by Esme Caramello and Annette Duke
“If I see that a prospective tenant has ever had a lawyer in any proceeding at http://www.masscourts.org as of this case forward I no longer take them as a tenant. This is a free country. They certainly have a right to hire a lawyer and I have a right to not take them as tenants because of that.” Massachusetts Landlords Blog, June 12, 2015.
The Trial Court’s Electronic Case Access system (MassCourts) was not intended to be a direct, online “free tool for tenant screening.” But that is how it is increasingly being promoted and used:
“After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types…. This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case.” The Massachusetts Real Estate Law Blog, “ Massachusetts Housing Court and Tenant Eviction History Now Online,” April 24, 2013 (emphasis added).
While careful, conscientious tenant screening can help landlords avoid problems with new tenants, the automatic refusal to rent to anyone whose name appears in an online court database is a dangerous form of tenant blacklisting. Tenants are sometimes forced by absentee or unscrupulous landlords to access the courts to protect their families from unsafe conditions. For example, one tenant, 8½ months pregnant and shoveling the walkway in front of her unheated apartment, turned to the court to force an unresponsive bank that owned her building to pay its bills and maintain the property. Another faced a retaliatory eviction lawsuit after reporting a building-wide bedbug infestation affecting the health of her neighbors, families, and friends. Still another was brought into court after her landlord discovered she had a female partner. Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
While some landlords undoubtedly look beyond the mere fact of a tenant’s appearance in MassCourts to the actual “Disposition” or docket itself, even this increased level of scrutiny may not elicit an accurate picture of a tenant. MassCourts was not designed as a tenant-screening tool. It is a case management database built to assist the court system in managing litigation, and it uses shorthand that suffices for that purpose. It does not tell the real story behind any landlord-tenant dispute. Most summary process dockets, for example, ultimately reflect a judgment for the landlord. This does not equate to a finding the tenant was at fault. The vast majority of tenants are unrepresented, and the few who are lucky enough to access legal assistance often do not agree to have a judgment enter against them, but instead secure dismissal of the case or a straight agreement (with no judgment of eviction) in which the parties make commitments to each other, such as payment of rent in exchange for repairs.
To make matters worse, there are inaccuracies in the MassCourts database. For example, a review of housing cases closed by the Harvard Legal Aid Bureau in 2013 showed that in nearly 10% of the cases, MassCourts incorrectly displayed a judgment of eviction against the tenant when there was none. In MassCourts, “no-fault” evictions are sometimes miscoded as “cause” cases. Cases that have been dismissed may appear as open, active cases or even judgments in favor of the landlord. Minor children may erroneously appear as parties in their parents’ eviction cases, potentially hurting their creditworthiness before they have a chance to enter the adult world. MassCourts remote access takes these errors and turns them into major barriers to housing, with no way for a tenant to even know that this information is being used by a landlord and no clear way to challenge its accuracy.
Other states have recognized the problems with court-enabled tenant screening and scaled back access. For example, in 2012, the Chief Administrative Judge of the New York State Office of Court Administration announced that the court would no longer include in the electronic data feed it sold to tenant screening companies the names of tenants involved in New York City Housing Court evictions. See Hon. Gerald Lebovits and Jennifer Addonizio, The Use of Tenant Screening Reports and Tenant Blacklisting, New York State Bar Association (2013). Applauding this action “to protect both New York’s tenants and the integrity of the court system,” one legislator explained: “When the fear of being ‘blacklisted’ causes many tenants to avoid the court and relinquish their legal rights, access to justice is fundamentally undermined.” Sen. Krueger Announces Courts to End Electronic Sale of Housing Court Data Used in “Tenant Blacklists” (2012).
Massachusetts, through the Trial Court Public Access to Court Records Committee, can and should implement safeguards that protect tenants without impairing the public’s right to open courts. A very limited change to how party identification information is displayed online could counteract the misuse of MassCourts: tenant names should be replaced with numbers or initials in the online database. Parties and attorneys would still be able to access case information online with docket numbers. The official case record would still be public, would still include parties’ names, and could be accessed by going to court. This change would balance protecting tenants’ rights with keeping court records public.
With 40,925 eviction cases filed in Housing and District courts across the Commonwealth in FY 2014 alone, the easy, online use of MassCourts as a free tenant screening tool has become a serious access to justice issue. Without reform, tenants will increasingly fear that the consequences of coming to court will be that they won’t be able to find housing in the future, and they will not see courts as a place to seek justice.
Annette Duke is a housing attorney at the Massachusetts Law Reform Institute, a statewide nonprofit poverty law and policy center. She specializes in public housing and landlord-tenant law and is currently working with the Massachusetts Access to Justice Commission and a broad coalition of organizations to expand housing courts statewide.
Esme Caramello is the Faculty Director of the Harvard Legal Aid Bureau, a century-old student-run legal services organization that represents low income clients in housing, family, wage and hour, and government benefits cases. She is also a Clinical Professor at Harvard Law School, where she teaches courses in housing law and policy and legal skills and ethics.