April 28, 2023:- As part of the applicant screening process, landlords are able to look at masscourts.org, a site that enables the public to search for civil lawsuits. There they can find out whether rental applicants have been involved in any court proceedings, including summary process (eviction) cases and cases where tenants have sued their landlords.
If an applicant has been the defendant in several eviction cases for nonpayment of rent, the landlord may worry that the person may not be a reliable tenant. May the landlord safely reject the applicant for that reason alone?
I would counsel caution. Although I have not seen any Housing Court rulings on this topic, let alone any appellate-level decisions, I think that rejecting an applicant on the basis of having been the defendant in a summary-process case could be unlawful. Why? Because it might constitute reprisal.
Sword and shield
Reprisals against tenants are unlawful. The relevant Massachusetts statute, G.L. c. 186, § 18, prohibits “any person or agent thereof” from taking reprisals against tenants because of the tenants reporting or complaining about suspected violations or because of the tenants trying to enforce any law, regulation, or bylaw that regulates residential premises. For example, if the conditions in a dwelling fall below what the State Sanitary Code requires and the tenants complain to the board of health, any act of reprisal against the tenants will give the tenants the right to sue for damages.
The rationale is clear. If landlords can evict tenants who complain about sub-standard conditions, tenants will be more likely to put up with bad conditions out of fear of losing the house or apartment. This would cause quality of rental housing to deteriorate. The law’s goal is to protect tenants who complain and thereby encourage landlords to respond to complaints by repairing the bad conditions so that the quality of rental housing to improve.
This law usually comes up when a landlord has taken tenants to court for nonpayment of rent.
If a landlord starts a nonpayment case, the tenants will have a defense if they can show that the reason they were not paying rent was the bad conditions in the dwelling. This defense does not appear in c. 186, § 18, by the way, but in a different statute, namely G.L. c. 239, § 2A. Again, the rationale for this law is obvious: It encourages landlords to respond promptly to conditions complaints so that the tenants will resume paying rent. In the context of a nonpayment eviction, therefore, the law against reprisal operates as a shield.
But reprisal can also serve as a sword, enabling the tenants to go on offense and sue, even if nobody is trying to evict them.
Is it only the tenants’ current landlord who is vulnerable to a lawsuit for reprisal?
No, at least not if my reading of the statute is correct. By prohibiting “any person” from taking reprisals, section 18 encompasses not only the landlord who tries to evict the tenants but also anyone else who retaliates against the tenants, including (arguably) a person who decides not to rent to them because of their exercising those legally-protected rights vis-à-vis their previous landlord.
Let’s say I’m a landlord with a vacant unit and a couple responds to my advertisement by submitting an application. They have great credit and the ability to pay the rent. Before I invite them to a viewing, I check out masscourts.org and learn that one of their previous landlords filed an eviction case against them for nonpayment of rent. So I decline to take their application any further and wish them well with their housing search.
But if the applicants had been withholding rent because of bad conditions (as the law permits them to do) and their landlord — instead of bringing the place up to Code — tried to evict them anyway, I will be depriving this couple of housing solely because they exercised a legally-protected right. In rejecting their application, I am retaliating against them just as surely as their landlord did. If the couple figure out my reason for rejecting their application, could they sue me for reprisal?
I am not a landlord and this is a hypothetical situation. But it is not one that I would like any of my landlord clients to confront in real life.
What to do
Landlords can use information about previous civil cases without engaging in reprisals. Think about the Criminal Offender Registration (CORI) database, for example.
Some landlords ask applicants to authorize them to run CORI checks as the last step in the application process. The regulations that govern CORI checks (803 CMR 500) allow landlords to do that, so long as they abide by some basic, sensible rules. If the CORI check produces a result, the landlord has to let the applicant know and provide an opportunity to dispute it. A landlord is not allowed to assume that the CORI result is accurate and reject the application for that reason.
This seems like a practical model for how landlords should to treat civil cases. If a landlord learns that the applicants were defendants in a nonpayment case, the landlord could review the court filings. What did the applicants file in response to the previous landlord’s complaint for nonpayment? If the tenants did not file an answer with counterclaims, it might seem reasonable to believe, for the time being, that the tenants had not been withholding rent because of bad conditions. Think of that as a working assumption, and nothing more.
The landlord should still ask the applicants for their side of the story. Perhaps the case settled even before the applicants needed to file an answer, because the Housing Court Specialist examined the Health Inspector’s report (yes, the applicants had called the board of health, which you would not necessarily know just by looking at the list of court filings) and explained how the judge would probably rule. At that point, the plaintiff landlord agreed to waive the arrears and dismiss the nonpayment case, and the tenants agreed to move out and move on.
On the other hand, perhaps the applicants were elective nonpayers, the polite term for tenants who choose not to pay rent and opt instead to game the system by forcing the landlord to file an eviction case, drag out the proceedings as long as they can, then — with the landlord having reached the end of a very long tether — agree to leave so long as the landlord pays them off. Such cases are real, and not as rare as one would wish.
But it would be a mistake to presume that all summary-process defendants are elective nonpayers until proven otherwise. Merely seeing that applicants have been defendants in a summary-process case tells you nothing about why. A presumption of guilt is not only unfair, but also legally hazardous as a potential act of reprisal, in my opinion.
Landlords are free to use masscourts.org as one tool in the applicant-screening toolkit but should bear in mind the risk of being sued for unlawful reprisal. If applicants show up in the court records, landlords should not treat the fact as conclusive evidence that the applicants would be bad tenants and automatically reject the application. Instead, landlords should find out more about the case, both from the court filings and from the applicants.