Law Review: Sara Sternberg Greene et al., Getting to Home: Understanding the Collateral Consequences of Negative Records in the Rental Housing Market, 74 Duke Law Journal 269-352 (2024)

 

The United States faces a rental housing crisis marked by a scarcity of housing supply, leading to intense competition among prospective tenants. This crisis is a particular challenge for the more than one hundred million U.S. residents burdened with negative records such as criminal records, debts in collections, and evictions. Landlords have more access than ever to applicants’ information, yet little is known about how landlords process and think about these records to make housing decisions. This Article draws on theories of cultural sociology to provide a data-driven understanding of how landlords conceptualize the value of several types of personal records and what it means to use them legally and fairly. It offers a window into how decision-makers evaluate and ascribe meaning to records—including negative records, for which tenants can be denied housing—and how these meanings subsequently guide landlords’ rental decisions.

Through eighty-eight interviews with landlords, property managers, rental company executives, and tenant-screening company executives, this interdisciplinary, multistate study leverages comparisons across record type and organization size. It shows how access to housing largely depends on cultural understandings of the morality of different types of negative records.

Depending on the type of risk landlords perceive, they call upon different cultural archetypes when deciding how and why to include certain records in their decision-making. However, the processes by which landlords incorporate these cultural considerations vary by organizational size and stem from their perceptions of the law. This Article thus provides a key theoretical insight: Landlords operate with broadly shared cultural understandings about the nature of risk and the morality of various types of negative records, but with different conceptions of what it means to make rental decisions legally and fairly. Differences correspond with the structure and size of decision-makers’ organizations. This means that collateral consequences play out differently depending on the type of landlord a prospective tenant is dealing with. As part of this discussion, this Article further provides a novel understanding of how state and local data-use laws, as well as the Fair Housing Act, operate on the ground. Ultimately, the theoretical insights from this study can help inform housing policy going forward.

 

 

Of particular pertinence to consumer bankruptcy attorneys and the advice they give to their clients are the consistent comments from landlords,  for both large and small apartment management companies,  that "[p]eople who had filed for bankruptcy often fell into the category of being worthy of  understanding, or, at a minimum, worthy of a second chance."  This counters the fears that people have that they will not be able to find rental housing after filing bankruptcy,  which can often rear its head when clients later assert that no landlords  will rent to them because of bankruptcy.  My suspicion in those circumstances are either that the client is predisposed to assume that a denial of a rental application "must be because of my bankruptcy"  or that  prospective landlords might similarly use the objective fact of a bankruptcy (and again  cultural predispositions about bankruptcy)  instead of more subjective bases (or illegal  reasons)  for a denial to avoid a debate or argument.