How Fair Housing Laws Apply to Tenant Screening

As a landlord, you’re not required to rent your apartments to just anyone. You have the right to screen applicants so that you find people you believe will take their lease obligations seriously, including paying their rent each month. Although screening applicants is both legal and recommended, you must still take care to avoid liability traps. Understanding the law and following best practices will help ensure that you fill your vacancies with responsible tenants—while also steering clear of legal trouble.

How do I treat applicants fairly?

Check federal, state, and local fair housing laws to avoid housing discrimination complaints from applicants. The federal Fair Housing Act (FHA) bans discrimination across the country based on a race, color, religion, national origin, sex, disability, and familial status. States and city governments often add on to that list, outlawing discrimination based on sexual orientation or source of income, for example.

Apply these laws consistently with all applicants. By treating everyone the same, you’ll lower the chances of a misunderstanding that could lead to a costly complaint. Most importantly, process applications in the order you receive them, and apply the same screening criteria to all people in the same situation.

What can I do to prevent claims I'm treating tenants unfairly?

Create a written tenant selection plan, distribute it to employees and applicants—and then, of course, follow it. For example, state your minimum credit score, what documentation you accept as proof of income, and how applicants can contest negative comments in a landlord reference. This way, tenants will know your screening criteria in advance, which may even dissuade them from applying if they know they have negative landlord references, a recent bankruptcy, or some other red flag that won't meet your criteria.

Another way to ensure you are treating tenants fairly is to process their applications without regard to their race, religion, sex, or other protected class. So, if a single woman wants to rent a studio apartment, don’t limit her to the studios in a building where several other single women are already renting. Even if you think she would be more comfortable there, steering applicants towards certain units based on their gender (or any other protected class) is illegal.

What if I want to change my screening policies?

As you become a more experienced landlord, you might rethink or update your screening policies. Update your policies in writing and inform staff members of the changes. Make sure the effective date is clear and write an internal memo explaining the change. If a change means more stringent testing, consider instituting it with a few months' notice to avoid problems or confusion. Finally, be sure to apply changes to all applicants going forward.

Can I reject applicants with a criminal record?

Although landlords have a duty to keep their property safe, refusing to rent to people with any criminal record is not required—and might even keep good tenants away. A blanket ban on people with criminal records could also lead to costly fair housing violations.

Once you’ve determined your criteria—which should account for arrests versus convictions and dangerous versus non-dangerous crimes—apply your policy evenly. For instance, if you make exceptions only for white applicants, you’re favoring certain applicants based on their race. For more help, read through government guidance on considering applicants’ criminal history.

How do I deal with drug users and alcoholics?

Although drug and alcohol at a property can cause serious problems, trying to prevent former users from renting is not the answer. People with addictions qualify as having a disability under the FHA, which means refusing to rent to applicants who have used or abused any substances in the past can lead to fair housing complaints.² You can, however, refuse to rent to current users of illegal drugs as well as people with past convictions for the illegal manufacture or distribution of drugs.³ Also, be aware that you may always take steps to avoid renting to applicants who would pose a “direct threat” to others’ health and safety.⁴

Can I ask applicants questions about a disability?

If applicants tell you they need a ground-floor or accessible apartment because of a non-obvious disability, the FHA gives you the right to get third-party verification of their disability and the need for the requested accommodation. You must, however, avoid asking questions about the nature and extent of a disability.⁵ Also, avoid making assumptions and always let applicants bring up any disability-related needs they may have.

Can I refuse to rent to applicants because my property is too dangerous for them?

Even if your goal is to protect tenants or look out for their best interests, limiting applicants’ choices in a way that violates the FHA is still illegal. If you believe your property has a hazard that is particularly dangerous for children, you must take steps to remove the hazard—not penalize families with children by refusing to rent to them.

Similarly, you can't turn away people because you believe their mobility impairment or other disability could make living at your property too difficult or even perilous, whether it's because of landscaping features such as hilly terrain or lack of accessibility. At the least, you must follow federal law and be ready to make reasonable modifications, if requested, to ensure full accessibility to any applicant who considers your property.⁶

What other laws apply to the tenant screening process?

Fair housing laws are not the only ones that apply to the tenant screening process. The Federal Credit Reporting Act (FCRA) requires landlords to be transparent when checking applicants’ credit, rental, and criminal history. In addition, you must comply with your state's laws on screening, which may impose limits on application fees or require certain disclosures.

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[1] The Fortune Society, Inc. v. Sandcastle Towers Housing Development Fund, Inc., No. 1:14-cv-6410, 388 F. Supp. 3d 145 (E.D.N.Y. 2019)

[2] 42 U.S.C. § 3602(h)(3)

[3] 42 U.S.C. § 3607(a)(4)

[4] 42 U.S.C. § 3604(f)(9)

[5] 24 CFR § 100.202(c)

[6] 42 U.S.C. § 3604(f)(3)(A)

[7] U.S. v. DeRaffele, Civil Action No. 16-10991-MGM (D. Mass. 2017)