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HAVE A PICTURE PERFECT POLICY WHEN ASKING FOR PICTURES...

by Nadine Greene

It is a common industry practice for leasing agents to ask prospects for some type of identification, with photo, to be left in the leasing office before taking them out to tour the various apartments. While there is nothing wrong with this idea in and of itself, companies should have definite policies and procedures in writing about this process. And companies are further cautioned that their leasing agents must properly administer this type of policy in order to avoid the misperception that there are any violations of fair housing laws taking place.

As with all policies and procedures, this one should be well thought out in advance and then put in writing. So as the song says, let’s start at the very beginning, a very good place to start:

Why do you require a photo ID in the first place? If photo IDs are going to be required of prospects, you should have reasons for doing this. Generally, for the multi-housing industry there are two reasons why photo IDs are required:

  • to provide some measure of protection for leasing agents who are going into vacant apartments with people whom they do not know (i.e. someone may be less likely to cause harm to a leasing agent knowing that their photograph has been left behind)
  • to provide documentation that applicants are who they say they are, so that you are verifying information such as credit reports and landlord history on the actual person who has made an application to live at your community

If these are your reasons, then write them down as the purpose or purposes of your policy. Someday you may need to document just why you asked someone to produce a photo ID.

Now that you have developed a reason, or the “why” of your policy, you need to detail the process thoroughly and in writing:

What is an acceptable form of photo ID? There is no single right answer to this, but there may be wrong ones. Do not so limit the list of what you will accept that you inadvertently leave out people who have standing in the protected fair housing classes. For example, a policy only accepting a driver’s license would preclude people with disabilities who do not drive. “Government issued ID” may be a standard, but whose government? Federal, state or local? What about IDs issued by a foreign government, such as a passport? Better accept them, since national origin is a protected class as well. Think through the list and then write it down as part of this written policy. It is a good idea to have the list posted or at least available in the leasing office so that prospects know what your requirements are not only for them but for everyone. One way to avoid unfounded claims of housing discrimination is to demonstrate clearly from the onset of the interaction with prospects that everyone is being held to the same fair standards.

Who has to provide you with the photo ID in order to be shown an apartment? Again, there is no right answer to this question, but it is important to establish the policy now and write it down. Some companies simply require that only one person in a multi-prospect group must provide a photo ID; other companies require that everyone in the group provide the identification. What is your preference? Again, think about it and write it down. And once again be sure that this part of the policy is consistently followed. What if three rather unkempt men come into the leasing office together to see apartments, but only two of them have photo IDs? If your policy is that everyone must show the identification, it is appropriate to decline to show an apartment to the third man. But be sure to also decline to show an apartment to an elderly parent who has come with a middle aged couple when that elderly parent has no photo ID. If you cannot support your leasing staff in turning away prospects who do not have the required identification then you need to either modify your policy on photo IDs or do away with it entirely. Leasing agents cannot exercise discretion in applying the policy based on how comfortable they may feel with the prospects; to do so would be to invite fair housing complaints or lawsuits from those with whom the leasing agents felt less comfortable and thus treated less favorably.

Can you make a photocopy of the photo ID to leave in the leasing office while you go out on tour? Your state or local laws may prohibit copying a government issued ID, but there is no fair housing law prohibiting such activity. So if it is OK to do this in your area, go ahead, but...

What do you do with the photocopy of the photo ID once you return safely to the leasing office? You either tear it up in front of the prospects or give it to them to take along with them when they leave. Do not, as many of you in the industry are still doing, staple or otherwise attach the photocopy of the photo ID to the guest card, traffic record, or application. Think about it this way: one of the largest settlements in a fair housing lawsuit was for $3.39 million dollars. The landlord allegedly misstepped in a number of ways, including a coding system on guest cards and traffic records by which he noted the race or skin color of prospects and applicants. Now, what is the difference between coding these documents or simply attaching a picture of the person which shows these defining characteristics (which cannot of course be the basis for any decision making on your part)? On the surface, there is no difference. And someone who misunderstands your actions, or who is otherwise motivated to bring a complaint or suit against you, could allege quite easily that you are using the photo ID photocopies as a form of coding. There is no business reason to have anything in your record that shows what prospects or applicants look like*. When they come back to sign a lease with you, if you need to verify their identity yet again, ask them to again present their photo ID. Once you have accepted them as residents, there are many good business reasons to then include their pictures in your lease files.

There are no surefire ways to insulate your companies and employees from fair housing charges or litigation, but there are ways to minimize the costs should you become involved with a problem. A good photo ID policy (meaning it is well thought out, written down and consistently followed) is a form of insurance that can help with damage control when you are wrongly accused of violating fair housing laws.

*One landlord has said that he likes to keep photocopies of photo IDs on file in case someone later on stalks a leasing agent or causes harm in some fashion. The photocopies are then a sort of “mug-shot” reference. This may be a valid point, but then be sure to keep them off site in the custody of someone (perhaps your lawyer) who does not in any way participate in your on-site activities or decisions, and keep them for a limited time only (perhaps 90 days).

Givens v. Hamlet Estates, No. 90-1908 (S.D.Fla. 4-10-95).


“Fair Housing Focus” is written by Nadine Green, Senior Counsel with For Rent Magazine®. The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.”

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