The tenant reference check: Choose your words carefully

Colin McCarthy
Colin McCarthy | 4 min. read

Published on January 30, 2015

Not only am I a lawyer, but I am a husband and father of three. In the little free time I have, I often find myself mediating disputes not among my clients or partners or among opposing counsel, but among my three children. Because my wife is also a lawyer, I like to think my three kids are particularly legalistic in their intra-sibling disputes and in their appeals to the household authorities.

Each child is always complaining about something, like why he didn’t get as much Xbox time as a sibling. (Because you didn’t read as much as they did!). Or, why did the other one get a brownie and I didn’t? (Because she ate all her dinner!) Or, why do I have to clean up my room? (Because I said so.)

Frequently we have to ask the kids not to speak ill of each other, because that’s what causes the most tears. “If you don’t have anything nice to say, don’t say anything at all,” I tell them, repeating what my mother told me. (See Mom, I did listen to you!)

What Does This Have to Do with Landlord-Tenant Law?

Good question. If you have rented a dwelling unit to a tenant and that tenant is moving to another rental unit, it won’t be uncommon to receive a request for a tenant reference check.

You’ll probably be asked, “Was this person a good tenant?” In most cases, the answer will be “yes” and there is no legal risk in so stating. A potential problem comes up if you are asked about the tenant who was always late with the rent, held crazy parties that necessitated wall repairs, made the neighbors complain about noise, and who made unfounded demands for repairs.

The question is, if you don’t have anything nice to say, should you say anything at all?

What Are the Risks of Disclosing “Too Much” in a Tenant Reference Check?

If a prospective tenant’s application is denied by the inquiring landlord because of your statements about their behavior, you could be held responsible. As such, a former tenant may have a cause of action against you.

Here are three such causes of action to avoid when screening tenants:

  • Slander or libel:Defined as an untrue statement about the tenant which caused him or her damage. The defining characteristic of slander/libel is that the statement made is “untrue”—as long as you are truthful in your statements about the tenant’s behavior, you have a defense.
  • Intentional/negligent interference:In addition to the above-mentioned suit, a tenant could claim that you deliberately or negligently interfered with the potential tenancy. Again, if you stick to the facts, the meat of such a cause of action is negated.
  • Civil rights claim:This is another potential landmine. Always avoid any reference to the former tenant’s race, religion, sexual orientation, familial status, or gender when providing information. Not only is it irrelevant to the discussion, it is illegal.

Opinions Are Best Left to Cable News Hosts, Not Tenant Screenings

The best way to avoid these types of claims is to give the minimum amount of information, only provide the facts, and leave your opinion out of it. Facts can be supported by evidence, while opinions open the door to a lawsuit.

If, for example, the tenant was habitually late in rent payments, you can say that you had to impose “x” number of late fees. Or, that of the total amount owed on the lease, this tenant only paid “y” amount. These are factual statements, as opposed to saying, “He was a bum, I didn’t like him.” That is an opinion.

It’s not a surprise that both my children and my clients don’t always heed my advice to “say nothing at all.” In both cases, this leads to hurt feelings, and probably, we should be advised to be careful when responding to a request for a tenant reference check.

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Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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