Tenant Screening Laws in New York: A Primer on What Landlords Can Ask For
Tenant Screening Laws Explained
Tenant screening laws govern how landlords can conduct background checks and other inquiries into the personal or financial history of prospective tenants. These laws seek to address issues such as privacy concerns and discrimination. Overall, the objective of these laws is to protect renters from unfair treatment and to ensure that landlords have access to information that helps them evaluate rental applications.
Tenant screening laws can help to identify and mitigate risks to both landlords and tenants. For landlords, screening laws can highlight credit, criminal, and rental history in order to help identify individuals who may be a potential liability. For tenants, screening laws can prevent discrimination based on race , gender, or religion when choosing a place to live. This can promote a fair and equitable process for all involved.
In the context of New York State, local laws such as these could be utilized by renters to protect themselves and their landlords by establishing rules for applicants that can help to ensure they are a good fit for the property. These laws can also help to hold landlords responsible if they violate these rules, such as by unfairly denying rental applications or making decisions based on an applicant’s race or sex. Overall, tenant screening laws in New York serve to ensure that renters can have a fair and unbiased opportunity to secure a lease, while enabling landlords to identify the best candidates.
Legal Framework of Tenant Screening in New York
New York, unlike many states, does not have a law governing consumer reporting agencies. However, New York landlords must comply with several local laws and ordinances.
New York City
The New York City Commission on Human Rights recently issued new regulations that protect more classes of individuals and group classes than ever before. Tenants cannot be rejected for rental due to their age, caregiver status, gender identity, and immigration status, in addition to the more traditional fair housing protected classes. The law also requires landlords to clarify the factors they will consider in making decisions, provide tenants with a copy of their tenant screening report, and provide notice to rejected applicants about their right to contest the information used in their screening reports. Some New York City housing providers may be exempt from certain landlord-tenant laws due to industry exclusions.
New York City lends an additional wrinkle to its enforcement of tenant screening regulations. Under the law, if you or your agent are denied the opportunity to access an applicant’s records, you are required to notify the Commission. As well, you may not charge application, processing, or screening fees. In effect, landlords must assume the risk of tenant screening errors.
New York State
Outside of New York City, occupancy controls are far less complex. Generally, New York State does not regulate any aspect of tenant screening aside from providing an "antidiscrimination" notice to applicants detailing any and all factors you will consider when evaluating their applications. You must also provide them a copy of any tenant screening report you receive from a third party. While not state law, the Department of State and the Division of Human Rights encourage landlords to consider an individual’s housing history and not simply rely on consumer credit scores.
One situation may arise in New York State rentals that does not commonly impact other states. Many counties in New York State have enacted "good cause" eviction laws that require courts to grant tenants the right to defend against evictions based upon "insufficient" reasons. It is important to note that, under these statutes, the definition of "cause" does not include nonpayment of rent or other lease violations.
The New York Fair Housing Laws
Tenant screening and selection must be done in a fair and lawful manner. The primary law that affects tenant screening and selection at the federal level is the Fair Housing Act (FHA), but there are other laws at the state and local level that govern the type of questions a landlord can ask and the issues a landlord can consider when screening an applicant.
The New York City Human Rights Law (NYCHRL) prohibitions discrimination when selling or renting real property because of race, color, religion, national origin, gender, disability, sexual orientation, marital status, age, alienage or citizenship status, income source, family status, or housing status (such as if you are an employee or former employee, a tenant or former tenant, a member or former member of a housing cooperative, a participant in a housing program, or a homeless person). The New York City Commission on Human Rights (NYCCHR) is charged with enforcing the NYCHRL.
Discriminatory practices prohibited by the FHA and the NYCHRL include: All other laws that might look to restrict landlord behavior in ways similar to the FHA and the NYCHRL are considered to be pre-empted by the FHA (meaning that the FHA is used instead of those other laws). For example, New York City’s law against discrimination based on lawful occupation has been held to be pre-empted by the FHA, although the New York State Human Rights Law prohibits discrimination on these same grounds.
Consumer Background Checks
In New York, landlords typically request the following background information as part of their application process:
Credit reports. New York requires any applicant who pays the application fee to receive a copy of their credit report if it was requested. A tenant can also request the names and addresses of anyone to whom the report was provided.
Criminal history. This information is usually in the form of a national criminal database report, but could also include a more detailed record. The Fair Chance Act (discussed later in this article) puts restrictions on what kind of past criminal history can disqualify an applicant.
Rental history. The rental history report generally includes the name and address of all landlords an applicant rented from, how long they lived there, their rent payment history, the reason for leaving, and whether or not they have been the subject of an eviction. The landlord can ask the applicant for permission to contact the references, which would then need to be obtained.
Social security number. A social security number can enable the manager to run background checks and public record searches. However, the applicant’s written consent is required, and if they don’t respond to the request, the landlord cannot proceed with the background check. The social security number can be retained (but not copied) if the applicant authorizes its retention.
Social media. While the use of social media as a resident screening tool is generally not permitted due to the risk of against Fair Housing Act violations, limited inquiries may be requested.
Permission and Advance Notices
New York also has numerous consent and notification requirements associated with tenant screening. A landlord cannot conduct any type of screening unless it first obtains tenant consent. The Consent Form must be separate from the lease and must specifically disclose: Information in the Report . The law requires that the tenant get a copy of the report at the time it is obtained by the landlord. In addition, the landlord must notify the tenant if they were denied a lease based upon the report. This is called an "adverse action" notice. The tenant must receive that notice either with the report itself or by sending the notice within 30 days of taking adverse action.
Liabilities for Not Following the Laws
Non-compliance with tenant screening laws can have significant legal and financial consequences for landlords in New York. Fines and damages can be awarded to tenants who have been wrongfully denied housing due to a violation of these laws. A tenant may be entitled to actual damages for losses incurred due to the landlord’s violation of the tenant screening laws, with a minimum amount of $1,000. The tenant may also recover attorney’s fees and other costs related to enforcing the law. However, the law makes no provision for punitive damages or the payment of damages for any emotional distress the tenant suffers. A tenant also has the right to bring a lawsuit for violation of tenant screening laws, even though the law is written only for enforcement by the state attorney general. Any person aggrieved by an unlawful practice may commence an action in the Supreme Court or in a local district court to protect against the practice or to seek the imposition of a penalty.
Best Possible Practices for Tenant Screening
To ensure compliance with New York tenant screening laws, landlords and property managers should develop a consistent policy for evaluating tenancy applications, including a standard application form to be completed by all applicants. This form should ask each applicant to identify any criminal convictions. However, landlords cannot automatically disqualify applicants based on his or her criminal history; New York City has outlawed the consideration of certain types of criminal histories. New York State, as of April 12, 2019, has passed an amendment to the Human Rights Law that prohibits the inquiry and/or consideration of a prospective tenant’s criminal history. As described above, in New York City, in addition, lawful inquiries and consideration include only felony convictions for which less than one (1) year has elapsed since the completion of the prison sentence for the conviction and misdemeanor convictions for which less than three (3) years have elapsed since the completion of the prison sentence for the conviction. This is known as the "lookback period." This means that a landlord may not consider a misdemeanor conviction if three (3) years has passed since the completion of the prison sentence and may not take adverse action based on a felony conviction if one (1) year has passed since the completion of the prison sentence . Likewise, if an applicant was incarcerated as a result of a misdemeanor conviction within three (3) years prior to applying for the tenancy and was not released from prison within the last six (6) months, the landlord may not consider this an adverse factor. Similarly, if an applicant was incarcerated as a result of a felony conviction within one (1) year prior to applying for the tenancy and was not released from prison within the last six (6) months, the landlord may not consider this an adverse factor. While these laws only apply to rentals in New York City, other major metropolitan areas in New York State are likely to follow suit. While New York tenant screening and discrimination laws are complex, landlords in New York can ensure compliance with these laws by taking a simple three-step approach: 1. Review the applicable municipality’s tenant screening law, including any relevant ordinances, to be certain that all required assessment parameters are duly considered in evaluating the prospective tenant’s application. 2. While various municipalities may prohibit the consideration of criminal histories, any convictions that fall outside of the prohibited categories can be considered (subject to compliance with the Fair Housing Act and other state and local laws). In such instances, remember to review and apply the risk factors listed above when determining whether to accept or deny a tenancy application based on any criminal convictions. 3. Develop a policy based on the New York and local screening laws, and apply the policy consistently to all applicants.