@Anthony Rosa - I was doing a recent Continuing Legal Education course on Real Estate Law in Virginia, and one of the presenters acknowledged the obvious - namely that Landlords are much more likely to be sued than a tenant and are more likely to be sued by a tenant rather than the other way around. The phrase he used to describe why that is? "Landlords have bigger pockets." Funny little coincidence. But yes, you can't draw blood from a stone, so people generally include in any suit the person who they think has the most money (e.g. someone who owns the house instead of the person renting it). Good to have an attorney on retainer who can help head that off with a scary letter (the highly technical term me and my lawyer buddies use for it is a "nasty-gram").
@Michael King - The technical name of what you're looking for (criminal history) is an "NCIC check." NCIC stands for National Crime Information Center, a section of the FBI, and they maintain national records of criminal histories. @Daryl Luc has the right way to do it, because only authorized law enforcement agents have access to it. However, it's only as well maintained as the states who upload the information. Crap in, crap out. You might also need the help of an attorney or law enforcement officer to interpret it, because it lists state codes, abbreviations of crimes, etc. Generally there is an "alert!" message on top that notifies of sex offender status, but even that is sometimes difficult to parse out unless you're very familiar with the state's laws. For example, some people only have to register for a few years (in some states it can be as little as one or three). So a former registrant may no longer have to do so, but that can be hard to tell.
In my day job, I prosecute a lot of sex crimes, including sex crimes against children (it's a very uplifting job and not at all the reason I drink so heavily). When I'm unclear if the statute that I'm potentially convicting an Accused of will translate into a registrable offense in the state where the Accused is moving, I just call the State Attorney General's office in the state where they live and ask them. They usually have somebody whose job it is to decipher that stuff, and they're often very helpful. That's some free chicken for you.
Another good way to find out about criminal history is to ASK on your tenant application. You can also ask, without fear, about their status as a sex offender. A tenant who lies about their criminal history or sex offender status on a rental application usually isn't very sympathetic in court. And you're doing your due diligence in trying to find out, so it potentially cuts against your liability.
I think what you bring up dovetails nicely into another consideration - that of having systems for your business. "But Thadeous," you'll say, "what does establishing systems for my business have to do with the law?"
What do you check for via tenant screening with each applicant? Do you have a checklist that you go through? I would recommend that you do.
Not only can that help fend off accusations of improper discrimination later on, but doing it the same way every time can allow your paper/digital records to be entered into evidence during a trial. At trial, an out-of-court statement being offered for the truth of the matter asserted is hearsay, and is generally inadmissible evidence. If you do something THE SAME WAY EVERY TIME ALL THE TIME as part of your BUSINESS PRACTICE, then that would fall into an exception to the hearsay rule known as the "business records exception." Suddenly you can introduce documentary/digital evidence in your favor. Isn't that advantageous?
That last bit is something literally nobody but me thinks about (because I've been trying cases in court for years now, so admissibility is always on my mind), but it definitely comes in handy to do business via systems in case you ever find yourself embroiled in a lawsuit.
@Steven Clark - I'll ask the bar for an advisory opinion on the propriety of rendering non-legal landlord advice in that way. I'm pretty sure I could do it. The question is whether there's an appetite for that kind of book in the market. Maybe BiggerPockets would publish it...what do you say @Mindy Jensen? I'll author it and charge very, very, unbelievably reasonable royalty fees. Probably only around 96%. And you, Steven, will get a shoutout in the "acknowledgments" section. Win-win-win. But seriously, Mindy, let me know.
@Andrew B. - that's another really great question! That's a lawyer mind, right there, looking for every possible legal danger lurking around the corner and not just assuming that everything will go well.
Bearing that in mind, let's take a peek behind the curtain from an attorney's perspective. I can tell you the following: It would be very unlikely that many lawyers would tell you in such situations "Nah, I'm sure you'll be fine" unless they are absolutely sure (either there is a statute on point or some case law backing up their position that already answered the question) that their answer is correct. An attorney who represents you has the job of protecting you from litigation, so there's an incentive to be extra cautious. @Scott Trench mentioned earlier above about the proliferation of attorneys who these days over-recommend Series LLCs. That's in part a result of Series LLCs being complicated to set up and thus more expensive and thus more money that an attorney can charge you, part a result of it being a shiny new toy that every attorney wants to try out and set up, and part a result of attorneys wanting to provide maximum, duplicative, redundant protections for their clients (no lawyer wants to be the one who assures their client that their LLC is foolproof or to say that their proposed course of action will be fine only to later watch that client lose their business, home, car, coin collection, etc.). Some attorneys, like some landlords, are shady and just want to run up the bill. Likewise, some attorneys, like some landlords, are super cautious and want to err on the side of caution.
How can you tell which one is which and that you're getting the best legal advice? Well, that's maybe way off topic and perhaps the subject of a potential blog post.
