Skip to main content

FCRA Remedies When Criminal Records Lead to Rental Denials

Clients denied housing based on a background check report may have a claim under the Fair Credit Reporting Act (FCRA). The reporting of criminal background information to prospective landlords is a “permissible purpose” under the FCRA—background screening companies can report non-conviction information that is less than seven years old as well as criminal convictions no matter how long ago they occurred. See NCLC’s Fair Credit Reporting §

But the reporting of certain erroneous or obsolete criminal history information may give rise to FRCA claims against background screening companies because they are consumer reporting agencies (CRAs) under the FCRA. See NCLC’s Fair Credit Reporting § 2.7.3. Even if a tenant screening company does not maintain its own database of criminal record information and instead relies on third-party data vendors to run background searches, the screening company is considered a “reseller” and is therefore still treated as a CRA subject to the FCRA. See NCLC’s Fair Credit Reporting § 2.6.3.

This article discusses common issues involving criminal record reporting and tenant screening that may give rise to claims under the FCRA, and it provides practical guidance for obtaining relief. For purposes of this article, the terms “background screening” and “tenant screening” are used interchangeably.

Major Tenant Screening CRAs

The CFPB releases an annual (non-exhaustive) list of CRAs subject to the FCRA. Some of the major tenant screening CRAs are:

  • Leasing Desk (a RealPage, Inc. product);
  • RP On-Site, L.L.C. (a RealPage, Inc. product);
  • AppFolio, Inc.;
  • RentGrow, Inc./Yardi
  • SafeRent Solutions, L.L.C. (formerly CoreLogic Rental Property Solutions, L.L.C.);
  • Transunion Rental Screening Solutions (TURSS)/TransUnion SmartMove;
  • Experian RentBureau;
  • TurboTenant;
  • First Advantage;
  • National Tenant Network.

Common Types of Tenant Screening Errors Concerning Criminal Records

The Wrong Person. An applicant’s tenant screening report may include criminal records belonging to a different person, referred to as a “mismatched report.” This type of error often results from background screeners’ use of unsophisticated or over-inclusive criteria to match applicants with their criminal record information, along with their failure to use other available information to verify that the criminal record in fact belongs to the rental applicant. For example, background screeners often match information in criminal record databases by relying only on the applicant’s first name, last name, and date of birth. But even where the name and date of birth match, false positives are common.

Furthermore, background screeners’ use of so-called “fuzzy algorithms” increases the number of false matches. One type of “fuzzy match” occurs when background screeners include the criminal records of people with similar names to the rental applicant (e.g., a rental applicant named Robert would be matched with the criminal records of people named Roberto, Roberta, Rob, Bob, and even people whose middle name is Robert). Other common “fuzzy match” examples are partial date of birth matches, where the month and year match, and “age” matching, where any date of birth within a one-year range is considered a “match.” See NCLC’s Fair Credit Reporting § (public records matching).

Incomplete or Misleading Status of Criminal Proceedings. Reporting on the accurate status of a criminal proceeding requires regularly checking the original source data at courthouses. Tenant screening companies typically do not search courthouse records each time they conduct a background check, and instead rely on databases of this information that may not be regularly updated. A tenant screening company thus may report an arrest or a criminal charge, but not a subsequent dismissal or acquittal, for example. NCLC’s Fair Credit Reporting § 4.3.5 (errors in public records reporting).

Misclassified Offenses. Screening reports commonly miscategorize offenses, such as categorizing a misdemeanor as a felony, or a traffic ticket as a misdemeanor. This occurs because, after retrieving criminal record information, the tenant screening company must then sort the records into categories. At this point, screeners sometimes inaccurately categorize the records, often due to a misunderstanding of how a particular state reports and classifies criminal record information. NCLC’s Fair Credit Reporting § 4.3.5 (errors in public records reporting).

Duplicate Criminal Records. A tenant screening report may list a single arrest or incident multiple times, wrongly suggesting that the applicant has committed multiple offenses. For example, when a tenant screening company relies on multiple databases of criminal record information, the company may treat the same offense listed in each database as a separate offense. Similarly, the tenant screening company may report various stages of the same offense as separate offenses. See NCLC’s Broken Records Redux: How Errors by Criminal Background Check Companies Continue to Harm Consumers Seeking Jobs and Housing (pt. III.B.iv “Misleading Reporting”).

Expunged Records. Nearly all states provide remedies to limit dissemination of criminal record information. They do so under a host of names, including expungement, sealing, clearing, set-aside, and pardon. Here, the term “expungement” is meant to encompass all such remedies. Unfortunately, tenant screening companies commonly report expunged records. The reporting of expunged records often occurs due to tenant screeners’ and records vendors’ failure to regularly update their databases to remove these records. See NCLC’s Zombie Records: How Sealed or Expunged Court Records in Tenant & Employment Screening Reports May Illegally Cost People Jobs & Housing.

Obsolete Criminal Records. Background screeners can only report non-conviction records for seven years. Non-conviction records include arrests, criminal complaints, warrants, indictments, parole, probation, and other various possible dispositions besides convictions. See NCLC’s Fair Credit Reporting § The seven-year period for arrest records starts from the day of arrest. Arrest warrants that are still outstanding can be reported beyond seven years, however. See NCLC’s Fair Credit Reporting §

Nuances About Reporting of Criminal Convictions. The FCRA allows background screeners to report conviction records indefinitely. However, bear in mind the following nuances:

  • Some records that may seem like convictions are not. For example, an “adjournment in contemplation of dismissal” may not be a conviction depending on state or local law. A traffic offense or other violation also may not be a conviction. And community service may be ordered even when there has not been a conviction.
  • On the other hand, some records that do not seem like convictions might be treated as convictions under the FCRA. In Aldaco v. RentGrow, Inc., 921 F.3d 685 (7th Cir. 2019), the Seventh Circuit held that federal law, rather than state law, determined whether a sentence of six months’ supervision and subsequent dismissal of a charge was a “conviction” under the FCRA, and the court held that it was a conviction. See also NCLC’s Fair Credit Reporting § This means that, at least in the Seventh Circuit, even when state law provides that a record is not a conviction for certain purposes, background screeners still may be able to report that record indefinitely.
  • Pre-1996 state laws can limit reporting of criminal convictions. Although the FCRA allows background screeners to report criminal convictions indefinitely, certain state laws limit their reporting to a certain number of years. A state law on this issue that was not in effect before September 30, 1996, is preempted by a 1996 FCRA amendment. See NCLC’s Fair Credit Reporting §
  • If a conviction is reported inaccurately, it might violate the FCRA’s accuracy requirements, even if not its obsolescence prohibitions.

Wrongly Dated Criminal Records. Even when a criminal record is not obsolete under FCRA or state standards, it is still erroneous to report a criminal record as being more recent than it is.

Six Steps to Obtaining Relief for Clients

  —Step 1: Obtain the Tenant Screening Company’s File on the Consumer and the Background Screening Report That Was Sent to the Landlord

If a landlord takes an adverse action based on information contained in a tenant screening report (such as denying the application), the FCRA requires the landlord to provide the rental applicant with the name, address, and telephone number of the tenant screening company that furnished the report. There is no FCRA private right of action if the landlord fails to comply, but a follow-up request informing the landlord of their legal obligation to produce this information may be successful, even if the landlord does not provide it initially.

Use this information to request a copy of the client’s “file” from the tenant screening company. The FCRA requires the company to provide it. See NCLC’s Fair Credit Reporting § Some screening companies may try to claim they are not required to make a file disclosure because they do not store information about a consumer, but instead assemble information from other sources when a landlord requests a tenant screening report. This argument should fail, because the screening company’s disclosure obligations do not depend on the information’s location. See NCLC’s Fair Credit Reporting § 3.6.3.

Certain tenant screening companies may impose a forced arbitration clause when consumers obtain a file disclosure via their website, so it is generally better to request a file disclosure by mail. Some tenant screening companies are considered “nationwide specialty” CRAs and must provide one free disclosure annually. NCLC’s Fair Credit Reporting §

The file that the screening company provides should contain not only the criminal record information that the company associates with the rental applicant, but also the identity of the data vendors that were the sources for this criminal record information. These vendors are also arguably CRAs that must comply with the FCRA. In addition, the file may include credit and/or eviction history information and should state which landlords received the report within the last year. This will be helpful, particularly in making sure that landlords with many other units in the area receive a corrected report after the client disputes the report’s accuracy. NCLC’s Fair Credit Reporting § 3.6.

The screening company’s “file” on the client is not necessarily the same as the tenant screening report that the company sent to the landlord. Unlike the file, the report the landlord receives may be based on particular screening criteria the landlord provided to the screening company (or worked with the screening company to develop). In addition, only the landlord’s version of the report may contain a recommendation about whether to deny the rental application (which may help establish causation).

Tailor the language of a request depending on the client’s circumstances. If the client knows what is on the report (for example, the leasing agent showed them a copy in the rental office, or they saw it online but they no longer have access to it), a broad file disclosure request is the best option. If you need to see the version of the report that was provided to the landlord, it may be more helpful to specify in the request that the consumer is seeking “a copy of the report provided to [landlord] on or about [date].” (Note: A request worded in this way may not trigger the screening company’s statutory obligation to disclose the tenant’s “file,” and therefore may not give rise to a cause of action under FCRA § 1681g, as discussed in “Step 6,” below.)

The FCRA does not require a screening company or landlord to give a copy of the report that the landlord received to the rental applicant. However, the tenant screening company also cannot prohibit a landlord from providing the rental applicant with a copy of the report. NCLC’s Fair Credit Reporting § Some screening companies may give the landlord and the rental applicant access to the report simultaneously through their online system. Even if you are unable to obtain a copy of the tenant screening report that was provided to the landlord, the information in the screening company’s file can help you identify errors and omissions regarding the client’s criminal record information.

  —Step 2: Compare the Background Screening Report with Courthouse Records

Next compare the criminal record information in the tenant screening report (or file) with records from the relevant court. Best practice is to submit a documented formal records request through whatever process the particular court uses and to obtain a formal response, certified if possible. The court records should include the proper classification of a conviction (e.g., a misdemeanor or felony) as well as disposition information (e.g., that a charge was dropped or resulted in an acquittal). For expunged or mismatched records, you may be able to get a letter from the court stating that there are no records on file for a person with your client’s name and date of birth.

  —Step 3: Dispute the Erroneous, Incomplete, or Obsolete Information

A client should dispute any erroneous or otherwise improper information in their tenant screening report. Although not required by statute, the best practice for the client is to request the reinvestigation in writing rather than by telephone or via an internet dispute. If the client has already disputed the information by telephone, it is advisable to follow up with a written confirmation.

The dispute letter should include the client’s:

  • Full name,
  • Addresses within the last two years;
  • Date of birth;
  • Telephone number;
  • Social Security number;
  • Spouse if applicable; and
  • Current employment information.

It should also include:

  • A copy of the tenant screening report;
  • A copy of the criminal record obtained from the state;
  • A clear statement that the accuracy or completeness of specific information is “disputed” or “challenged”;
  • A specific and detailed explanation of the error or omission; and
  • A request that the CRA delete or correct the information.

The client should send the dispute letter to the tenant screening company. The client should also send a copy of the letter to the data vendor furnishing the information to the tenant screening company (as shown on the report received from the screening company), as this will strengthen any eventual case against the data vendor if it violates the FCRA’s reinvestigation requirements.

Because the FCRA generally requires a notice of dispute to be sent “directly” by the consumer, 15 U.S.C. § 1681i(a), the best practice is for the consumer to physically sign and send the dispute to the CRA requesting reinvestigation. The client should send the letter by certified mail, so as to have proof that the tenant screening company has received it. Keep a file of all correspondence sent to and received from the CRA. See NCLC’s Fair Credit Reporting § 4.5.2 for a discussion of making a dispute, including a more thorough discussion of practical tips (§

  —Step 4: Screening Company Responsibilities After Receiving a Dispute

Once a tenant screening company receives a dispute, it can delete or correct the disputed information; doing so allows it to avoid any duty to investigate the underlying issue. Otherwise, either the tenant screening company or data vendor must conduct a “reasonable reinvestigation” to determine the accuracy or completeness of its reporting. (Even though this may be the first time the CRA investigates the information, it is still referred to as a reinvestigation under the statute.) At a minimum, a reasonable reinvestigation requires that the CRA check with both the original sources and other reliable sources of the disputed information. NCLC’s Fair Credit Reporting § The reinvestigation must be “reasonable” and the CRA must also have “reasonable procedures” in place for conducting them. NCLC’s Fair Credit Reporting §

If the tenant screening company is a “reseller”—defined as a CRA that assembles or merges information from one or more other CRA databases and does not maintain its own database of consumer information, see 15 U.S.C. § 1681a(u)—then it must determine within five days whether it is responsible for the error. If so, it must correct or delete the information within twenty days. If the tenant screening reseller determines it did not cause the error, it must provide the data vendor with information about the consumer’s dispute, and the vendor must reinvestigate the disputed information and delete or modify the information in its files accordingly. See 15 U.S.C. § 1681i(f)(2)(B); NCLC’s Fair Credit Reporting §

If the tenant screening company is not a reseller—that is, if it has its own database of consumer information and does not rely on third-party data vendors—then it must reinvestigate the disputed information. The tenant screening company must complete this reinvestigation within thirty days of receiving notice of the consumer’s dispute. NCLC’s Fair Credit Reporting §

The disputed information must be deleted or modified as appropriate if the tenant screening company or the data vendor determine that the disputed information is inaccurate or if no determination is made within thirty days. NCLC’s Fair Credit Reporting § Within five days of completion of the reinvestigation, the tenant screening company—even if it is a reseller—must notify the consumer of the result of the investigation and provide a copy of a corrected report.

The consumer can request that the screening company notify any landlords who received the report of the result of the reinvestigation. Even when the applied-for housing units are no longer available, sending the correction to landlords is useful where the same landlord owns many units in the area. Corrections sent to these landlords are free as long as the prospective tenant requests it from the tenant screening company within thirty days. See NCLC’s Fair Credit Reporting § 4.9.3.

Even if the information is corrected, it is good practice to request an additional report from the tenant screening company several months later, to make sure the erroneous information is not still being reported.

  —Step 5: If No Response, Submit a Second Dispute

If, within thirty-five days, the consumer receives no response from the tenant screening company as to the dispute, the consumer should resend the dispute letter—ideally with some additional information so as to prevent the dispute from being treated as “frivolous”—and indicate that it is a repeat letter. This second letter will strengthen any subsequent legal action against the tenant screening company. 

  —Step 6: If Appropriate, File a Complaint in Court

The FCRA provides a private right of action for various violations of its requirements; these claims are discussed in more detail in the sections that follow. The proper defendant for these claims is generally the tenant screening company. One exception is that claims can be brought against a data vendor that violates the FCRA’s reinvestigation requirements, as discussed in the section immediately below. (For general guidance on drafting the complaint, see NCLC’s Fair Credit Reporting § 11.5.)

FCRA Violations of Reinvestigation Requirements

The FCRA requires that tenant screening companies conduct “reasonable” investigations of consumer disputes, and that they have and follow reasonable procedures to conduct such investigations. 15 U.S.C. § 1681i.  Many courts simply rely on the statutory text of 15 U.S.C. § 1681i when evaluating a reinvestigation claim. Some courts, however, have set forth a test for or elements of a reinvestigation claim. For a discussion of the various versions of this test, see NCLC’s Fair Credit Reporting §

The FCRA provides a separate private right of action to sue “furnishers” who fail to comply with the FCRA’s reinvestigation requirements. 15 U.S.C. § 1681s-2(b). In this context, the furnisher would be the data vendor that provides criminal record information to the tenant screening company. This private right of action is triggered only where the tenant screening company asks the data vendor to reinvestigate, and not where a rental applicant disputes the information directly with the data vendor. See NCLC’s Fair Credit Reporting §§ 6.10,

Each time a consumer submits a dispute and the CRA fails to conduct an adequate reinvestigation constitutes a separate and distinct claim under the FCRA.

FCRA Violations for Failure to Follow Reasonable Procedures to Assure Maximum Possible Accuracy

“Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). This requirement for maximum possible accuracy also applies to tenant screening companies that are “resellers”—that is, that do not retain any consumer information but rely on information retrieved from third-party data vendors each time they run a report. It is not a defense from the duty to evaluate information for accuracy that the reseller is simply reproducing the information they receive from a data vendor without alteration. See NCLC’s Fair Credit Reporting § 4.4.4.

A 15 U.S.C. § 1681e(b) claim may apply in any case involving inaccurate or misleading reporting of criminal record information. This includes all of the “common types of tenant screening errors” discussed above.

Courts often view the question of whether a CRA’s procedure to assure maximum possible accuracy is reasonable as a balancing test between the seriousness of the derogatory inaccuracy and the cost or burden of greater care. See NCLC’s Fair Credit Reporting § Inaccurate reporting of an individual’s criminal record is certainly serious. Factors in determining the reasonableness of a CRA’s procedures might include the extent to which a tenant screening company fails to cross-check information with other publicly available information and whether it allows the same inaccurate information to reappear in its reports after the consumer has brought the issue to its attention. See NCLC’s Fair Credit Reporting §

A CFPB advisory opinion at 86 Fed. Reg. 62,468 (Nov. 10, 2021) highlights that a CRA that uses inadequate matching procedures to match information to consumers, such as name-only matching, is not using reasonable procedures to assure maximum possible accuracy. See also NCLC’s CFPB Issues Three FCRA Interpretations with Widespread Implications; NCLC’s Implications of New CFPB Bulletin on Consumer Reporting of Renters.

Multiple additional matching elements beyond names may often be required to meet the FCRA standard. 86 Fed. Reg. at 62,471. The advisory opinion also states that the same standard applies where a tenant screening company takes data from a third party that uses name-only matching without taking additional steps to match the information to the consumer. See 86 Fed. Reg. at 62,472. Continuing to use name-only matching after November 10, 2021, would seem to be willful non-compliance.

When bringing a 15 U.S.C. § 1681e(b) claim, explain how alternative procedures could have improved the accuracy of the reporting, particularly if these procedures are used by at least certain other tenant screening companies. See NCLC’s Fair Credit Reporting § For example, it should not be overly burdensome for a tenant screening company to update its own databases of criminal records more frequently and to rely only on data vendors that update their records frequently. See NCLC’s Fair Credit Reporting §

FCRA Violations for Reporting Expunged Records

Plead the reporting of an expunged record as a 15 U.S.C. § 1681e(b) claim, i.e., failure to follow reasonable procedures to assure maximum possible accuracy. Generally, do not plead it as a § 1681c (obsolescence) claim, which prohibits the reporting of “adverse record[s] older than seven years” other than records of conviction. An exception is if the record at issue is a non-conviction record (e.g., an arrest) that has both been expunged and is older than seven years. In that instance, you can plead both a § 1681e(b) and a § 1681c claim. (In no case should expunged records be pleaded as a § 1681k claim, which requires reported records to be “complete and up to date,” because that claim applies only in the employment context.)  

FCRA Violations for Reporting Obsolete Information

The FCRA has two provisions restricting obsolete information. 15 U.S.C. § 1681c(a)(5) states that “no consumer reporting agency may make any consumer report containing” certain specified items of information or “[a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years” (emphasis added). In addition, § 1681e(a) states “Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of section 1681c of this title.” See NCLC’s Fair Credit Reporting § 5.2.5. Reporting a single obsolete record might be negligent, but a procedure that makes no effort to exclude obsolete criminal records might be willful.

FCRA Violations for Failure to Disclose the Tenant’s File

The FCRA requires tenant screening companies “to clearly and accurately disclose all information in the consumer’s file” upon request, including the “sources of [this] information.” 15 U.S.C. § 1681g(a). Following the Supreme Court’s decision in TransUnion L.L.C. v. Ramirez, 141 S. Ct. 2190 (2021), however, a denial of information alone may not be sufficient for standing. Be prepared to plead and explain how the deprivation of information created “downstream consequences” that the FCRA was enacted to prevent. See id. at 2214. See also NCLC’s Fair Credit Reporting §

FCRA Damages

A tenant screening company that negligently fails to comply with most FCRA requirements is liable to the consumer for actual damages sustained as a result of the failure, as well as court costs and reasonable attorney fees in the case of a successful action.  15 U.S.C. § 1681o(a). For willful violations, a consumer is entitled to actual damages or statutory damages ranging from $100 to $1,000 and such punitive damages as the court may allow, plus court costs and reasonable attorney fees. 15 U.S.C. § 1681n(a). Each failure to comply with the FCRA is a separate violation, so the consumer is potentially entitled to multiple awards of statutory damages for multiple violations. The FCRA can also be used to minimize the chance that a future rental application will be denied based on an erroneous criminal record. See NCLC’s Fair Credit Reporting § 12.5.

To recover actual damages, there must be a causal link between the erroneous report and the denial of housing. Tenant screening reports sent to the landlord often include not just a listing of information about the consumer, but an automated recommendation as to whether the application should be denied. This is powerful evidence of linkage of denial of housing and the report. Do not be fooled by innocuous sounding recommendations on the report sent to the landlord: terms such as “decisional” or “need review” in tenant screening parlance will convey to the landlord that the application should be denied.

FCRA actual damages can be pecuniary or intangible, such as emotional distress, pain and suffering, or humiliation. FCRA actual damages can be substantial, given the magnitude of harm that improper reporting of criminal records can cause. Denied applicants may be forced to rent an apartment they deem less desirable—e.g., the apartment may be smaller or more expensive than the one they were denied, may lack certain amenities, or its location may require a longer commute. In the most unfortunate cases, applicants and their families might experience housing instability or even homelessness, along with the emotional distress those experiences can cause. See NCLC’s Fair Credit Reporting § 12.5.2.

Other Considerations

Standing. Article III standing generally will not be an issue in cases where a plaintiff alleges that an inaccurate or otherwise improper criminal records report led to denial of housing. Even without proof of actual damages, publication to a landlord of false or misleading information about an individual’s criminal record should be enough for Article III standing. The Supreme Court in TransUnion L.L.C. v. Ramirez, 141 S. Ct. 2190, at 2208, 2209 (2021), held the mere dissemination of a false report labeling the plaintiffs as potential terrorists to be a concrete injury associated with the tort of defamation. Nuances regarding standing in FCRA cases are explained in more detail in NCLC’s Fair Credit Reporting § 11.3.

Arbitration. Consult NCLC’s Fair Credit Reporting § 12.4 for guidance on responding to any arbitration provision.

Statute of Limitations. The statute of limitations for FCRA claims is two years from discovery of a violation but in no event more than five years after the date of such violation. NCLC’s Fair Credit Reporting §

Common Law Claims and Preemption. The FCRA provides a limited qualified immunity for CRAs and landlords from liability under tort claims for defamation, invasion of privacy, or negligence with respect to the reporting of information unless the conduct involves malice or willful intent. 15 U.S.C. § 1681h(e). See also NCLC’s Fair Credit Reporting § 10.4. While some courts have correctly allowed common law claims not barred by this immunity provision, many courts have misread these claims as being preempted by other FCRA sections. See NCLC’s Fair Credit Reporting §§, 10.7.4.

State Statutory Claims. Some state statutory claims may be available. See NCLC’s Fair Credit Reporting § 10.6 and Appx. H. Nevertheless, these claims also may implicate FCRA preemption.  See NCLC’s Fair Credit Reporting § 10.7. See also NCLC’s CFPB Issues Three FCRA Interpretations with Widespread Implications; NCLC’s Implications of New CFPB Bulletin on Consumer Reporting of Renters.

Other Federal Claims. Other federal claims may be available against tenant-screening companies and landlords, such as the Fair Housing Act. See Louis v. Saferent Sols., L.L.C., No. 22-CV-10800-AK, 2023 WL 4766192 (D. Mass. July 26, 2023); NCLC’s Credit Discrimination § 1.4.

Class Actions. If tenant screening reports show a pattern of the same errors, a class action may be appropriate. For example, a screening company may report dispositions of criminal cases short of convictions beyond seven years, violating the FCRA’s obsolescence provisions. If a screening company relies on inadequate identifiers, thereby creating widespread mismatches, this may also be appropriate for a class action. So may relying on criminal records that are not reasonably updated.


We want to thank NCLC attorneys Jon Sheldon and Chi Chi Wu for their contributions to this article.

For more information on how tenant screening harms renters and recommendations for reform, see NCLC's report, Digital Denials: How Abuse, Bias, and Lack of Transparency in Tenant Screening Harm Renters