Exposing rent payment histories for profit

Rent it Right

Janet Portman
Inman News™

Q: I’ve heard that landlords are starting to report on-time rent payments to credit reporting agencies, who will use this information in their credit reports and FICO scores. Is this true? Is it a good thing for tenants? –Amelia B.

A: You heard right. In June 2010, Experian, one of the big three credit bureaus, announced its purchase of RentBureau, a smaller bureau that concentrates on the multifamily rental industry. RentBureau now has a program that allows participating property management companies to feed rent payment histories directly to the bureau. The information will supposedly make its way to credit reports and FICO scores.

Whether this is a good thing for tenants is debatable, however. The website page for residents states that "In the past, only negative rental payment data such as evictions and collections were reported to consumer reporting agencies." The page goes on to hype the benefits of having one’s "on-time rental payments" figure into credit scores, thereby helping tenants "establish or rebuild (their) credit" and "qualify for what (they) deserve."

RentBureau also describes receiving "updated rental payment data" on a daily basis. Readers may conclude that this program is meant to right the wrongs of past practices by transmitting only helpful information.

The refrain on the tenant screener’s page, however, carries quite a different tune. RentBureau’s pitch is that by accessing the "comprehensive positive and negative" data supplied by property managers, the people who screen applicants will reduce the risk that they will admit tenants who will later skip out, require an eviction, and cause bad debt write-offs.

For the property management companies themselves, the bureau notes the continuing need to "identify risky residents and accept more good residents."

In its zeal to sell this product, RentBureau floats the following non-sequitur: "Allow residents to establish or rebuild credit … Contribute both positive and negative rental payment data to enable your residents to qualify for other credit products."

How, may I ask, can the contribution of negative rental history help establish or rebuild credit?

RentBureau’s network of satisfied customers doesn’t stop at property-management companies and applicant screeners. Collection companies, who are urged to contribute their rental collection data to the bureau, will in turn have access to up-to-the-minute data on renters.

When collectors receive "the most up-to-date identification and contact information on (their) accounts," they’ll have an easier time dunning those debtors. And RentBureau promises not just contact information, but a real hammer to pay up. A benefit of participating in the program, writes RentBureau, is "Better leverage … Applicants will be prevented from getting a new lease before satisfying their debt obligations to you." Wow!

Before the appearance of this real-time ability to report on late or missed rent payments, landlords had to assess their applicants’ rent-paying histories by talking to prior landlords, looking for eviction lawsuits, and ordering background reports, which sometimes would pick up on bad debt.

Some specialized screening services also purport to gather information on "skips" (those who leave with unpaid rent). And landlords who take their tenants to court over unpaid rent, and obtain a judgment, can and often do report these judgments to credit reporting agencies directly.

So, you might ask, what’s the problem with having more granular information available more quickly? First, keep in mind that tenants in practically every state have remedies when their landlords fail to make necessary repairs or to keep premises fit and habitable: They can withhold rent, or repair and deduct the cost from that month’s rent.

Each remedy results in less or no rent being paid — and this appears to be what will be reported, immediately, regardless of the legitimacy (or not) of the tenant’s use of the remedy.

If the tenant has improperly used the remedy, the landlord can evict on the basis of nonpayment, and that event will be properly available to future landlords. But if the tenant is in the right, what guarantee is there that the report will be taken off the tenant’s record?

RentBureau acknowledges this pressure, noting that reporting real-time late or skipped payments will "Encourage on-time payments … Report your residents’ rental histories to create a meaningful credit incentive for them to pay on-time." Could this make tenants think twice about exercising their rights, even when the law is on their side?

A second issue with this system is that it will not reach the many tenants who do not rent from large landlords or owners using property management companies. Small landlords who run their own shops are not likely to have the sophisticated computer systems that are needed to "push" the data directly to the bureau.

These tenants, many of whom are on-time payers, may not enjoy the benefit of having their rental history boost their credit reports or FICO scores. And conversely, renters from small or mom and pop landlords who are frequently late or skip will fly under the radar and get a credit report and score that has missed their bad behavior, thereby misleading those (including landlords) who rely on the report or score.

So, is this system a boon to tenants? Yes, particularly if you always pay the rent on time, rent from those who participate in the program, never have the need to withhold rent due to your landlord’s failure to take care of business, and never compete for credit or another rental against a poor-risk tenant whose bad rent-paying history never made it into RentBureau’s databank.

But I question if it will benefit you if you’re a steady rent-paying tenant who legitimately needs to use a tenant remedy; you may be discouraged from exercising your rights, for fear of an instant report of not paying the rent. And I question whether steady payers who rent from owners who don’t participate in the program may suffer by comparison when their credit scores go up against those who do rent from the participants.

Q: I have filed an unlawful detainer for nonpayment of rent against my tenants. Today when I went to the property, I discovered graffiti on the exterior walls and broken windows — the place looked abandoned. The front door was unlocked, and upon entering I found shattered mirrors, holes in the drywall in most rooms, and the refrigerator is missing from the kitchen.

I do not think the deposit will cover the damage, but can I file criminal charges for theft and vandalism? If so, what would the end result of such charges be for the tenant and for me? –Cooper W.

A: When tenants’ deposits do not cover the damage and/or unpaid rent left after they leave, landlords frequently go to small claims court and sue for the balance. But there’s another way to recapture those uncompensated costs, which applies when a criminal act (as opposed to mere carelessness) caused the damage.

Your tenants’ actions arguably fall within the definition of the crime of vandalism, which generally encompasses willful or even ignorant destruction of private or public property. Typically, state laws specifically include graffiti as a form of vandalism.

For example, California law prohibits "any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property" (see: California Penal Code Section 594).

In Illinois, a similarly described crime is called "criminal defacement of property" (ILCS 5/21-1.3). When the damage exceeds a certain amount (several hundred dollars), the crime is no longer a misdemeanor (punishable by confinement in the county jail) but a felony (which can result in prison time).

You’ve also described an instance of theft (removing the refrigerator), which is generally defined as taking someone else’s property with the intent to permanently keep it. Again, whether it’s petty theft (a misdemeanor) or grand larceny (a felony) will depend on the value of the item taken.

Criminal statutes provide for punishments other than imprisonment. They often specify fines, and, likely of more interest to you, restitution to the victim who was harmed.

For example, in the California vandalism statute cited above, punishment for graffiti includes ordering "the defendant to clean up, repair, or replace the damaged property himself or herself, or order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti for up to one year."

Because the damage your rental property sustained arguably resulted from criminal acts, restitution is your best shot at getting paid. If you ask the police to come out and observe the scene, they will probably write a report, which will be forwarded to the local prosecuting office for review.

The prosecutors, sometimes in consultation with you, will decide whether to file charges. The factors they’ll consider will include the seriousness of the crime, the damage or injury it caused, the criminal record (if any) of the alleged perpetrator, their current caseload, and the likelihood of conviction. The victim’s wishes, though relevant, are not the determining factor. So "pressing charges" means asking the prosecutor to bring a case, and hoping she will do so.

Once the case is filed (and the defendant arrested), it will result in a plea, trial or dismissal. Assuming the evidence is there to connect the tenant with the damage and theft, and that it goes ahead to a plea of guilty or a trial with a finding of guilt, the judge will impose a sentence. At this point, you could ask the prosecutor to ask for an order of restitution to pay you the out-of-pocket costs you incurred to repair and replace items damaged or taken from the rental.

A restitution order packs a punch. Unlike a civil judgment that you’d get from a small claims court, which can never include a threat of jail time (debtors’ prisons are a thing of the past), restitution orders are framed something like this: "Defendant is sentenced to X months in the county jail, which is suspended pending defendant’s restitution to the victim of Y dollars, to be paid in the following manner and by the following date." In other words, pay up or go to jail. That’s a powerful motivator.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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