Criteria for Renting

Posted by  wasserman 

A tenant attorney submitted an application to rent a vacant unit in my building, but I would rather not rent to a tenant attorney.  Is there a way to lawfully deny her application?

This is one of those questions where the technical answer is “yes, you may deny the applicant because attorneys are not a protected class.”  And given the inherent nature of many lawyers to create and exacerbate problems, it is entirely understandable why a housing provider would not want to be inviting towards this group.

That said, the reality is you should not deny the applicant simply because she is an attorney.  Why?  Because she may also be a member of a “protected class” and the denial could be misconstrued by her as unlawful housing discrimination.  Remember, in California a housing provider may never discriminate against any applicant based upon that applicant’s race, color, religion, sex (including gender, pregnancy, sexual orientation, and gender identity), marital status, age (persons over 40), disability, medical conditions, veteran’s status, source of income, and citizenship.  Assume for a moment that the applicant attorney is 50 years old and has a disability which provides her with a housing subsidy that she will use to pay her monthly rent.  By saying no because of her status a member of the State Bar, you are also denying housing to a person over 40 who has a disability and will pay rent with third party assistance.  Understandably, she might feel suspicious and could potentially decide to pursue discrimination claims against you.

The better approach is to abandon any criteria that can land you in hot water.  This means that any applicant ought to be evaluated only based upon the following benchmarks:  (1)  ability to pay rent; (2) low credit score; (3) eviction history; and (4) failure to complete the rental application.  However, these evaluation matrices are not so cut-and-dry.

The ability to pay rent requisite is complicated by the fact that we may not discriminate based upon source of income.  If someone receives government or charitable benefits, that funding must be given the same respect as revenue from a private or public sector employer.  Gone are the days when you may opt not to participate in the Section 8 or other aid programs; to the contrary, you must extend full cooperation to public and private agencies that are assisting persons in need of housing.  Also, remember that many folks have savings and family assistance, so do not automatically assume that a person who is not currently employed is unable to pay rent.

Low credit score is likewise an elusive standard. For starters, you should also take into consideration the portion of rent that may be paid by way of private or public aid.  In other words, if the monthly rent is $4,000 per month, and Section 8 is committed to paying $3,800 of that amount, then the applicant does not need excellent credit to become your tenant, and neither is this same applicant required to demonstrate an independent ability to pay the full rent since a third-party agency is subsidizing 95% of it.

Eviction history is also a bit tricky.  If the applicant does report past adverse legal actions, dig deeper to ascertain if there was truly undesirable behavior or, conversely, this person was not a defaulting party or otherwise to blame for the prior tenancy’s termination. 

Lastly, while evidence of a criminal conviction may still be used as a basis for denial absent local legislation prohibiting this practice, this author advises against considering it.  First, people who have served their time should be given second chances.  Secondly, in order to use this as a qualifier, you need to demonstrate that past criminal activities will pose a threat to your property.  Thus, mere criminal history alone is not a sufficient ground to shred the application.

So be very careful when rejecting someone.  In general, an applicant may be declined only if there is an obvious inability to pay rent each month when considering all sources of revenue, including savings, charitable aid, and public and private housing assistance programs.  Otherwise, unless there is recent or current behavioral impediments that would make renting overly risky, be inviting.   

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