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by Janet Portman, Inman News

Law booksQ: I’ve been advertising for a tenant to occupy my single-family rental, and interviewed someone whom I just don’t like.

He didn’t look me in the eye; his answers to my questions were evasive; and he began asking about improvements to the house that aren’t necessary.

He has a job and appears to have enough income to pay the rent. He’s also a member of a racial minority. If I can’t point to anything besides my unease, am I breaking the law if I refuse to rent to him? –Jake W.

A: Landlords are always on better ground if they can point to objective criteria, such as an inability to pay the rent, or a poor rental or bill-paying history, as the reason they turned someone away. Reasons like this don’t prove that the landlord did not have discriminatory motives — they just make it harder for rejected applicants to prove that the motive was anything but businesslike.

The federal anti-discrimination laws, which apply everywhere and to most landlords, don’t specifically forbid landlords from using subjective measures like the ones you describe. You can take into account the applicant’s appearance, his demeanor, your estimate of his trustworthiness or truthfulness, or other subjective factors. Indeed, businesspeople utilize such conclusions and opinions in their daily affairs all the time. An owner may legally refuse to rent to an individual simply because he does not like him.

But what you’re legally allowed to do, and the practical consequences to you if you take advantage of this liberty, can be two very different things. If your decision not to rent to someone rests on subjective reasons like this, you must understand that if the disappointed applicant is a member of a protected class, as is your prospect, your decision can be challenged. You must be able to prove to an judge or jury, before a government agency hearing or in a lawsuit, that these factors, and not an unwillingness to rent to members of this racial group, were the basis for your decision.

Because it’s very hard to prove that you weren’t using subjective criteria to mask illegal discrimination, careful landlords’ lawyers will tell their clients never to rely on these amorphous reasons when rejecting a prospect. Instead, by doing the screening that all landlords should engage in, you’ll probably uncover objective facts that will justify, if not take the place of, your subjective conclusions. Take, for example, this prospect’s instant dissatisfaction with aspects of the property. Chances are that if you talk with this person’s past and current landlords, you will hear that he’s a demanding tenant who never leaves the owners in peace. Right there, you’ve got solid evidence to justify a rejection, and it has nothing to do with your personal radar.

The bottom line, to borrow a presidential phrase, is to trust but verify. Your instincts may indeed be correct and have nothing to do with illegal discrimination, but in order to protect yourself, be sure to do the work needed to provide a defense. And never, of course, entertain personal dislikes that are founded on illegal discrimination.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide”. She can be reached at

Copyright 2009 Janet Portman

See Janet Portman’s feature, Is It Legal to Exclude College Kids?

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