How long to keep "notes" about tenant prospects

Question

My wife is our "leasing agent" and has these very organized notebooks where she takes notes about prospects during phone calls, and to take with her for showings. She just dumped 4 big notebooks on my desk starting in 2014 and asked me to "file them" if need be. How long might we hold onto something like this? I mean the only reason I can think of is that it creates a breadcrumb trail for actions in the event of a discrimination claim. Any thoughts, qualified or not, are welcome!

Charlie MacPherson · Answer

@Kenneth LaVoie  I agree with @JD Martin.  Notes can be subpoenaed to be used against you as evidence, and that would most likely be in a discrimination complaint.

I don't see any reason for you to retain evidence that can be used against you in a lawsuit.  But if those notes are in your possession when they're subpoenaed, destroying them carries huge legal penalties.

I've heard too many stories of trumped-up discrimination complaints that end up with enormous damages.  The one that comes to mind is a case out of Massachusetts.  A real estate agent was helping a client sign up for a rental.  The client had an accent, so in the course of polite conversation, the agent said "So where are you from?" To which the client replied "Venezuala".  The agent said something like "Oh, that's nice."  And then got her the rental.

National origin is a protected class so the client sued the agent.  He was found guilty, even though there was no actual discrimination.  My memory is that between fines, court costs and damages, he had to pay $75,000.

There's an old saying; "Never write when you can speak.  Never speak when you can whisper.  Never whisper when you can wink."  I'd burn those notes.  Today.

JD Martin · Answer

I agree with this. Actually, I don't think I would keep any notes on any prospective tenants. Anything written could be used against you in court. Never write down anything you don't want read aloud later.

John Warren · Answer

@Kenneth LaVoie I would think that you could dispose off this stuff after a year or so. If you think about it, any action is likely to happen in the same year. A lease almost never is extended beyond that, so I would not think tenants would have luck on a law suit stretching back several years as the evidence would be almost impossible for them.

Amy A. · Answer

You are guilty of discrimination until proven innocent. It's not fair, but it's true. You may be able to use those notes to defend yourself. "Ms. MHRC lawyer, I reject every applicant who chews food while on the phone, not just members of a certain protected class. Here are my notes from 2014 to prove this." I guess it depends on the type of information you recorded whether you should keep them or if they set you up for more liability.

Joe Splitrock · Answer

@Kenneth LaVoie I have had multiple times where the same troubled applicant has come back to look at properties later. I like having names and notes to reference, but we keep it in a spreadsheet so it is searchable by name or phone number. Nothing we write down has anything to do with protected attributes. All you are required to keep is rejected applications, so the notes are yours to do with what you like. As far as potential litigation, it is not like the feds are going to knock your door in one morning and seize your notebooks. If you are not discriminating, I wouldn't worry.

Charlie MacPherson · Answer

@Kenneth LaVoie  I'd never ask that question again.  National Origin is a protected class in Maine too.  In fact, it's a protected class at the federal level.  https://www.maine.gov/mhrc/sit...  https://www.homevalueleads.com...

There was another case in Mass where an agent put the Christian fish symbol (Ichythys) on the corner of his business cards.  The state got wind of it and sued him for discrimination because he would "obviously" not serve a Jew, Muslim, atheist, Hindu, etc.  This was extreme, over-the-top bullcrap - but it cost him $45,000 in fines.

The bottom line is to never even discuss anything about an applicant except their credit worthiness.  In fact, I've been asked whether there are many black people around here - by a black buyer!

My universal response to those kinds of questions is this: "I can discuss properties, not people."

Kenneth LaVoie · Answer

Burning now. (PS, I can't imagine how anyone could possibly be "caught" if notes are subpoena'd. Who would know you had them?) But I get the gist (Did I see you wink??)

It does absolutely enrage me when I hear stories like you just mentioned re the Venezuelan. I ALWAYS ask people where they're from when they have an accent because I am learning Spanish so I always look for opportunities to practice. (That would probably be my plausible "out" if I ever was in a similar situation) It's these very laws and penalties that keep us closed off from one another, you know?

Kenneth LaVoie · Answer

I'm sure you're right. I'm not sure I want to spend the $35 my lawyer would charge to answer the question, so it's probably not important enough to stress over. My only thought was to remind me of a narrative that I used to decide NOT to follow up with a particular prospect, or something like that (ie. noticed he was 12 minutes late to showing, never called to give heads up, sounded like I woke her up when I called at 9, dog barking, eating potato chips while on phone with me, etc.)

How long to keep "notes" about tenant prospects

Most Popular Reply