New law stands to further conceal rental risks

Assembly Bill 3088 may cloak nonpayment of rent cases arising during the pandemic

In several blogs, we parroted that a culture of amnesty has sometimes blinded landlords and property managers who are tasked with evaluating rental applications. In the tenant selection process, a problematic history may be masked. 

Take, for instance, the consumer-friendly National Consumer Assistance Plan, a cooperative initiative between the three major credit bureaus designed to make credit reports more accurate, transparent, and understandable. As a result of reforms in best practices, certain blemishes such as civil judgment might go unidentified. 

Another safeguard for tenants is Assembly Bill 2819, legislation aimed to protect the privacy, credit, and reputation of innocent tenants who are involved in eviction lawsuits. Daniel explains that unlawful detainer actions are permanently sealed from the public unless the owner is able to demonstrate that a judgment is secured within 60 days of filing the eviction action. 


In Oakland and Berkeley, there are aggressive ordinances in place prohibiting criminal background checks in tenant screening, of course with the intent of helping formerly incarcerated people get his or her fair chance at housing. 

Enter the COVID-19 Tenant Protection Act of 2020, a law we discuss extensively here. Lawmakers took the stance that tenants who have been financially impacted by the pandemic should not be punished twice by being denied housing because of unpaid rent that accrued during COVID-19. Contained in the 20,000-word bill is a provision that states eviction judgments in nonpayment of rent cases filed between March 4, 2020 - January 31, 20201, may be concealed and not publicly available, regardless of the outcome.

We applaud this added protection and agree wholeheartedly that those who have been impacted by COVID-19 should not face even more adversity by being improperly denied housing. We want rental property owners and operators to understand, however, that a tenant's rental history might not be discernable from the standard, automated tools we are used to using. 

Our assessment

With a whole confluence of factors that essentially blind property owners and managers to rental risks, it is imperative to do your due diligence on the front end of tenant screening, and this should include personal, work, and landlord references. A simple question to a previous landlord can cut to the chase - “would you rent to them again?”. In our culture of pointing and clicking, rental housing providers should understand that technology is not a crutch and that some personal sleuthing is in order. 

Among its misdeeds, technology can even breed discrimination. We were intrigued to come across this federal lawsuit against CoreLogic, a company that screens tenants and is blamed for using algorithms that replace human biases. It is being argued by tenants’ advocates that algorithms can carry out the same racial discrimination that humans are prone to. 

Parting thoughts

At Bornstein Law, we understand that the past does not equal the future, and we have been inspired by the accounts of many of our clients and other compassionate, lenient landlords who have taken a leap of faith by renting to tenants who have had a less-than-perfect history. We are all about second chances. 

We are also about transparency and giving landlords the data they need to make an informed decision when considering a prospective tenant so that this selection can be made on the merits of each individual application. 

Of course, there have been many people struggling as a result of the pandemic, and some leeway should be given to those rental applicants who have bounced back after losing income through no fault of their own. Any evaluation of a tenant's rental history should be put into context and weighed against the fact that each and every one of us has experienced distress in some form or fashion - new tenancies should not be summarily ruled out because COVID-19 has reared its ugly head. 

Certainly, Bornstein Law can assist in your rental business from the inception of the relationship, from A-Z, and you’ll find this guidance to be all the more helpful during a tumultuous time that has marked the most complicated time ever in landlord-tenant law.