7 Questions Landlords Can’t Legally Ask on Rental Applications

When landlords ask potential renters to fill out rental applications, there are certain questions they aren’t legally allowed to ask. Some questions are prohibited under state or local law where the rental property is located, while other restrictions are banned under federal law in every state. Landlords should be aware of potential minefields to avoid being subject to legal action for asking the wrong things. Prospective tenants should also empower themselves by learning what they don’t have to answer on a rental application.

The following application inquiries are taboo, whether they’re asked directly or indirectly:

1. What is your race?

When a landlord hands out a rental application, it can’t include a question about the race of the applicant. Under federal antidiscrimination law (specifically the federal Fair Housing Act (FHA), 42 U.S. Code §§ 3601-3619, 3631), landlords may not discriminate against prospective tenants and current tenants based on their race. Therefore, a question regarding race can’t be a part of the rental application.

2. What is your nationality?

Similar to the reason stated above regarding race, landlords are not allowed to ask about an applicant’s nationality. Doing so is a violation of the FHA and can get the landlord in a lot of trouble, such as requiring them to pay fines, punitive damages, and attorneys’ fees. Any inquiry that could lead to a discussion of the applicant’s birthplace, hometown, or even cultural upbringing can lead to a claim of illegal discrimination on the basis of national origin. Note that the discussion does not have to be part of the written application—unlawful discrimination claims of all kinds can also be based on oral conversations and informal tenant screening.

3. What is your religion?

Religion is also on the don’t ask list. A landlord’s inclusion of this type of question on the rental application, or even a casual mention during an introductory conversation, could violate the FHA and expose the landlord to a fair housing complaint. Landlords must also be aware that their actions and advertising could lead to fair housing complaints. For example, a landlord who fills a vacant rental with obvious religious paraphernalia could possibly be accused of illegal discrimination on the basis of religion when records show that the landlord consistently refuses applicants who the landlord believed or knew to be of a certain religion.

4. What is your sex and sexual orientation?

Another thing to leave off the rental application is a question about the gender of the applicant. This is not allowed under the FHA as it can lead to potential discrimination issues and should not be included by any means.

As for sexual orientation, there is no federal law that prohibits asking this question, however, many state laws and city ordinances make it illegal to discriminate based on sexual orientation. Some of the states that make rental discrimination based on sexual orientation illegal include California, Massachusetts, New Jersey, and Connecticut.

5. Do you have children?

Some landlords might want to rent to adults only. However, unless the rental falls under a Housing for Older Persons exemption, landlords cannot discriminate against people of a certain age or who have children. Therefore, asking whether an applicant has children is a violation of fair housing law. Landlords cannot ask if the applicant has children or whether an applicant plans on having children. A landlord can ask, however, for the names of all people who will be living at the rental, and can require all adults to sign the lease or rental agreement.

6. Have you been arrested?

In most states, landlords can include a question about whether the applicant has previously been convicted of a crime. However, landlords cannot ask about prior arrests, given that simply because a person is arrested does not mean that they were guilty of a crime. Conviction records are relatively easy to verify with a background check.

It’s important to note that it is illegal for landlords in some areas to discriminate against prospective tenants with a prior conviction. For example, Seattle, Washington enacted legislation that states landlords can’t discriminate against potential renters with a criminal record. The Fair Chance Housing legislation went into effect February 19, 2018 and protects prospective tenants from potential unfair bias.

Landlords in Washington, D.C. must also be cautious with how they treat applicants with prior convictions and in their process of accepting or rejecting rental applications. Landlords in D.C. cannot ask applicants about their criminal history until a conditional offer of housing is made. And, landlords in D.C. must adopt a criminal background screening policy that would individually assess applicants with criminal convictions, rather than have a policy of renting to anyone with a criminal record.

7. Are you disabled?

Under the FHA, landlords are not allowed to discriminate against people who have a physical or mental disability that substantially limits one or more major life activities. Some examples of these activities include:

  • mobility impairments
  • visual impairments
  • hearing impairments
  • mental illness
  • chronic alcoholism
  • severe intellectual disability, and
  • HIV, AIDS, and AIDS-Related Complex.

The FHA also prohibits landlords from discriminating against people who have a history of a disability or are regarded by others as having a disability.

Landlords shouldn’t include any questions related to disability on the rental application. Also, they shouldn’t ask about the disability in conversation, such as how severely they are disabled, and must show all available rentals to the interested renter, even if one might be more accessible for the prospective tenant.

And the landlord’s responsibility to the disabled individual doesn’t end once the tenant moves in. Disabled individuals also have specific rights during their rental term, ranging from providing accommodations for the disabled tenant to allowing the disabled tenant to make reasonable modifications to the living unit and common areas.

Questions Landlords Can Ask Potential Tenants

There are many questions that are safe for landlords to ask that will provide them with the information they need to rent an apartment, condominium, or house to an individual. Landlords can safely screen potential tenants by asking about the following topics:

  • employment history
  • credit history
  • income
  • driver’s license number
  • past evictions
  • past bankruptcies, and
  • references.

Landlords can also ask applicants to provide their Social Security Number (or Individual Tax Payer Identification Number) so that they can run a credit or background check on the applicant. Landlords who plan to run such checks should get written permission from applicants before doing so.

Landlords must make sure that their nondiscriminatory screening procedures are applied equally to all applicants. For example, landlords can’t run a credit report on one potential renter and not the other ones simply because they believe that one individual might be a bigger economic risk—doing so opens the door to claims of illegal discrimination.


Source: Lawyers.com