Eviction Records and Tenant Screening Protections

Every year, 3.6 million people across the country — disproportionately Black and Latinx women — experience an eviction filing. Evictions are not an episodic event — people with an eviction record have a harder time accessing safe and affordable housing opportunities, regardless of the outcome of the eviction case. Landlords who rely on tenant screening tools to derive a tenant’s rental history, such as tenant screening reports, often refuse to rent to prospective tenants because of the existence of an eviction filing in their rental history. These records remain easily accessible to the public and tenant screening companies, even when the filing does not lead to an eviction or is resolved in a tenant’s favor. In addition, these screening companies’ scoring algorithms are opaque, leaving tenants with little recourse to contest a bad score, while the reports themselves are filled with inaccuracies.

Even if the information on the record is accurate, a payment that is late by a few days becomes a record that lasts years into the future, punishing tenants by locking them out of decent housing for years to come. Eviction records are often just a brief snapshot of a person going through a difficult period. Tenants can recover from an illness, job loss, or family death, but the eviction record will follow them, trapping them in substandard housing or preventing access to better job opportunities that require them to relocate. Tenants are often punished for exercising their legal right to withhold rent for repairs, resulting in an eviction filing. The tenant ends up with a permanent blemish on their record because the landlord failed to uphold their end of their agreement by providing a safe and habitable home. Tenants are caught up in dangerous cycles of poverty as a result of policies that make these records easy to incur and difficult, if not impossible, to get rid of, despite the fact that studies have shown that the use of background checks are ineffective at predicting a successful tenancy.

Tenants across the country are increasingly demanding stronger tenant screening protections and eviction record sealing policies that make it difficult for an eviction to influence a person’s housing stability into the far future. As a result of these demands, policymakers are exploring and passing policies that dismantle the significant barriers eviction records create for access to stable and healthy housing, by regulating public access to such records and creating restrictions for how they can be used in rental decisions for prospective tenants. Eviction record sealing policies and tenant screening regulations help protect tenants from the adverse, long-term impacts of an eviction record on housing and economic opportunities.

Terms used for eviction record sealing may vary depending on the jurisdiction and the stage of the process the protection applies to. Eviction record sealing policies usually obscure eviction records from the public. Some eviction record sealing policies may include exceptions that allow the record to remain accessible to key parties, like a tenant’s attorney or legal representative, and academic researchers. Other policies may function to deny specific parties access to certain tenant information. Some policies take the form of expungements, which remove the eviction record from a court’s record-keeping system completely; then there are vacated eviction cases, which means that the eviction judgment has been set aside or annulled. Eviction records can be sealed at the point of filing after a proceeding has ended, or a judgment has been made.

Landlords regularly rely on tenant screening companies, which will package an applicant’s credit history, criminal history, and eviction records into a format that gives a quick indication to a landlord whether they should rent to a prospective tenant, without additional nuance or detail. Tenant screening processes often cause critical delays for tenants searching for housing, and causes tenants with fewer resources to pay more in rental application fees. Tenant screening regulations prevent, restrict, or clarify the power landlords and tenant screening companies have to utilize background information, like eviction, credit, or criminal history records from adversely impacting tenants. Tenant screening protections will typically apply at the earlier stages of the process that landlords utilize when renting out a unit and screening prospective applicants and often incorporate a host of directives, prohibitions, or requirements for landlords.

Tenant screening protection policies can take various forms:

• Requiring landlords to provide uniform screening criteria to every prospective tenant who is applying to live in a unit
  
• Proscribe the type of criteria that a landlord can consider utilizing when evaluating an applicant’s potential tenancy
  
• Mandating that a landlord take a holistic approach when evaluating the potential of an applicant’s tenancy by giving weight to other circumstances besides an applicant’s credit, criminal, or eviction history
  
• Prohibit screening policies that reject a tenant’s application to a unit solely as a result of an applicant’s credit, criminal, or eviction record history
  
• Establish a shorter look-back period that landlords can consider when screening a prospective tenant
  

Under the Fair Credit Reporting Act (FCRA), the federal government allows screening companies to report eviction records that are up to seven years old. Prospective landlords and property managers are also required to notify tenants if a tenant screening report or credit report was used in their decision to deny housing. If a tenant requests to know why they were denied housing, landlords and property managers are also required to provide contact information for the tenant screening company used, notify applicants of their right to dispute the information, and notify applicants of their entitlement to a free copy of their screening report within 60 days of their denial. However, landlords often do not make tenants aware of these rights and keep their own screening criteria, or the information they used to make a decision, ambiguous.

When tenants attempt to exercise their rights under FCRA after finding errors in tenant screening reports, tenant screening companies are seldom responsive to a tenant’s requests to correct a record. State and local laws that regulate the screening protocols that landlords use, regulate the type of information tenant screening companies can include in reports, and restrict landlord and tenant screening companies’ access to eviction records, can help enforce FCRA.

Recently, the Biden Administration released a Blueprint for a Renter's Bill of Rights that highlights continued efforts on behalf of the Consumer Finance Protection Bureau (CFPB) and the Federal Trade Commission (FTC) to hold tenant screening companies accountable to releasing accurate information and abiding by existing laws like the Fair Housing Act.

In addition to PolicyLink resources listed to the right, see Upturn, TechEquity, Center for American Progress, the Consumer Financial Protection Bureau, and the National Consumer Law Center for additional materials and resources on sealing eviction records and regulating tenant screening practices.

• Tenant associations, community-based organizations, and other housing justice advocates can develop grassroots campaigns to build public support and advocate for strong eviction record-sealing laws and tenant screening regulations.
  
• Landlords must abide by FCRA and the federal Fair Housing Act, as well as other state and local eviction record sealing, tenant screening, and fair chance housing laws.
  
• Elected and appointed state and city officials propose, pass, implement, and enforce eviction records sealing laws, and tenant screening policies.
  
• Judges and court administrators can help inform the best means to implement changes to their record-keeping systems in alignment with their existing technology and procedures.

• Policy Design: Many eviction sealing and expungement laws around the country put the responsibility on the tenant to seal their record if a filing has already been made public by the court. There are often barriers to this process, particularly for low-income tenants, because it may mean finding a lawyer, paying fees, filing the correct motions, and then waiting for a court's finding to rule in their favor to completely seal the eviction. The strongest eviction sealing policies seal the record at the point of filing.
  
• Administrative Capacity: It is critical to consider the current capacity or procedures of local court systems. Civil courts have their own procedures, technology, and policies around record keeping and publicizing court records. Becoming familiar with these facets of the court’s record-keeping system can help advocates target their advocacy strategies on the specific needs of their local court (such as increased funding for improved software) and help support the court’s capacity to make necessary changes to the system under the new policy.
  
• Record Accessibility for Key Parties: Eviction record sealing policies should allow limited access to eviction records for key parties, such as researchers and tenant lawyers, through a request process or a unique login to court record databases. This is vital so that a tenant’s legal counsel can have the information they need in order to provide timely and effective representation to their client. Researchers rely on access to eviction records to investigate trends on filing patterns.
  
• Complementary Policies: Eviction record sealing and tenant screening regulations can be even more effective when paired with other policies that help to disrupt a system that locks renters out of future housing opportunities. Tenant right-to-counsel policies provide legal support to fight evictions and ensure the best outcomes for tenants in the proceedings, while attorneys can also ensure that sealing or expungement protections are applied where they are available. Additionally, rental registries can help track, evaluate, and enforce local and state tenant screening laws.
  
• Regular Evaluation: Sealing policies and tenant screening protections should integrate robust data collection to evaluate their effectiveness. Regular evaluation can help keep key government offices accountable to enforcing the law, ensure that tenants are aware of their rights, and can help produce recommendations for strengthening the policies.

Depleted rental assistance programs and expiring protections since the onset of the Covid-19 pandemic have left even more tenants across the country at risk of, or facing an eviction filing than ever before. Communities across the country are continuing to push for eviction sealing and tenant screening regulations, especially in a time where eviction filings are rising to or beyond pre-pandemic levels. Since 2020, 17 states proposed and considered over 31 policies that would seal eviction records and protect the futures of tenants during an unprecedented time. The following are a few places around the country with the strongest policies that seal at the point of filing, keep pertinent information restricted from the public, or provide a low threshold for tenants to seal their own records.

• In 2016, California passed state bill AB 2819 which automatically seals an eviction record by restricting public access to the records at the point of filing for 60 days. The record remains sealed unless, by the end of those 60 days, a case goes to trial and a judgment is made in favor of the landlord. If a case takes longer than 60 days to go to trial and receive a judgment, the case remains permanently sealed. Because of AB 2819, tenants are able to file motions that address the conditions of their dwelling and request that a record be sealed as a stipulation if the case results in a settlement, without fear of a record that will have lasting repercussions. However, this process still requires tenants to avoid default in order to have their records sealed, which can be difficult to avoid due to challenges in seeking legal representation and the quick pace of eviction proceedings. Prior to this law, California tenants needed to expedite their case and win within 60 days in order to seal their record, but this proved increasingly difficult given that court capacity and resource constraints consistently pushed cases beyond 60 days. Advocates note that the previous policy made it nearly impossible for eviction records to be sealed, even if they did win, while tenants were constantly at the whim of a landlord’s stipulations in settlements. Access to eviction records in California, as a result of AB 2819, is provided to the individuals named in an eviction case with the added benefit of receiving additional information on ways to avoid an eviction through legal aid resources and rental assistance. And while the ability for researchers and tenant advocate organizations to access eviction records for research purposes is more challenging, this law still helps to prevent misuse of data from external entities.
  
• Philadelphia advocates, tenant organizers, and policymakers recognized that eviction filings disproportionately occurring in majority Black neighborhoods undermined fair and equitable access to stable housing. The Renters’ Access Act, enacted in October of 2021, created a tenant screening policy providing guidelines for prospective landlords on how eviction records can be used when landlords review tenant applications. Under the RAA, before accepting a tenant’s application to rent a unit, landlords and property managers must provide all prospective tenants with uniform screening guidelines that specify what criteria will be used to evaluate their applications. The law prohibits tenants from being denied admission based solely on their credit score, tenant screening score, or the existence of an eviction record. If the prospective landlord rejects a prospective tenant’s application, the landlord is required to provide a written reason why the tenant’s application was rejected, along with copies of any third-party reports or information that a landlord used to make their decision. The Renters’ Access Act also prohibits landlords from considering certain criteria, including failure to pay rent or utility bills during Covid-19 emergency periods, and certain kinds of eviction records. The law also gives applicants the right to dispute inaccurate information or seek reconsideration in the case of mitigating circumstances, while requiring landlords to give time for consideration of new information. Additionally, the Renters’ Access Act contains an evaluation provision requiring that once every 18 months, starting in 2023, the city will determine the effectiveness of the law, the policy’s strongest design elements, and any potential areas of improvement.
  
• In 2020, City Council in Washington, DC recognized the need for an emergency policy to ensure tenants were protected from eviction due to existing and pandemic-related economic uncertainties. The DC City Council acted swiftly to keep local residents safely housed and adopted legislation banning evictions for tenants who owed less than $600. The policy also directed the DC Superior Court to seal eviction records after 30 days if the case ended in the tenant’s favor, or in three years if the judgment was in favor of the landlord. In early 2022, the DC City Council passed the Eviction Record Sealing Authority and Fairness in Renting Amendment Act of 2022 which retained and strengthened many of the policies that were passed in 2020 and includes provisions for both eviction record sealing and tenant screening. Additional protections include prohibiting landlords from considering previous eviction records as a factor when determining a prospective tenant’s application for housing. The policy also provides a mechanism for tenants to file a motion for their records to be sealed earlier than three years under certain circumstances (such as if a tenant faced a retaliatory eviction, or if the landlord and tenant entered into a settlement agreement that didn’t end in an eviction). In the early months of implementation, the Superior Court of the District of Columbia was able to seal and restrict public access to hundreds of thousands of eviction records.
  
• The Colorado legislature passed a statewide law in 2020 to prevent eviction records from harming the future housing prospects of tenants. The legislation requires that eviction records be concealed and the names of all parties involved be kept from the public until the end of an eviction proceeding, if proceedings end in favor of a tenant, or if both parties agree to seal the record. In 2022, advocates worked to support the passage of additional legislation that provides exceptions for attorneys to access court records with the permission of one of the parties included in the record, in order to provide legal advice or evaluate a client’s case for representation or mediation. Advocates in Colorado note that this law has worked well to suppress information or improve negotiations with a landlord when settling a case, but there is still a lack of clarity regarding the applicability of the law to older eviction records.