Legal Framework USA

Legal Framework For Rent Reporting In The USA

Summary1
 

FrontLobby provides a cloud platform for landlords and property managers to screen potential tenants, manage their tenancies, and a portal service to enable landlords, property managers and tenants to report rental history, including debts, to consumer reporting agencies (commonly known as Credit Bureaus) when desired (the “Platform”).

Under US federal law (i.e. the Fair Credit Reporting Act or “FCRA”), landlords, property managers and tenants can report rental history (positive and negative) to Credit Bureaus using the Platform. The FCRA does not require landlords and property managers to obtain consent to report such information.

State and local laws may contain further stipulations, in particular temporary prohibitions on reporting unpaid rent during the COVID-19 pandemic. Please confirm with your local landlord & tenant housing office.

Under federal requirements: Applicable privacy and consumer protection legislation enables landlords to report to Credit Bureaus without notice or consent, so long as the information provided is accurate and complete and tenants’ disputes of the accuracy of the furnished information is investigated as required by applicable law (which may also include state law obligations).

FrontLobby’s constant goal is customer protection and compliance. Please ensure the information you report is 100% accurate. If accuracy is in doubt, do not report it. FrontLobby handles the protection of all individuals and the security and accuracy of information processed using the Platform with the utmost priority. Misuse of the Platform will not be tolerated.

The Details
 

Responsible Tenants Benefit From Using FrontLobby:

FrontLobby provides significant benefits for our tenant members. Tenants can finally build credit by paying rent and create a Tenant Record to help them receive priority for future housing. Even if a tenant is having financial difficulty, as long as they communicate with their landlord and create a reasonable payment plan, they can still receive the same benefits.

Rent is many consumers’ largest single monthly payment, but to their detriment it is rarely reflected on their credit report:

  1. FrontLobby facilitates tenants to positively impact their credit reports through the inclusion of rent payments.
  2. FrontLobby assists consumers new to credit and new to Canada with building a credit file and gaining access to credit.
  3. FrontLobby enables consumers with thin credit files to positively impact their credit reports and thus unlock credit and better rates for credit.
  4. For tenants with poor credit, but a history of always paying rent, they find it harder to secure housing. FrontLobby enables them to show potential landlords that despite a low credit score, they are a responsible tenant and should be rented to.
  5. Relevant to COVID-19 and beyond, FrontLobby enables rent deferral agreements and payment plans to be registered which then enables tenants to create a positive tenant record that they can use when applying to rent in the future and still help strengthen their credit rating despite unexpected financial difficulties.
  6. From a housing supply and quality standpoint, FrontLobby helps increase the supply and quality of rental housing for responsible tenants. FrontLobby substantially reduces the risk and cost of delinquent tenants which encourages more rental housing to be created, enables smaller landlords to afford to continue providing rental housing (i.e. basement suites), and enables all landlords to afford more repairs & improvements and even reduced rent prices. The small percentage of individuals who are intentionally delinquent, cost the rental housing industry over $30 Billion per year in the USA which hurts the housing supply for everyone.

It is only tenants who choose to be delinquent and choose to not communicate with their landlord that will find there is accountability and consequences for such choices and for the problems they cause that negatively impact landlords and other tenants.

FrontLobby’s goal is for all parties to fulfill their responsibilities, act responsibly and for landlords and tenants to benefit as a result.

Landlords May Use FrontLobby To Report To Credit Bureaus:

It is well established practice for landlords to report tenant information to collection agencies and share that information with Credit Bureaus, such as Equifax, TransUnion and Experian for the purpose of collecting debts and mitigating fraud. Reporting to Credit Bureaus may happen indirectly through collection agencies or directly by large landlords. FrontLobby enables landlords of all sizes to report debts to Credit Bureaus and to be involved with reporting positive rental histories to benefit tenants.

The FCRA and consumer protection and privacy law enable landlords to report to Credit Bureaus without consent, so long as the information provided is accurate and complete and tenants’ disputes of the accuracy of furnished information is investigated as required by law.

FrontLobby does not maintain any “tenant lists”. FrontLobby facilitates the reporting of both positive and negative rental history to Credit Bureaus, enables free tenant access to Lease Records, and provides several dispute mechanisms.

As long as the information reported is accurate, the Platform has numerous automated protections and guidance in place which help ensure our landlord, property manager and tenant members are protected and that reporting and usage of the different services remains in compliance with relevant legislation.

Landlords May Screen Applicants Through FrontLobby:

The ability for housing providers to screen their applicants for rental history, credit and tenancy-worthiness and the practice of providing rental history references to other landlords is recognized as an accepted and established practice throughout the industry.

Landlords may view information from Credit Bureaus (e.g. Equifax, Landlord Credit Bureau) and background information from other third parties through the Platform in connection with the applicant wanting to enter into or renew a tenancy agreement. When landlords certify that they are accessing tenant records from FrontLobby for these limited permissible purposes and

satisfies FrontLobby’s requirements for credentialing, they do not need to get written consent from the tenant under US federal law, but may under some State laws. However, LCB requires landlords in every state to have obtained written consent prior to receiving any information in order to confirm they have a permissible purpose.

If a landlord rejects an applicant, increases the rent or deposit, requires a co-signer, or takes any other adverse action based on the records from a Credit Bureau, the landlord is required to give the applicant or tenant notice of that fact and the name of the Credit Bureau.

Accuracy Of Data:

Before allowing users to contribute data, FrontLobby verifies all user’s identification, using document submission and/or a secure process provided by Equifax. FrontLobby does not allow information to be contributed anonymously. FrontLobby only reports information from landlords and tenants who have had their identity and legitimate purpose verified.

Users contractually agree to only report factual information and to only use FrontLobby for a valid purpose, or risk personal liability.

FrontLobby also maintains a viewable record of anyone who contributes or views data.

Other Protections For Tenants:

FrontLobby proactively endeavours to notify tenants, provides free access to review records, and if information is disputed, there are multiple mechanisms in place to handle such disputes. FrontLobby will then investigate. Tenants may review and dispute information that a landlord has provided by submitting a dispute to FrontLobby or directly to the landlord. If the tenant disputes information directly to the landlord, the landlord and tenant may contact FrontLobby for assistance.

Further, tenants are provided a grace period before data is shared with Credit Bureaus, so that there is time to review the Lease Record, verify the accuracy of the information, dispute inaccurate information, and to pay any debts or agree to a payment plan.

Requests and disputes can be made by:

o Emailing support@frontlobby.com; or
o Mailing a request to:

Attn: FrontLobby Legal & Privacy
1900 W Gray St , Unit 130946
Houston, TX, 77019

Clauses to Add To Application and Lease Templates

 


FrontLobby recommends adding the clauses below to Applications for Tenancy and Lease templates:

Specific Federal Law Regarding Landlords Reporting to Credit Bureaus
 

Federal:

Consumer Reporting Agencies (CRAs) in the U.S. are subject to the Fair Credit Reporting Act (FCRA) and in some cases similar state laws.

Section 623 of the Fair Credit Reporting Act (“FCRA”), and the corresponding “Furnisher Rule” published by the Federal Trade Commission (“FTC”) and Consumer Financial Protection Bureau” (“CFPB”), enable landlords to furnish tenant information to LCB so long as such landlord:

  • Provides accurate and complete information; and
  • Investigates tenants’ disputes of the accuracy of the furnished information.

Pursuant to FCRA Section 623(a)(1)(D), a furnisher of information (such as a landlord) has “reasonable cause to believe” that information is inaccurate if you have knowledge, other than allegations from the consumer, that would lead a reasonable person to doubt the accuracy of the information.

Note that FCRA Section 623 and the Furnisher Rule impose additional obligations on information furnishers that may apply to landlords who report to LCB.

The platform assists users to comply with the above requirements but it is strongly recommended that all users read the guide accessible in the What Information Furnishers Need To Know summary guide.

For landlords using consumer credit reports

Further Discussion:

Consumer Reporting Agencies (CRAs) in the U.S. are subject to the Fair Credit Reporting Act (FCRA)2 and similar state laws. The law regulates consumer reporting agencies and “consumer reports” which are generally defined as certain information about individuals used to determine “eligibility” for consumer-initiated transactions.3 This definition includes credit and financial transactions but also rental history used to determine whether someone is eligible for a tenancy.4

FCRA defines “Consumer Report” as follows:

(1) In general. The term “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for

(C) any other purpose authorized under section 604 [§ 1681b].5

Section 604 is the Permissible Purpose section listing all the authorized purposes for which a consumer report can be provided. The relevant section is:

(a) In general. Subject to subsection (c), any consumer reporting agency may
furnish a consumer report under the following circumstances and no other:

(2) In accordance with the written instructions of the consumer to whom
it relates.

(3) To a person which it has reason to believe:

(F) otherwise has a legitimate business need for the information

(i) in connection with a business transaction that is initiated by the consumer;6

A consumer report is any information that bears on the listed factors. Whether someone pays their rent clearly bears on credit standing as well as a number of the other factors. Other than information that is over a certain age,7 and information that discriminates on a prohibited basis,8 there is no restriction in FCRA or in any other law as to the information that may be in included a consumer report.

The Federal Trade Commission (FTC)9 has stated that rental data can be included in consumer reports:

“Reports about rental experiences such as consumers’ evictions, rental payment histories, or treatment of premises are consumer reports, if provided by a CRA, because they relate to the consumer’s “character, general reputation, personal characteristics, or mode of living.”10

The FTC opinion assumes that rental information is furnished to a CRA and then constitutes a consumer report when issued, which is subject to FCRA.

In the Fair and Accurate Credit Transactions Act of 2003 (FACT Act), Congress required the FTC to study:

whether there are any common financial transactions that are not generally reported to the CRAs, but that would provide useful information in determining creditworthiness, and what actions might be taken to encourage greater reporting of these transactions.11

Congress was concerned that some consumers with little credit history are missing out on the credit economy because they do not have robust credit reports. Congress wanted the FTC to study whether including “non-traditional” information would help consumers. The FTC concluded in its study:

The report concludes that there are common underreported transactions that could be useful in evaluating creditworthiness – in particular, rental payments and utility payments. It also concludes that there are certain barriers to reporting these payments that may or may not hinder efforts to encourage greater reporting. For rental payments, the main barrier appears to be the diffuse rental market and the lack of centralized data collection, which could be difficult to change. For utility payments, the barriers appear to be cost, some state privacy laws, and possible disincentives created by state regulatory systems. To the extent that state regulatory systems create barriers, these would need to be addressed at the state level. Despite these barriers, there are private sector efforts underway to capture and report this type of data. These efforts are still at the beginning stages. As they develop, the FTC will continue to monitor these efforts to determine whether they succeed in providing greater access to information about common unreported transactions.12

The FTC has issued guidance for tenant screening companies.13

There is no federal law that requires the consent of a consumer to permit a landlord or property manager to report any information to a CRA.

The Consumer Financial Protection Bureau (CFPB) is charged with enforcing FCRA and issues a list of CRAs.14 Included in the list are Tenant Screening Companies. The CFPB also added the following consumer advice:

If you are applying as a tenant for a residential property, ask the management company for the name(s) of consumer reporting company it will be using to screen you. Contact the screener(s) to fact-check your information and dispute suspected inaccuracies as needed. A tenant screening report with negative information in it, such as prior housing evictions, could result in a rejected lease application, or it may get approved but with tough conditions inserted into the lease agreement such as requiring you to pay twelve months of rent in advance. If a landlord refuses to rent to you or charges you more because of something in a background check, be sure to know your rights.15

The “rights” referred to are listed in a CFPB blog that includes this statement:

Landlords can check your credit, criminal history, and even your rental history. They may ask your permission but they’re not required to.16

CRAs are not required to register with any government authority. The CFPB list of CRAs is developed by it. The CFPB list of CRAs is qualified as follows:

This list is current as of January 2020. It includes entities that have identified themselves as consumer reporting companies or have indicated they provide consumers access to their personal consumer reports when requested. The list incorporates information from the companies’ own self-descriptions that has not been independently verified by the Bureau. This list does not cover every company in the industry. It is not intended to be all-inclusive. Nor does it reflect determinations as to whether any particular entity is subject to the Fair Credit Reporting Act. Furthermore, presence on, or absence from, this list does not indicate whether the consumer reporting company is subject to the Bureau’s supervisory or enforcement authority. 17

 

1 Disclaimer: The information contained herein does not constitute, and is not intended to constitute, legal advice. This information is for general information purposes only. Information may not be the most up-to-date or address local requirements (e.g., city or state). This document contains third party links, LCB is not responsible for the content on such third-party websites.

2 15 USC 1681 et seq.

3 15 USC 1681a(d)

4 See https://www.ftc.gov/sites/default/files/documents/reports/40-years-experience-fair-credit-reporting-act-ftc-staff-report-summary-interpretations/110720fcrareport.pdf, P. 48 3(B)

5 15 USC 1681a(d)(1)

6 15 USC 1681b

7 15 USC 1681c

8 15 USC § 1691 et seq.

9 The FTC regulates consumer reports by tenant screeners and tenant screening companies. The CFPB regulates financial companies and FCRA. The two agencies coordinate their interpretations of the law.

10 https://www.ftc.gov/sites/default/files/documents/reports/40-years-experience-fair-credit-reporting-act-ftc-staff-report-summary-interpretations/110720fcrareport.pdf (P. 22)