DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

The foregoing policy could easily be adapted into a workable tenant drug testing program. Prospective tenants could be given the policy when applying for the lease, and the policy could be posted in a conspicuous location within the complex for existing tenants to see. By giving tenants notice, and with fair procedures and rights to appeal, the landlord, in essence, would be conferring on his tenants private due process procedures. Although no states today have statutory or case law that creates tenant civil rights and remedies in drug testing, not to mention criminal sanctions, a tenant's rights, if any, are an inchoate common law right of privacy.122 Such common law rights could be stated in the policy by way of analogy to Minnesota's civil remedies and criminal sanctions provision.123

C. Procedural Safeguards to Drug Testing

Minnesota provides a number of stringent and specific procedural safeguards in how employment drug tests are administered. Under the heading "Reliability and fairness safeguards," the Minnesota statute details certain requirements and prohibitions, which include laboratory testing, reporting and sample retention, employer chain-of-custody procedures, confirmatory retests, the rights of employees and applicants to receive notice of test results, and a prohibition on employers' conducting the testing.124.

Similarly, landlords could use these procedures. Although they might be expensive for the landlord, implementing them may be cheaper than the alternative-costly lawsuits and damages. Of course, the ideal situation is the eventual adoption of a statutory scheme that would give landlords a bright-line standard. Currently, even with a predictable and fair approach, such as the one presented above, landlords are exploring unknown and risky legal territory in light of state and federal laws.

V. CONCLUSION

Relationships between landlord and tenant can, at times, become very contentious, particularly if tenants are using drugs on the premises. Landlords must safeguard their investments and protect other tenants from those tenants who are disruptive and destructive. Failing to do this can only result not only in an unsuccessful business, but also lawsuits by tenants and others who are harmed. It can even trigger severe government intervention such as civil forfeiture.

Still, the information the landlord receives regarding the suitability of a prospective tenant, and even information on tenants currently leasing, typically is asymmetrical. Traditional screening services, which seek financial as well as private information on living and behavioral habits, can aid landlords, but they are ethically and legally controversial and often ineffective.125 In the past decade, a growing number of landlords sought to lessen the risk of leasing to those persons who may be involved in drug activity. Testing tenants for drug use, although still rare, is likely to escalate, particularly in the lower end of the housing sector. Not surprisingly in light of the consequences to landlords who ignore drug activity in and around their apartments, many have resorted to this tactic.