Your Rights When a Private Landlord Runs a Criminal Background Check

As an applicant to private housing, you have legal rights related to the information that comes up in a private background check, and how a private landlord may use it. The law protects you by making it illegal for certain types of information to be included in a criminal background check (also called a “tenant report,” or in California, a “consumer report”) on you. But there are a lot of laws that limit what a private background check company creating a tenant report for a landlord can share with them.

What must a private landlord do if they want to get a background check/tenant report on me?

Under state and federal law, you have the right to the following protections if a private landlord runs a background check on you:

    The Landlord Must Give You “Notice” & Get Written Permission to Run a Background Check: This means that you must receive a written document (“notice”) from the landlord saying that s/he wishes to conduct a background check on you. The landlord must get your written permission before getting the background check.[1286]
    Give the Applicant a Copy of the Background Check: Within 3 days of receiving the background check report, the landlord must provide you with a copy.[1287] In California, you also have the right to request a copy of your report for at least 2 years after the background check company provides your report to the landlord (or anyone else who requests the report).[1288]
  1. 1286

    15 U.S.C. § 1681b(b)(2)(A); Cal. Civ. Code § 1786.16(a)(2).

  2. 1287

    Cal. Civ. Code § 1786.16.

  3. 1288

    Cal. Civ. Code § 1786.11.

What information cannot be included in a private background check/tenant report in California?

The following information cannot show up in a private background check report in California:

    Lawsuits or judgments from more than 7 years ago;[1289]
    Criminal convictions from more than 7 years ago;
    Any information about arrests or formal charges from more than 7 years ago;
    Criminal convictions that have been fully pardoned, dismissed, expunged, eradicated, or sealed under court order;
    Any information about arrests or formal charges that did not result in conviction, no matter how recent (unless your judgment is still pending);[1290]
    Any information about referrals to, or participation in, any pre-trial or post-trial diversion programs (court-mandated programs which function as a form of alternative sentencing);
    Paid tax liens from more than 7 years ago;[1291]
    Accounts placed in collections from more than 7 years ago;
    Bankruptcies from more than 10 years ago;
    Evictions actions (“unlawful detainers’) that you won or resolved with a settlement agreement;
    Any other negative information like repossessions, foreclosures, check verification reports, motor vehicle reports, or drug test results[1292] from more than 7 years ago.[1293]
  1. 1289

    Unless governed by a longer statute of limitations, which extends the time in which a suit, judgment, or arrest remains effective.

  2. 1290

    EXCEPTIONS: An agency can report these kinds of arrests or charges if judgment is still pending.

  3. 1291

    When a tax debt is not timely paid, the government’s legal claim against your property is considered a “tax lien.” http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Understanding-a-Federal-Tax-Lien.

  4. 1292

    Consumer Data Industry Association, http://www.cdiaonline.org/HTC/htc.cfm?ItemNumber=1080

  5. 1293

    Cal. Civ. Code § 1786.18.

Do private background check companies have to make sure the information they report to a landlord in a tenant report is true and accurate?

Yes. Private background check companies (called “Credit Reporting Agencies” in California) CANNOT include “public record” information unless it has been double-checked for accuracy in the past 30 days. Public record information includes arrests, convictions, civil actions, tax liens, and outstanding judgments.

Does a private landlord have to tell me that the criminal record information that showed up in a private background check/tenant report is the reason I am not getting the apartment?

Yes! The landlord has to tell you if your criminal history is the reason you are not getting the apartment. If there is a negative action taken—like not renting you the apartment—because of a background report, the landlord must follow this 2-step procedure:

STEP 1: The landlord must provide you with a copy of the report and a copy of the Federal Trade Commission Summary of Rights before the negative action is taken—giving you an opportunity to clear up any inaccuracies in the report.

STEP 2: If the landlord goes forward with the negative action, it must provide you notice about the adverse decision, the contact information of the reporting agency, a statement that the landlord (and not the screening company) made the adverse decision; and your right to dispute the accuracy or completeness of the report.[1294]

  1. 1294

    15 U.S.C. §§ 1681b(b)(3), 1681m(a); Cal. Civ. Code § 1786.40.