It’s a good idea to have a thorough screening process for prospective renters, but if you don’t know the Fair Housing laws, you might not realize there are certain questions that are illegal for landlords to ask tenants.
To avoid violating renter protections — and protect yourself from a bad tenant — the best offense is a clear and consistent screening and application process. And that starts with knowing what information is in-bounds for assessing applicants and what isn’t.
Questions Landlords Can (and Should) Ask When Screening a Tenant
At a basic level, you need to know four things about any prospective tenant:
Can they afford the rental rate and pay on time, every time?
Are they amenable to a move-in/move-out timeline that aligns with the unit’s availability?
Will they be a safe and respectful neighbor and tenant?
Will they agree to allow you to verify their information with reference, background and credit checks?
The first two questions can — and should — be part of your first conversation with a prospect. You are legally allowed to ask their monthly income and should do the math on your own to ensure it’s at least 2.5 to 3 times the asking rent amount.
It’s not enough to stop here, though; you’ll want to verify that income rate in later phases of the screening process. The area to avoid regarding income, however, is asking where it comes from. Asking a tenant if they receive welfare or other public assistance is considered discriminatory.
You’re also allowed to ask when they’re planning to move. If the tenant wants to move in immediately or is looking more than two months in advance, that can be a warning sign. Immediate occupancy needs suggest they might be bad at planning, while searching too early could mean they’re not yet serious.
True, those assumptions are speculative, but because they’re speculations based on logistical information that has nothing to do with any of the applicant’s protected categories under the Fair Housing Act (race, nationality, religion, sexual orientation, gender (in some, but not all states), relationship status, children, age or disability), they’re legally fine.
Assessing whether someone will be a safe and respectful tenant walks a finer line. Landlords are entitled to know about any criminal convictions (note that this is changing is some cities), but asking for an arrest record is off-limits as innocent people can be arrested.
Confirming simply that applicants are on board with a background check is a good way to ensure you’ll have access to criminal information without personally having to risk asking anything that might be illegal. Likewise, credit checks and employer or former landlord references provide excellent insight to a tenant’s past behavior.
One pro tip: If possible, ask the tenant to share information for a former, rather than current, landlord. A current landlord will be highly motivated to get a bad tenant out, so they may not be the best source of information.
Questions Landlords Cannot Ask When Screening Tenants
Laws governing tenant screening exist at both the state and federal levels. State laws align with the state where the rental property is located, so even if you’re in California but your unit is in Illinois, Illinois laws apply.
The goal of landlord-tenant laws is to protect both parties. As such, Fair Housing Act rules particularly focus on removing opportunities for conscious or unconscious bias. Questions that might feel like — and even be intended as — polite small-talk, such as asking where a person’s accent is from or if they have any children, should be avoided since they relate to protected facets of personal identity that can be the basis for discrimination.
Here are some examples of questions that may seem benign, but are actually illegal to base any rental decisions on under the Fair Housing Act:
1. How old are you? Age is a protected category. With the exception of senior living communities, choosing whether to rent to a person based on their age is illegal.
2. Do you plan to have kids? Asking about children is off-limits, including inquiries into the possibility of having kids in the future. You can, however, ask how many people will be living in the unit. 3. Do you have any disabilities? If a unit is available to rent to the public, it must be made equally available to able-bodied renters and those with disabilities. Even directing a prospective tenant to a specific unit because you feel it’s better suited to their needs can be a violation of the Fair Housing Act.
4. Are you married? Since both relationship status and sexual orientation are protected classes under the Fair Housing laws, you should never ask a potential tenant about their marital status.
5. What church do you attend? Even if you’re just trying to make conversation, steer clear of anything that touches on religion or religious affiliation, which is its own protected class.
6. Where were you born? Even if seemingly innocent, questions regarding nationality or ethnic background are off-limits, since assessing a tenant based on this information is discriminatory.
Remember: Aspects of an individual’s identity that could be used to discriminate against them (even if it’s not at all your intention) are illegal. Even language that would seem innocuous, such as advertising a unit as “Great for young couples!” shows a preference for one group over another and can be held against you.
As a guideline, focus on the questions that will get you the necessary, need-to-know information from a tenant. Review the Fair Housing rules, and if a question seems like it might be out-of-bounds, don’t ask.
To cut out the guesswork and simplify the tenant screening process for yourself, consider using a standardized rental application to ensure everyone is treated fairly and you get the best information to make good decisions for your rental unit.
Are you feeling overwhelmed just reading this post and would rather avoid the tenant screening process altogether? Consider partnering with Overland Management! We help landlords eliminate unwanted responsibilities and get the best possible return on their rental property investments. Contact us today to learn more!