Landlords are often contacted to give references about former tenants. What a landlord says here can have legal ramifications, especially if the former tenant’s application is denied.
Can Landlords Be Sued for Comments On Past Tenants?
Landlords can be sued for slander or libel when commenting on a previous tenant. However, this requires that the statements made be false and proven to cause harm to the prospective tenant—which in this case would be to deny housing or require a higher deposit or monthly rent payment.
However, the previous landlord is generally protected from discrimination suits as they’re not the ones that would be denying the applicant. If a landlord denies an application, and the tenant finds out that the previous landlord mentioned something that falls under a protected class, the landlord that rejected their application could be sued for discrimination.
Why Reach Out to a Previous Landlord?
All landlords’ main goal during the applicant screening process is to find the perfect tenant. These are usually people who:
- Are responsible, communicative, and pay rent in full and on-time each month
- Stay for a long time
During the screening process, a good landlord will call personal references and employers. Those two groups can give some excellent insight into personal character, income, and job stability.
However, it’s also equally important to call their previous/current landlord. That’s because they are the ones with first-hand experience about whether your applicant was a model tenant or if they were a massive headache.
They are the ones who know if your applicant:
- Vacated without notice
- Broke lease rules
- Acted belligerent or difficult
- Ignored maintenance issues
- Paid rent late, in installments, or tried to beg/plead each month for leniency
Some landlords will rely solely on tenant screening reports to make a determination about an applicant. However, those reports only contain reported information, and nothing about the applicant’s personal interaction and behavior with previous landlords. Use both official reporting and gathered information from references to make renting decisions.
Low-quality tenants cost landlords money, as they are more likely to need to be evicted down the road. Evictions cost an average of $3,500 to $10,000.
If your tenant leaves without notice or you decide not to renew the lease, each month of vacancy will cost an average of just over $2,000—the average rent in the U.S.
These costs can destroy any gains made from monthly cash flow, even to the point of causing a property owner to sell. That’s why it’s best practice for all landlords to contact an applicant’s previous landlords.
What Can a Landlord Say About a Previous Tenant?
Landlords are well within their right to give a bad review of a previous tenant. Many landlords are terrified to speak negatively in fear of legal retribution, but they are generally protected as long as they tell the truth and stick to relevant facts.
Some property management companies have blanket policies against talking about previous tenants. Perhaps they’ll confirm an address and dates, but will decline to comment on anything else.
However, there is no legal reason that prevents a previous landlord from answering a number of questions truthfully. Here is a list of common questions to ask a previous landlord that they can generally answer without fear of reprisal:
- Can you confirm that [applicant] rented from you?
- What dates did [applicant] rent from you?
- Did [applicant] pay their rent on time and in full each month?
- Did [applicant] take reasonable care of the property?
- Did [applicant] give you proper notice before vacating?
- In what condition did [applicant] leave the property upon vacating?
- Was [applicant] disruptive to the neighborhood?
- Did [applicant] follow your lease agreement?
- Painting walls
- Installing fixtures
- Burning candles indoors
- Avoiding lawncare or landscaping duties
- Did [applicant] have any pets (not including service animals)?
- Did [applicant] smoke on your property?
The main thing to be careful of here is that the previous tenant should only stick to provable facts.
Also, most states have privacy laws that require landlords to have permission to reach out to a former landlord about a tenant. Be sure to get your prospective tenant’s consent before doing so, and then let the former landlord know when you call them that you have the tenant’s permission.
Stick to the same set of questions for each prior landlord you reach out to. This will help show you weren’t singling out an applicant for favorable or unfavorable treatment.
What Can’t a Landlord Say About a Previous Tenant?
Landlords are under no legal obligation to answer questions about a previous tenant that they’ve had. However, many will do so in order to be of help.
The statements a landlord can’t (or shouldn’t) say about a previous tenant falls under a few different categories, such as lying, exaggerating, speculating, discriminating, and breaking health or consumer privacy laws.
Lies or Exaggerations
This is perhaps the most obvious one, and would clearly be a way for a landlord to find themselves the subject of a lawsuit. This would most likely happen if a landlord didn’t like the tenant, or perhaps didn’t keep great records.
Here are a few examples:
- Saying the tenant rarely paid rent on time when they were only late once or twice.
- Giving statements like “I just didn’t like the guy a whole lot” or “he seemed untrustworthy.”
- Saying the tenant destroyed property when they actually didn’t.
As long as you’re honest and check your records before making claims, this will likely not be an issue for you.
Unprovable Statements or Speculation
This happens when a landlord suspects (or even knows) something about the tenant but doesn’t have any proof. For example, a landlord may be 99% sure that they saw the tenant do a drug deal in the parking lot. There’s likely no way to give concrete evidence over to the next landlord, so it’s better to say nothing at all.
Be sure to stay away from statements like:
- “I think he was in AA.”
- “I think that friend he had over a lot carried a gun.”
- “I didn’t see him do it, but I suspect he vandalized a few cars.”
Sometimes landlords will ask very open-ended questions such as “how were they as a tenant?” These are fantastic questions for uncovering information, but can also lead you down a path of speculation of untruths.
If you do uncover harmful, yet unprovable, biases or opinions while talking to a previous landlord, it’s your job to avoid allowing that to sway your opinion of an applicant. If it’s discovered that you did so, a discrimination lawsuit could be headed your way.
Protected Classes
The Fair Housing Act lays out categories that you cannot use to deny housing. To do this would be considered discrimination. These protected classes are:
- Race
- Color
- National Origin
- Religion
- Sex (including gender identity and sexual orientation)
- Familial Status
- Disability
These classes cover a whole wide range of subcategories that you need to watch out for also. Be sure to avoid asking (or answering) questions like:
- “Do you know if they’re married?”
- “Do they go to church a lot?”
- “How old is he?”
- “Did her disability make her a difficult tenant?”
While the previous landlord likely won’t be sued for discrimination—they’re not the one that would be denying housing—the screening landlord can. If you’re the landlord screening applicants, don’t ask for information that falls under these categories.
If a tenant is denied their application, and they find out that you were asking these types of questions to a prior landlord, you can find yourself in a lawsuit.
HIPAA Violations
HIPAA refers to the Health Insurance Portability and Accountability Act, which protects health information from being disclosed without consent or knowledge.
However, contrary to what many landlords believe, HIPAA does not apply to the landlord-tenant relationship. It does apply to a landlord reaching out to a healthcare provider though, and no healthcare provider is going to give you any information without consent from the tenant.
Also, while HIPAA may not apply to a landlord providing health information, the Fair Housing Act absolutely does.
A landlord may not take any adverse action (rejecting application, requiring cosigner, or raising deposit/rent) for any reason covered by a protected class. If a landlord finds out that they’ve been denied housing because a prior landlord mentioned they were in AA, discrimination lawsuits will likely be forthcoming.
If you’re the landlord doing the screening process, it’s better to simply stay away from anything medical related in your line of questioning.
FCRA-Protected Information
The Fair Credit Reporting Act (FCRA) prohibits using information collected in credit and tenant screening reports for any purpose other than for that landlord to make a decision about the tenant.
This means that any information collected in background checks may not be shared with a future landlord, including criminal background, tenant eviction history (although the landlord can speak to whether they personally had to evict the tenant from their unit), or anything on a credit report.
This information must be disposed of properly by the landlord after the screening process is complete, and must not share it.
