevalence of common names among certain minority communities means that these people will be subject to a higher incidence of mismatch. Already, tenant screening services represent powerful new tools for discrimination, since a landlord is free to apply screening service information inequitably between races and ethnicities.
More likely, in Fortini's world where all the landlords use his service problem tenants will engage in even more fraud and trickery to get apartments. This might cause the incidence of mismatch to increase as the pressure increases for screening services to find "close matches" instead of "perfect matches."
Clearly, landlords have a right to know the rental history of applicants for an apartment. But equally clearly, many landlords might be hesitant to rent to a tenant who had a history of being in housing court, for whatever the reason. Even if the matching system is perfect, it is not necessarily fair.
Suggestions that the state limit the right or ability of a private company to report public information challenges the very basis of our notions of a free and open society. But part of the decision making process that originally made eviction filings public information included a calculation of the difficulty involved in looking up the eviction history of a particular individual. The advent of computerized tenant screening services changes that calculation.
When databanks containing millions of names can be searched in a matter of seconds, when they can be duplicated and transmitted to third parties uninvolved with their collection for uses which they were not originally intended, the very notion of "public information" needs to be reevaluated.
Ultimately, the advent of tenant screening services is traceable to a widespread shortage of affordable rental housing in this country. As Texas shows, when the housing market goes "soft," there is more pressure on a landlord to simply find a tenant, rather than a perfect one.
In the absence of housing reform, basic regulation of tenant screening services is needed in order to prevent discrimination of innocent parties. Consumer reporting agencies should be barred from reporting eviction filings, since they often amount of unsubstantiated accusations. Likewise, information regarding membership in tenants organizations or calls for maintenance should not be allowed in the database.
Tenant screening services should be required to provide their databases --- minus identifying information --- upon request to interested parties at the cost of duplication, in order to allow the contents to be checked for compliance with the law. They should be required to make public disclosures regarding the size of their databases, the number and size of their clients, and the frequency of database searches.
The computers that maintain the database should automatically send a letter to a person whenever a record on them is entered into the database and whenever their name is searched upon. Information in the database should be expunged after three years. And the fly-by-night files, since they are another form of undocumented accusation, should be abolished.
Lastly, landlords and screening service operators should be both civilly and criminally liable for misuse of the data in their systems. Operators should be liable for reporting errors.
The experience of Massachusetts shows that if lawmakers wait for tenant screening services to become a problem before attempting to regulate them, the services will build a powerful constituency, which can effectively prevent the passage of regulation. In the absence of nationwide regulation, the state legislatures must act, and they must act now.