Florida Tenant Screening Regulations
Tenants Screening Laws are subject to both federal and state laws, however, these might have nuances that vary from state to state. These laws primarily apply to applicants for rental properties but can include those who are seeking to purchase homes in Florida. The general principle of these laws is that a company receives a request to screen a possible tenant or homebuyer and runs a criminal background check, filing status check, sex offender registry check, financial background check and even verifies the truthfulness of their rental application, before the landlord or homeowner invests more time into the relationship.
Screening an applicant has a three-fold purpose. The first is the obvious one – that the screening might reveal pertinent information about the applicant so that the landlord or owner can make an informed decision about whether or not to allow the applicant to live on their property. The second is that the screening creates a paper record of any pertinent information uncovered. This paper record is important because, unlike credit reporting agencies which can only keep mostly positive information and must correct negative information within a certain timeframe, companies that conduct tenant screening checks are not subject to such strict standards. This means that tenant screening companies can keep information on consumers dating years back . Third, tenant screening companies are not subject to liability for errors in the information the companies reveal as long as it was obtained through public records – banks, criminal records, tax liens, etc. So, while a tenant may have the right to challenge inaccurate information on a credit report, they do not have such rights with tenant screening companies and making mistakes when screening applicants can carry significant weight.
Under Florida law, while screening companies must disclose if any information they possess is incorrect, they do not have to correct it. According to the tenant screening company TenantMagic.com, there are no state-specific rules other than the disclosures that must be provided to consumers. Florida’s laws provide guidance to landlords about what types of information they can and cannot consider in determining an applicant’s rental background. For instance, it is unlawful for a landlord to consider a rental applicant’s race, color, ethnicity, gender, disability, familial status, age, marital status, income, net worth, creditworthiness, rental payment history, or any other characteristic that would violate federal or state anti-discrimination laws. In addition, Florida’s laws provide a list of ways that landlords can violate these rules – such as prohibiting a landlord from asking about certain information, such as a prospective tenant’s credit rating.
Permissible Background Checks in Florida
Florida landlord-tenant law enables landlords to conduct a variety of background and credit checks on rental applicants and tenants. These background checks include credit history, criminal history, and eviction filings. A landlord may not be able to use all types of background checks without certain limitations, however.
Credit Check: A common method of screening new applicants is a credit check. This type of check allows a landlord to review the prospective tenant’s credit report to determine the individual’s ability to pay the monthly rent. The credit check may also show whether the applicant has an "evictions" portion on the report. If the prospective tenant is applying for subsidized housing, the landlord may make the credit report available to the program administrator. Florida Fair Housing Act, Sec. 760.33(8).
Criminal Check: The Fair Housing Act prohibits landlords from using a criminal background check to discriminate against an applicant based on the applicant’s race, national origin, color, sex, religion, familial status, disability or handicap. Fair Housing Amendment Act of 1988, 42 U.S.C. Section 3604(f). To comply, landlords must have a criminal background check policy that only exclude applicants with convictions that directly relate to the applicant’s ability to act as a tenant. The background check policy must also limit the scope of review and permit applicants to present alternative evidence to mitigate the adverse consequence of their background. Florida Fair Housing Act, Sec. 760.37(4). Under these limitations, landlords may use a criminal background check to exclude applicants with certain convictions such as sexual offense, child endangerment, robbery, burglary, murder, aggravated assault and aggravated battery. These convictions reflect acts that directly affect the applicant’s ability to safely occupy a property as a tenant. Id. Failure to comply with federal and state fair housing laws can result in a lawsuit at great expense.
Eviction History Check: Public records will show whether a person has been evicted in the past. Florida eviction filings are public records and can be accessed through the clerk of the court’s office in the relevant county. Generally, public record searches require a small fee, and are commonly conducted through an online database.
Application Fees and Deposits Explained
Under Florida law, landlords may charge application fees in connection with screening prospective tenants. A common application fee is to run a credit report on the prospective tenant. Many landlords do not charge an actual application fee, but rather add the fee (and less commonly the costs of the credit report) to the advanced rent deposit. While Florida law does not cap the amount of an application fee, some municipalities have enacted ordinances that may limit the amount. The City of Orlando, for example, limits application fees to $50.00 to process each applicant.
Landlords may also charge a security deposit. While there is no Florida statute that prohibits or limits the amount of a security deposit, where a landlord collects more than one month’s rent, the landlord must pay interest on the security deposit in accordance with the terms of § 83.43(12), Florida Statutes.
Florida law also limits the amount of advanced rent that can be collected. The amount of the advanced rent cannot exceed the total of the first three months’ rent. In addition, if a pet deposit is collected or if the landlord charges an additional monthly fee for pets, that fee cannot exceed the amount of one month’s rent, plus tax.
Security deposits must be refunded to the tenant within 15 days of a landlord receiving written notice of noncompliance with the terms of the lease from the tenant or 30-days after termination of the tenancy, if the tenant does not provide written notice of noncompliance and the tenant does not vacate the unit. Furthermore, if a landlord chooses to deduct damages for noncompliance from the security deposit, advanced rent or pet fees, the landlord has five days from the end of the 30-day period to mail the balance of the advance rent or any portion of the deposit that is due to the tenant.
Anti-Discrimination and Fair Housing Laws
Florida tenant screening laws must also comply with federal and state Fair Housing laws. These laws prohibit discrimination on the basis of race, gender, disability, familial status, and other categories.
These laws define who a landlord cannot discriminate against with respect to tenant screening. However, federal law does not prevent landlords from not renting to everyone. For example, it is not illegal to deny housing to someone because they work nights or have pets. The federal Fair Housing Act, 42 U.S.C. § 3601 et seq., prohibits discrimination based on: The Florida Residential Landlord and Tenant Act, Fla. Stat. § 83.001 et seq., likewise prohibits discrimination on these bases, as well as based on marital status, age, and source of income. See Fla. Stat. § 760.23(2). In some cases, a Florida landlord will need to reasonably accommodate a handicapped tenant or prospective tenant to make a place where he or she would like to live accessible. For example, a landlord may have to allow a blind person to install a restricted range of vision over a balcony. The Florida Fair Housing Act, Fla. Stat. § 760.20 et seq., makes it an unfair housing practice to deny equal opportunity to housing-related services. A person house-hunting in Florida should be aware that Florida’s Fair Housing laws apply to churches, private clubs, and others exempt under federal law. Thus, certain private clubs, sometimes called fraternal organizations, are subject to the Florida Fair Housing Act. What if a landlord violates a tenant’s rights under Florida tenant screening laws or Fair Housing laws? The Florida Commission on Human Relations investigates complaints under the Florida Fair Housing Act and can compel a landlord to make reasonable accommodations. A tenant may also sue a landlord for violating his or her rights under this statute. In some Florida counties and municipalities, you may also have similar remedies under a local Fair Housing law.
Renters Rights During the Screening Process
As part of the tenant screening process, a prospective tenant is required to provide certain personal and financial information to the landlord or property manager. On the landlord’s side of the transaction, it is common practice to run a background check on the applicant and to obtain a credit report if the applicant authorizes the landlord to do so. As Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) helps illustrate, however, a consumer is entitled to some privacy in his or her credit history and background information. The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (commonly referred to as the "FCRA") is intended to ensure the privacy of consumer information, while the Fair Housing Act, 42 U.S.C. § 3601 et seq. protects consumers during the tenant screening process. In addition to the tenant’s right to keep certain information private if the landlord or property manager requests it, the landlord or property manager has a duty to keep the information secure and to take reasonable precautions so as not to expose the information to identity thieves. The FCRA dictates that a consumer cannot authorize a credit check beyond what is necessary for the stated purpose, at the outset of an application . For example, in order to obtain a credit report, the landlord must obtain written permission from the applicant to do so. This consent should not give the landlord the right to sell the applicant’s personal and credit information to others, to waive the right to sue the landlord if the landlord misuses the information, or to access any other information not specifically authorized by the applicant. At the same time, the Fair Housing Act, as amended (the "FHA"), prohibits landlords from discriminating against tenant applicants on the basis of race, color, religion, sex, familial status, handicap, national origin or a few other enumerated categories. It is important to note that unlike the FCRA, the FHA applies to business transactions, such as the lease of rental premises, even if a tenant does not apply in writing to rent the premises. In addition, apartment applicants are entitled to have criminal records considered on a case-by-case basis and are entitled to know the rental provider’s policy on applicants with prior criminal convictions. Finally, under the FHA, it is also unlawful for a landlord or property management company to offer different terms to a person on the basis of a protected class, such as race.
Penalties for Non-Compliance by Landlords
Failure to comply with these screening laws can have significant legal and financial consequences for landlords. For example, if a landlord disqualified a tenant applicant because they were either pregnant or had a disability, the applicant could potentially sue the landlord. If the sexual orientation of the tenant applicant was a factor in the disqualification, the applicant could sue their landlord under the law prohibiting discrimination based on sexual orientation.
The Fair Housing Act provides aggrieved parties the ability to file a claim against offending landlords for discrimination. A lawsuit can result in substantial damages. In the event of a lawsuit, the amount of damages is capped based on the number of employees and the company’s annual revenue. For smaller housing providers, the maximum amount of damages is $10,000.00 for the first violation. However, for companies with more than 200 employees and an annual revenue in excess of $7 million, the maximum potential damages are $200,000.00. See Fair Housing Amendments Act of 1988.
These statutory penalties are in addition to damages caused by the tenant rejecting a tenant screening report. Submitting a tenant screening report that contains errors or inaccurate information is likely to lead to a dispute between the landlord and the tenant. Ordering a consumer credit report for an applicant who later becomes a tenant could lead to the lawsuit. In both instances, the landlord is exposed to court costs and litigation fees.
Recommended Processes for Tenant Screening
When it comes to tenant screenings, there are a number of simple best practices that landlords should follow in order to avoid trouble and ensure that their use of these screenings is as fair and compliant as possible. While these best practices are not tailored to Florida law—which may differ from the guidance in other states—they do touch on the underlying principles of using screenings fairly and avoiding violations of state and federal fair housing laws.
First and foremost, landlords should not use tenant screening applications that they have not adequately reviewed. It is important that any third-party screening organizations be reviewed beforehand to ensure that they are in fact compliant with relevant fair housing and consumer protection laws. While screening applications are not technically required to be reviewed, the Consumer Financial Protection Bureau warns , "credit and criminal report providers or consumer reporting agencies can sell tenants’ sensitive financial information to anyone" if landlords are not careful and have not vetted their application providers in advance.
Landlords must also take care to comply with the Fair Credit Reporting Act. One of the key provisions of this act is that tenants must give their "written instructions" giving consent for the use of credit checks. Additionally, the Fair Housing Act and the Equal Credit Opportunity Act prohibit discrimination in the provision of credit, and failing to comply with these acts can result in liability.
Florida law regarding tenant screening creates one important difference from federal law: Landlords must obtain "written consent" to obtain and use tenant background reports, including criminal background checks. This consent must contain the following:
If a landlord refuses to rent to an applicant after a criminal background check, that tenant must be notified about the reason for the denial. The landlord must send this notification in writing and must include the name and address of the consumer reporting agency that furnished the background check.