Flawed CA AB396 Bill Would Create a Nightmare to the Rental Housing Market

UPDATE: The author, Mr. Jones-Sawyer, decided to shelve the measure this year and make it a “two-year bill.”  CIC opposed AB396.  For now, the bill will not see further legislative action until next year.

On Wednesday, May 27th the Appropriations Committee was scheduled to hear AB396 that would completely change the way criminal records are accessed and used during the rental screening process.  The hearing was cancelled by the author for unknown reasons; however this doesn’t mean it is over and the rental housing industry must remain on its toes.

Despite several attempts from Assemblymember Jones-Sawyer to amend the flawed AB396, there are still numerous issues which landlords, property management companies, apartment associations and politicians should be aware.

The amended bill limits when a landlord may inquire about a prospective tenant’s criminal record stating that under the Fair Employment and Housing Act (FEHA) it is an unlawful housing practice to require disclosure of a conviction.

If the bill passes, rental applications cannot have the question asking about criminal records; landlords, during the initial screening phase, will no longer be allowed to run a criminal check (when the credit report is ran); and when the criminal check is processed as a final and “separate” step the landlord must provide another written disclosure.

So what if the applicant has a conviction and they are denied?  The applicant may provide evidence of rehabilitation or other mitigating factors.  Jones-Sawyer stated “if a rapist applies after serving their time, the manager should sit down with the ex felon, have a dialogue with the applicant..” AB396 would create a screening process nightmare, not to mention safety concerns.

Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. The Office of Information Policy at the DOJ oversees agency compliance with these directives and encourages all agencies to fully comply with both the letter and the spirit of the FOIA.  California Public Records Act (CPRA) also exists in the same spirit of openness.

By taking a multi-level approach to thorough resident screening, landlords and property managers are more likely to forego this time consuming process altogether further jeopardizing the resident’s right of a quiet and peaceful residence.

California case law has established that a landlord may be held responsible for the tortuous or illegal acts of a tenant if the landlord knows or should have known that the tenant could pose a danger to third parties.¹

The person or business that controls the property has a “general duty [which] includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten [persons on the property] where [he] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”²

Aside from the blatant contradiction AB396 has to other laws, it also creates procedural complications which would not only create issues in adhering to the FCRA “maximum possible accuracy” clause, but will assuredly increase litigation from vexatious litigants who were not likely qualified, but see an opportunity.

Applicants who may be denied due to a criminal history will be encouraged by the plaintiff’s bar to file suit against a landlord on a procedural misstep thereby (a) obscuring the fact that he has a criminal record which may have endangered other residents (b) allowing him to profit from a criminal act and (c) discouraging landlords from processing complete resident screening profiles and putting the physical security of the property and its residents at risk.

The rental housing industry’s voice must be heard by contacting their representatives: http://assembly.ca.gov/assemblymembers


¹  In Santos v. Scott Villa Apartments and Francis Property Management (Los Angeles case BC355923)
²  Taylor v. Centennial Bowl, Inc.,  65 Cal. 2d 114, 121 (Cal.1966)

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