Can you ask renters about immigration status?

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Q: I normally do not ask my applicants whether they are legally in the U.S., but one of my tenants says I should, because if I rent to people who are here illegally, I could be charged with harboring illegals. Is this a realistic worry? –Paul N.

A: A person is guilty of harboring when he knows that a person is illegally in the country (or he recklessly disregards clear evidence that points to this conclusion), and takes steps to conceal, harbor or shield the person from detection (or attempts to do these things), in any place, including a building or a means of transportation — see 18 U.S. Code Section 1324(a)(1)(A)(iii).

As you can see, the crime requires first of all that you know the person is in this country illegally, or that you recklessly disregard clear evidence that points to this conclusion.

From what you’ve told me, you don’t have that knowledge, because you don’t question them; nor have you described any facts supporting this conclusion that you are willfully disregarding.

Because you have no knowledge — actual or constructive — it’s hard to imagine a U.S. attorney filing federal criminal charges against you for unwittingly renting to people who are in the country without legal status.

Let’s take your question a bit further. Suppose you do know that an applicant is in the U.S. without legal status, but rent to him anyway. Now we get to the "harboring" part: Is your decision to rent, without more, a violation of the law?

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Probably not, although the precise definition of harboring varies among the federal appellate courts. One court holds that the conduct must "substantially facilitate" the alien’s remaining in the country illegally, or be some act of obstruction that prevents authorities from discovering the alien’s presence.

Simply renting an apartment, without more, hardly qualifies as preventing the government from discovering the alien’s presence. In fact, by giving him a permanent and open place to live, you’ve made it easier for the feds to find him.

You may recall the effort among several cities, starting with the city of Hazelton, Pa., to require landlords to verify legal status before renting a residence. All such ordinances have either been struck down or withdrawn, and no current law requires that a landlord ask such questions (in California, there’s even a law forbidding inquiries into immigration status).

You’re much better off to focus on "good tenant" criteria such as steady employment, good references, and an income that can support the rent.

If someone who’s here illegally does not have steady employment, you may certainly reject on that basis, but the important thing is that your rejection be grounded on sound business reasons, not on immigration status alone.

Q: I rent an apartment to two tenants who have asked to be let out of their lease. They’ve suggested a replacement tenant, who appears to be acceptable. What’s the best way to end this tenancy and begin the next one? –Ivana B.

A: From your current tenants’ point of view, the best thing for them would be for you to terminate their lease and start fresh with a new tenant, as if they had stayed until the end of the lease term.

That option completely severs the relationship you have with the current tenants, and leaves them without any responsibility for rent for the rest of the lease term.

An alternate approach would be to assign the current lease to the new tenant. This approach has a possible upside for you: In an assignment, the assigning tenants (the ones who are leaving) remain in the picture as guarantors of the new tenant’s financial performance.

In other words, if the new tenant defaults on the rent, you can look to the old tenants for that rent payment, for as long as the original lease runs.

Keeping departing tenants on the financial hook for the financial obligations of their substitute can be very handy, as long as the right circumstances are present. You’d need to make sure that you could find and sue, if necessary, these departing renters.

If they’re leaving for a stint in the Peace Corps, in practical terms you won’t be able to enforce this obligation, and it will be rather useless. On the other hand, tenants who are leaving because they’ve just bought a house across town will be easy to locate, serve and sue; they have the potential to be useful guarantors.

This analysis puts the cart before the horse, however. You write that the substitute "appears to be acceptable." Don’t make decisions on appearances — do your homework and check this person out, with a credit check and a full rental application.

No amount of chasing down ex-tenant-guarantors can compensate you for damage or general headaches that a hastily chosen replacement can inflict.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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