Rental housing is at a 30-year high in the United States, with 36.6 percent of households choosing to rent in 2016. Although the cost of living is quite high in many of the nation’s major cities, the current rental vacancy rate is holding at around 25 percent — a fact that will likely please many landlords who want to keep their units occupied. With millennials and baby boomers leading the growing rental market, property owners and managers across the country aren’t likely to have an overabundance of available apartments for long.
That said, finding the right tenant still has its challenges. Providing a thorough rent application to viable candidates can allow you to pick the right person for your property. However, you’ll need to tread lightly. While it’s understandable that you’d want to learn as much information as possible about a prospective tenant prior to having them sign a lease, there are certain questions you are legally not allowed to ask.
That’s because the Fair Housing Act of 1968 prohibits discriminatory behavior when selling or renting a property. You might think that a question or comment you make to a tenant is totally innocent, but if it broaches a subject that’s covered by this legislation, you could be found guilty of violating anti-discrimination laws. To ensure you won’t deal with potential discrimination suits or other litigation down the line, you’ll want to steer clear of the following subjects in applications and during in-person interviews.
There’s really no pertinent reason a landlord should ask a prospective tenant about whether they’re married or not. At best, the question is nosy; at worst, asking may make the person feel unsafe. Even making a seemingly innocent comment about noticing an engagement ring is not permissible. All you really need to know is how many adults will be applying on the lease.
Landlords are allowed to conduct background checks on tenants to find out whether you have ever been convicted of a crime. But they are not allowed to ask whether you’ve ever been arrested. Although you might want to ensure that your other tenants are safe and that you won’t have to deal with legal problems with this prospective tenant, the reality is that asking this question could land you in trouble with the law anyway.
It might seem like innocent small talk, but you legally cannot inquire about a prospective tenant’s age. This might surprise you, since you’ve probably seen “date of birth” sections on countless rental application templates. But unless your property provides senior citizen discounts or is part of a retirement community, this topic is forboden. A landlord who has information on a tenant’s age can willfully discriminate against certain demographics, which is against the law. To be safe, don’t even include it on the application form.
You might believe you’re looking out for a tenant’s best interests due to a lack of accessibility in a certain unit, but physical and mental disabilities cannot come into play during the housing process. It’s important to note that your properties should meet accessibility standards anyway (and if your building has more than four units, it’s required by law). But a tenant’s disabilities cannot even be considered in a housing application. And even if you don’t normally allow pets on the premises, you have to make an exception for service animals–and you cannot ask for proof or ask why the tenant requires one.
You are not permitted to ask about a tenant’s race or country of origin, nor can you ask leading questions about a tenant’s first language or make comments about minorities in the neighborhood. You should never even reference the subject of race or ethnicity. There’s no reason why it should ever come up, even when asking about the origin of someone’s last name or their accent.
Pregnancy and children
Questions about children or pregnancy are simply off-limits. You may realistically know that other tenants may not be thrilled about a crying baby or rowdy toddlers running around, but you are not allowed to discriminate against prospective tenants based on whether they have children. What’s more, you are not even allowed to ask where they go to school or how old they are. If a tenant asks about schools or daycares in the area, you can provide information. However, you cannot initiate the topic nor can you ask for the names of the tenant’s children on the application.
Drug abuse or alcoholism
It’s understandable that you want to protect your property and ensure you are paid rent on time. You might even know from first-hand experience the damage that drug and alcohol addiction can do. But you are not actually allowed to ask a tenant about their experiences with addiction, as this is actually viewed as a disability as defined under the Fair Housing Act. Keep in mind that you can’t restrict alcohol use on your property in your lease, either.
You may think to inquire about whether a tenant attends church nearby or to tell them there aren’t many synagogues in town, but you should not even mention the subject of religion. Once again, religious freedom is protected by the Fair Housing Act. You might not mean anything by it, but even briefly mentioning the subject of faith can send the message that you might prioritize members of a certain religion over other applicants.
Sexuality or gender identity
Whether it’s asking about the exact nature of the relationship between two applicants or telling a woman that you don’t feel comfortable renting her a first-floor unit, the concepts of sexuality and gender should never be addressed by a landlord. In that same vein, gender identity should remain off the rental application, as well. Landlords definitely are not allowed to specify the gender of a desirable tenant in a property listing either. It’s really not your business anyway.
Landlords are well within their rights to run credit checks and obtain information on a tenant’s income. After all, you’ll need to find out whether a tenant is likely to pay on time. However, you’re not allowed to ask about where that income originates. You can obtain and verify employment information, but you cannot ask about whether a tenant is on welfare, whether they receive food stamps, or whether they’re given any type of public assistance. Asking for proof of income is fine, but prying into other benefits tenants may receive is not.
It’s also important to note that all of your application and interview questions should be consistent for all tenants. You cannot pick and choose questions to ask of certain tenants. Whether you realize it or not, that practice can be discriminatory. Even asking for references from select tenants or performing credit checks on specific people may be in violation of the Fair Housing Act.
As long as you keep your questions the same for each prospective tenant and make sure to stay away from the aforementioned topics pertaining to protected classes, this process should be smooth and you should have no trouble filling those vacancies.