DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

However, much like drug testing employees, testing tenants is fraught with legal and ethical problems. Although no federal or state laws now outlaw the practice, the law remains unsettled. Potential infringement on the rights of certain protected classes, such as disabled and minority tenants, is probable. Furthermore, privacy rights, generally protected under state laws, similarly are threatened when tenants are drug tested.

Testing prospective tenants may present privacy issues under state law. However, because a prospective tenant is only bargaining for a lease, he has acquired few, if any, expectations of privacy. Mandatory testing to renew a lease, however, obviously is different. In that case, a person may feel his now-established privacy and property rights are being invaded. Common law rights of privacy may be violated if testing is deemed an abnormal means of extracting private information; even assuming it is not abnormal, loss of privacy may not be outweighed by the overall good or purpose created for the complex.

This Article has presented the potential legal pitfalls in drug testing tenants under state privacy laws and has discussed ways of minimizing the apparent risks by examining analogous state employment drug testing laws, with particular emphasis on Minnesota's drug testing statute. A clear and worthwhile dialogue will soon begin concerning this issue in order to protect both the property rights of landlords and law-abiding tenants and the civil and privacy rights of those groups who are shielded under our laws.

Robert J. Aalberts*

*Lied Professor of Legal Studies at the University of Nevada, Las Vegas; J.D., Loyola University, New Orleans; M.A., University of Missouri-Columbia. The author has published over 100 articles in legal and business periodicals. He is currently the Editor-in-Chief of the Real Estate Law Journal, a position he has held since 1992. Professor Aalberts is the co-author of the fifth edition of Real Estate Law. The author would like to thank Kenneth C. Fonte, Esq. of Golden & Fonte, Attorneys at Law, Metairie, Louisiana for his very useful ideas and suggestions for this Article.

Copyright American Bar Association, Real Property, Probate and Trust Law Section Fall 2003
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