Tenants shouldn't be 'blacklisted' for asserting their rights | Opinion

 

By Paula A. Franzese 

Posted on July 21, 2017

 

The building at 2 Stratford Place, one of four condemned by Newark officials on Thursday.

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Yanira Cortes, a mother of four young children, lives in subsidized housing in Newark's Pueblo City Apartments. Her apartment is unsafe and uninhabitable, infested by rats, roaches and mold.

Her complaints to the landlord have gone unheeded. Finally, when the premises' bathroom ceiling collapsed, she withheld rent as is her right under the law and was promptly sued for eviction.

As a result, she found herself placed on a tenant "blacklist" that is the equivalent of a miserable credit rating.

Tenants who appear on those "tenant screening reports" find themselves denied future renting opportunities and discriminated against because they asserted their right to safe and inhabitable housing.

Cortes' appearance on that list sunk her chances of finding another apartment. In her words, "Now when I try to apply to other places, they tell me, 'You went to court for an eviction, you're a bad tenant.'"

For the past two years my colleagues Abbott Gorin, David Guzik and I have studied the experiences of low-income residential tenants in Essex County. We found that landlords can use tenant screening reports generated by private reporting agencies as a means to penalize tenants who fight back against unsafe and unlivable conditions.

Tenants like Cortes find themselves punished for asserting their right to safe and inhabitable premises while landlords who lease grossly substandard affordable housing units continue to receive sizable state and federal subsidies for those units.

The implied warranty of habitability is supposed to assure a residential tenant that the premises she leases will be safe and suitable for dwelling. It permits a tenant living in unfit premises to withhold rent until the problems complained of - like the absence of heat in winter, inadequate plumbing, lack of running water, and rodent and mold infestation - are abated.

But rather than compel landlord compliance with the law, a tenant's withholding of rent most often prompts the landlord's swift eviction action. The very commencement of that action, no matter its context or resolution, puts the named tenant on a "blacklist," called a "tenant screening report."

Court systems in New Jersey and across the country inadvertently feed the practice insofar as these privatized tenant screening agencies are able to access records of landlord-tenant court filings to vet prospective tenants at landlords' request. The agency issues its report in exchange for a fee that the tenant must pay when applying for rental housing

The report, which the tenant never sees, lists any and all instances in which that tenant was named as either a plaintiff or defendant in a housing court action. It reveals nothing about the given circumstances, not even indicating whether the tenant prevailed in the matter. There is no appeal process or chance for the adversely affected tenant to explain how and why she came to appear on the list. 
 
A tenant whose name appears on the list is stigmatized and denied future renting opportunities, rendering affordable housing options even less accessible.

What is more, the lists skew market efficiencies, creating "false negatives" of prospective renters who would in fact be fine tenants. Further, the very specter of being blacklisted imposes a considerable chilling effect, dissuading tenants from exercising otherwise assured rights and remedies.

We teach our law students that a right without a means for its vindication is hollow. For too long now, the system has been stacked against tenants struggling to live in safe and affordable housing.

This week, U.S. Sen. Cory Booker (D-NJ) is rolling out legislation to meaningfully reform tenant screening practices. The bill would amend the federal Fair Credit Reporting Act to exclude from tenant screening reports any landlord-tenant court or housing court matter that did not result in a judgment of possession in favor of the landlord and all matters that are more than three years old.

Its provisions would help to assure fair and accurate reporting, guaranteeing tenants a free copy of the generated report and the opportunity, through a central clearinghouse, to correct inaccuracies and provide context.

The proposed federal legislation mirrors in significant part a New Jersey bill introduced earlier this year by state Sens. Richard Codey (D-Essex/Morris), Ronald Rice (D-Essex) and Brian Stack (D-Hudson) and, like its state counterpart, it deserves passage.

Paula Franzese, the Peter W. Rodino professor of law at Seton Hall School of Law, is one of the country's leading experts in property law as well as government ethics.

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