Ubi jus ibi remedium. “Where there is a right, there is a remedy.”

I have read your column for quite awhile, and I look forward to it every week. I have a question that might be outside of your typical coverage, but it might also be helpful for your readers. I have been looking for my own apartment in Oakland for several months, but I think my question would apply for San Francisco as well (and Marin, and the South Bay.)

I know through my research that there is a limit to the amount that a landlord may charge for an application fee/background check, and I believe it is currently $44.21. My research into California laws has also led me to believe that if a landlord does not actually perform a background check on me, or does not otherwise process my application, then s/he must refund it, otherwise it is illegal to accept the application fee payment. (An example would be, if the landlord accepted an application before me, processed it, offered the apartment to that person, and they accepted, thus my information was never looked at.) I always thought that this was the reason that landlords asked for checks, so that if an application was not processed, they would just not cash the check.

However, I have been coming across apartments that request an application fee be paid in cash or cashier’s check. Is this legal? I subscribe to Experian, so I can see when my credit is checked, and I’m in regular contact with my references, so I would know if this information was followed up on.

Do I have any recourse if I can tell that there was never a background/credit check performed on me, or do I have to just accept that there might be landlords out there collecting application fee payments on top of their already-guaranteed rent? I appreciate any thoughts you may have on this matter.

Rental application fees are governed by California law, therefore the comments I make here will apply to anyone in California who is looking for an apartment.

California Civil Code §1950.6 governs the collection of screening fees. In 1998, the fee to screen an applicant’s credit, etc. was capped at $30.00 with annual adjustments pegged to the Consumer Price Index. In 2012, he most a landlord could charge to screen an applicant’s credit was $44.51.

You are correct that the law provides that a must refund the fee if “the landlord or his or her agent does not perform a personal reference check or does not obtain a consumer credit report…” (Civil Code §1950.6(e).)

While the the law does not prohibit the collection of a cashier’s check or cash, it does provide, “The landlord or his or her agent shall provide, personally, or by mail, the applicant with a receipt for the fee paid by the applicant, which receipt shall itemize the out-of-pocket expenses and time spent by the landlord or his or her agent to obtain and process the information about the applicant.” (Civil Code §1950.6(d).)

Check out the California Department of Consumer Affairs article “Looking for a Rental Unit” for more detailed information.  Their advice:

Before you pay the application screening fee, ask the landlord the following questions about it:

• How long will it take the landlord to get a copy of your credit report?
• How long will it take the landlord to review the credit report and decide whether to rent to you?
• Is the fee refundable if the credit check takes too long and you’re forced to rent another place?
• If you already have a current copy of your credit report, will the landlord accept it and either reduce the fee or not charge it at all?

If you don’t like the landlord’s policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing.

One way to avoid the fee is to get a copy of your most recent credit report before you begin to search for apartments. Under federal law you are entitled to a copy of your credit report annually from all three credit reporting agencies – Experian, Equifax. and TransUnion. Each of the companies have their requirements to obtain one. Here is an example from Experian.

You can print out the report and provide copies to prospective landlords when you apply for apartments. I’ve done this in the past without a problem. I tend to think that a landlord who insists upon charging the fee despite your offer of a recent report, is either scamming you or such a Cheese Ball that you wouldn’t want to rent from him anyway.

Last week I talked to a tenant who told me that the leasing agent for an apartment in San Francisco wanted to charge $500.00 for a screening fee. My advice? Don’t pay. Get as much information as you can to prove the allegation and report the guy to the District Attorney. If you’re standing in a line to apply for an apartment with a bunch of other folks (typical these days) and the agent is collecting $500.00 a pop, flag down a cop.

While that may work when a landlord is blatantly running a con game, what if the landlord charges $50.00 per application or does not refund your fee after he fails to collect the information? Do you have any recourse if the landlord violates Civil Code §1950.6? Just like the Department of Consumer Affairs said, you can walk away or while you’re in line, negotiate a written agreement to get a refund.

You may wonder, what kind of bullshit, namby-pamby advice is that?

It’s the only kind of advice one can offer when the namby-pamby, bullshit law does not contain a remedy, a penalty for its violation.

Reread the statute.  Note that it doesn’t provide a tenant with any recourse to enforce it. Could it be that the legislators who drafted and passed the law wanted to appear to be reformers while still guaranteeing  one more illicit income stream for their landlord benefactors?

Some lawyers are familiar with this Latin phrase: Ubi jus ibi remedium. “Where there is a right, there is a remedy.” Conversely, where there is no remedy, there is no right. Get it? You’re a tenant not a lord.