Fair Housing Considerations When Evaluating Rental Applications

Posted by  wasserman 

On the application I give to potential renters, I ask why they are moving.  Is this inquiry permissible?

Yes, asking a potential applicant why they are relocating is probably okay.  But you are wise to exercise caution as to what inquiries you are making of potential applicants.  Fair housing claims are on the rise in California, and housing providers cannot be too careful about avoiding unlawful discriminatory practices even if you have no such nefarious intentions.  Let’s briefly summarize fair housing laws as they apply to applicant screening.

Stated succinctly, you may never discriminate against someone because of their:

  • Race, color
  • Ancestry, national origin
  • Citizenship, immigration status
  • Primary language
  • Age
  • Religion
  • Disability, mental or physical
  • Sex, gender
  • Sexual orientation
  • Gender identity, gender expression
  • Genetic information
  • Marital status
  • Familial status
  • Source of income
  • Military or veteran status

The above characteristics comprise what are known as protected classes, meaning you may never deny or inhibit the ability of anyone to obtain housing based upon these criteria.  Period.  Discrimination in leasing (or actions that can be perceived as discrimination) are behaviors and actions which factor in the protected class of the person.  These actions include:

  • Refusing to rent units to a protected class, or steering persons to particular units or buildings.   
  • Implying to a protected class member that certain units are not available for rent or viewing when that is not true.
  • Showing certain units or amenities to certain applicants but not others.
  • Any sort of rules or policies that can result in unequal access to applicants.

Legitimate leasing criteria include credit history, income qualification, negative references from a previous housing provider, or prior adverse eviction history.  To that end, exploring why a resident is seeking new housing is not patently objectionable.

However, there are certain critical considerations that carve out exceptions even to these appropriate standards.  For example, since source of income cannot be used as a basis to deny an application, and both California and local law now essentially require housing providers to participate in Section 8 and other voucher-based programs, using credit history or income qualifications for folks that have vouchers or subsidies that guarantee the payment of all or most of the rent is tantamount to unlawful housing discrimination.  This is because in most instances a voucher-qualified applicant would likely fail to satisfy standard income and credit criteria and, as such, would never be able to qualify for your housing.  Indeed, if rent is provided and guaranteed by the government or other financially sound entity, there is no legitimate business purpose to income or credit qualify such applicants.

Yet eviction history and prior landlord references are likely a permissible line of inquiry in most circumstances.  Ascertaining why the applicant is moving and what that applicant’s history is with the prior housing provider could shed light as to whether or not the applicant has behavioral issues or otherwise failed to adhere to the requirements of a prior rental agreement.  In fact, California housing providers should perform due diligence to ensure that they are not placing disruptive or otherwise poorly behaved tenants into an apartment community.  That said, this author strongly urges all housing providers to regularly attend SFAA classes on fair housing and best leasing practices, as a discrimination complaint can result in substantial fines and penalties.   

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