Tenants appreciate a landlord who cares about them. Setting a cordial and professional tone from the first expression of interest through the signing of a lease and the duration of occupancy is a formula for success as a property investor. However, property investors can get themselves in trouble by asking questions a landlord cannot ask, even if their intention was simply to get to know their tenant better.
Questions That Discriminate Based on Protected Categories
Fair housing laws protect prospective and current tenants from discrimination based on sex, religion, race, color, disability, national origin, and family status. This puts a lot of seemingly innocent questions out of bounds, and landlords must use caution when interviewing prospective tenants not to ask questions that could be interpreted as probing into these areas. The obligation continues throughout the tenant’s occupancy of the property and includes applying policies unequally or directing tenants to some homes but not showing them others. The questions a landlord asks and the words they use can give prospective and current tenants the impression that their landlord intends to discriminate against them based on one of the protected areas.
Arrests and Convictions
In addition to protected categories like race, sex, and national origin, there are other areas a landlord cannot include in an interview or a conversation. While property owners can conduct background checks for prior convictions, they cannot ask whether someone has ever been arrested. Innocent people get arrested and released every day. Those who are accused may never be convicted of a crime. Rely on background checks and keep the questions about arrests out of it.
Moreover, criminal convictions disproportionately affect Black and Latinx populations. A policy of disqualifying a tenant because of a past criminal history in effect perpetuates race discrimination. A 2016 memo from the Department of Housing and Urban Development states that a policy or practice denying a tenant a lease based on past criminal history is illegal if it isn’t supported by a “substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.”
A past criminal history isn’t necessarily an indication that a person would be a bad tenant. There are myriad minor offenses a person may have been convicted of that raise no legitimate concerns about the safety of other tenants or their property. A landlord with a policy of denying tenants based on certain types of offenses still must show that the policy serves a “substantial, legitimate, nondiscriminatory” interest and that their policy makes a distinction between past crimes that present a “demonstrable risk” to safety and property and criminal conduct that does not indicate such a risk.
Questions About the Source of Income
Landlords need to know that a prospective tenant has enough income to pay the rent they’re promising to pay by signing a lease. Questions confirming employment and income are OK, but a landlord isn’t allowed to ask about or discriminate based on the source of income. Asking a tenant if they’re on public assistance, receive food stamps or any other kind of public assistance is off-limits. A better way to determine if a tenant has the means to pay the rent you’re asking is to ask for confirmation of income from the tenant’s employer.
The Federal Fair Housing Act does not expressly prohibit discrimination because of age, but some states do, and discrimination based on age falls under the federal “familial status” prohibition. The family status category protects families with children under 18, pregnant women, or families planning to have children. It prohibits discrimination because of marital status. Landlords can ask about how many people will occupy the property, and adults (those 18 and over) may be asked to fill out a housing application. But they can’t ask about children or children’s ages, and they can’t create special conditions that apply only to families with children.
Imposing unequal terms and conditions on tenants based on personal characteristics is simply unfair. Landlords can’t refuse to rent or apply standards to one group that they don’t apply to everyone else.
The Fair Housing Act has an exception for “senior housing” intended for people 55 and over. Properties that wish to operate as “senior housing” under the exemption must show that at least 80 percent of their units will have at least one occupant who is 55 or over. The housing must publish and abide by policies that show the intent to operate at housing for persons 55 and over, and the facility must comply with regulations about verifying resident’s age.
Many states and cities have laws prohibiting discrimination based on sexual orientation or gender identity. Even if the state doesn’t have this protection, there’s no legitimate argument that a person’s sexual orientation poses any sort of threat to other tenants or their property. Don’t go there.
Questions addressed to prospective tenants should stick to those directly relevant to a tenant’s ability to pay rent on time and comply with reasonable and permissible policies. That’s a good rule of thumb to help landlords avoid questions they cannot ask. Here are some examples of questions that can get landlords in trouble:
“Do you have a service animal?” This question reveals a possible intent to discriminate based on disability. A service animal is not a pet. Tenants may be asked to provide documentation that the service animal is trained or certified, or for a letter from a doctor stating that the animal is necessary to assist the tenant. But landlords cannot inquire into the nature of a tenant’s disability or medical conditions.
“What country are you from?” or “Where were you born?” This implies discrimination on the basis of national origin.
“Are you planning on having more kids?” This falls under the prohibition on discrimination based on familial status.
“You two make such a cute couple. When’s the wedding?” Another family status no-no.
“Will your parents be cosigning the lease?” Age and family status are implicated here. A landlord can’t assume that just because a person is younger, they won’t be able to pay the rent.
“Would you like a list of local churches?” This points to discrimination based on religion. Don’t assume because of the way someone is dressed, for example, that they are a member of any particular religious group. As a landlord, you can’t ask questions about this anyway.
Screening tenants appropriately without straying into prohibited areas takes practice and expertise. Property investors in Georgia can rely on Excalibur’s Atlanta property management experience to conduct tenant screening legally and appropriately.