Several federal, state, and local laws provide severe financial penalties for landlords who discriminate on the basis of race, religion, sex, age, and a number of other categories. And the categories named in the various statutes are not the only groups that are protected— the California Supreme Court has prohibited discrimination based on “personal characteristics” or “personal traits,” meaning a person’s geographical origin, personal beliefs, or physical attributes.
The most important decision a landlord makes, save possibly for deciding whether to purchase rental property in the first place, is choosing tenants. You can legally refuse to rent to prospective tenants with bad credit histories, unsteady employment histories, or even low incomes that you reasonably regard as insufficient to pay the rent.
Fair advertising, screening and selection process
Be prepared to show that your tenant advertising, screening, and selection processes have been based on objective criteria and that a more qualified applicant has always gotten the rental unit.
Document reasons for rejecting a tenant
To protect yourself in advance, always document your reasons for rejecting a tenant. A tenant whom you properly reject may nevertheless file a discrimination complaint with a fair housing agency. Recognizing this, you want to be able to prove that you had a valid business reason for refusing to rent to the particular person, such as negative references from a previous landlord or poor credit history. This means you need to routinely document your valid reasons for rejecting all potential tenants before anyone files a discrimination claim.
Do a credit check on every prospective tenant and base your selection on the results of that credit check.
Accepting or rejecting tenants based on objective criteria tied to a credit report is the best way to protect yourself against an accusation that you’re using a bad credit history as an excuse to illegally discriminate against certain prospective tenants. For example, if you establish rules saying you won’t rent to someone with bad credit or who is evicted by a previous landlord for nonpayment of rent (information commonly found in credit reports), be sure you apply this policy to all applicants.
Don’t discriminate against married or unmarried couples by counting only one spouse’s or partner’s income (typically the man’s).
Always consider the income of both persons living together, married or unmarried, in order to avoid the accusation of marital status or sex discrimination.
Don’t give too much weight to years spent at the same job, which can arguably discriminate against certain occupations.
For example, software designers and programmers commonly move from one employer to another. If you insist that an applicant have a minimum number of years with the same employer, you may open yourself up to a charge that you are discriminating against applicants based on their “personal characteristics or traits,” which is against the law.
Negative References From Previous Landlords
You can legally refuse to rent to someone based on what a previous landlord or manager has to say— for example, that the tenant was consistently late paying rent, broke the lease, or left the place a shambles.
Civil Lawsuits Involving a Tenant
Background reports typically indicate whether the applicant has been involved in civil lawsuits, such as an eviction or breach of contract suit. For many landlords, an eviction lawsuit is a red flag. Can you reject a tenant on this basis? It depends. If a former landlord has filed and won an eviction lawsuit against an applicant, it may be reasonable to reject on that basis.
Not surprisingly, most landlords do not want to rent to tenants with convictions for violent sexual offenses or any sexual offenses against children. Checking a prospective tenant’s background by ordering an investigative background report is one way to find out about a person’s criminal history.
The Department of Justice posts the database on a website, www.meganslaw.ca.gov. (Penal Code § 290.46.) However, it is a crime to consult the website database for any reason other than to “protect a person at risk,” and to subsequently deny housing to an applicant because of his placement on the list. Violating this law could result in triple actual damages, punitive damages, or a civil penalty of up to $ 25,000, as well as attorneys’ fees. Despite these strictures, many landlords routinely check the Megan’s Law database. If you do, be aware that it has promised far more than it actually delivers.
Landlords may not legally inquire as to tenants’ or applicants’ immigration status. (CC § 1940.3.) This is true even if a local city or county ordinance seems to require it, as such ordinances are now invalidated by state law.
Incomplete or Inaccurate Rental Application
Your carefully designed application form will do its job only if the applicant provides you with all the necessary information. Obviously, if you can reject an applicant on the basis of negative references or bad credit history, you can reject them for failing to allow you to check their background, or if you catch them in a lie.
You can legally refuse to rent to people with pets, and you can restrict the types of pets you accept. You can also, strictly speaking, let some tenants keep a pet and say no to others— because “pet owners,” unlike members of a religion or race, are not as a group protected by antidiscrimination laws. However, from a practical point of view, an inconsistent pet policy is a bad idea because it can only result in angry, resentful tenants.
Examples of Forbidden Types of Discrimination
- advertising or making any statement that indicates a limitation or preference based on race, religion, or any other protected category
- falsely stating that a rental unit is unavailable
- setting more restrictive standards for selecting certain tenants
- refusing to negotiate for a rental agreement or lease
- providing inferior housing conditions, privileges, or services
- terminating a tenancy for a discriminatory reason
- providing or suggesting different housing arrangements (commonly known as “steering”)
- refusing to allow a disabled person to make “reasonable modifications” to her living space, or
- refusing to make “reasonable accommodations” in rules or services for disabled persons.
Fair Housing Laws
Fair Housing Act
Website: www.hud.gov (search “California fair housing”)
Department of Fair Employment and Housing
A Northern California nonprofit organization with consumer education projects, a free mediation service for landlords and tenants, and authority to investigate reports of housing discrimination.
The federal Fair Housing Act and the state’s Unruh and Fair Employment and Housing Acts prohibit discrimination against people who:
- have a physical or mental disability (including, but not limited to, hearing, mobility and visual impairments, chronic alcoholism or mental illness, AIDS, AIDS-Related Complex, HIV-positive status, and mental retardation) that substantially limits one or more major life activities
- have a history or record of such a disability, or
- are regarded by others as though they have such a disability.
Although it may seem strange, an alcoholic is considered disabled. When dealing with suspected alcoholism, mental problems, or drug use, recognize that rejecting on these bases alone is illegal.
Under the Fair Housing Act, a person who has a past drug addiction is classed as someone who has a record of a disability and, as such, is protected under the fair housing law. You may not refuse to rent to applicants solely because they are ex-addicts, even if they have felony convictions for drug use. Put another way, your fear that the person will resume her illegal drug use is not sufficient grounds to reject the applicant. If you do a thorough background check, however, and discover a rental or employment history that would defeat any applicant, you may reject the person as long as it is clear that the rejection is based on these legal reasons.
The Rights of Tenants With Disabilities
The Fair Housing Act requires that you:
- accommodate the needs of a tenant with a disability, at your expense (42 U.S.C. § 3604( f)( B) (1988)), and
- allow tenants with disabilities to make reasonable modifications of their living unit at their expense if that is what is needed for the person to comfortably and safely live in the unit. (42 U.S.C. § 3604( f)( 3)( A) (1988).)
Landlords are expected to accommodate “reasonable” requests, but they need not undertake changes that would seriously impair their ability to run their businesses.
A service animal, under federal law, is a dog that has been specifically trained to perform a task, or do work, for the benefit of a person with a disability (whether the disability is physical or mental).
The task that the animal performs must be directly related to the person’s disability. Examples of service animals include:
- Guide dogs or seeing eye dogs. These dogs are trained to accompany people who are blind or have severe vision impairment.
- Hearing or signal dogs. They are specially trained to alert persons with significant hearing loss or who cannot hear a specific range of sound (such as a doorbell)
- Psychiatric service dog. These animals are trained to assist persons with specific psychiatric problems. They might “sweep” a room, thus assuring someone with PTSD that the coast is clear; turn on lights; remind someone to take medication; and intervene if a person is in imminent danger of self-harm.
- Seizure response dogs. These dogs protect someone who is in the throes of a seizure. They can also go for help. Some can even sense the imminent onslaught of an episode, and intervene or take the person to a safe place.
- Sensory signal dogs. These animals assist persons who have autism.
Dogs can certainly be trained to meet other requirements, such as supplying emotional support, but unless they have been trained to perform specific tasks related to the owner’s disability, the dog is not a service animal. According to the Americans with Disabilities Act, whose rules generally apply in private residential rental settings, the “provision of emotional support, well-being, comfort, or companionship” doesn’t qualify the dog as a service animal. (28 Code of Federal Regulations Sec. 35.104.)
Do you have to rent to people with dogs?
No, unless the dog is a certified service dog. “Emotional Support” dogs are not service dogs. Learn more about service dogs.
Falsely Claiming Disabled Status In Order to Keep an Animal
When it comes to falsely claiming disabled status, the law in many states has stepped in. Almost half make this fraud a crime, and since 1994 in California, doing so is a misdemeanor, punishable by up to six months in jail and a fine of up to $ 1,000. (Calif. Penal Code Sec. 365.7.) You might think the threat of a criminal charge would deter most scammers, but again, reality has tempered this reasonable conclusion. Remember, you are not allowed to quiz tenants on the details or even the nature of their disabilities, which makes it very difficult for you to prove that the tenant is falsely claiming disabled status. And even if you can come up with proof, you’ll need to convince an already-overworked district attorney’s office to bring charges. This crime might fall rather low on their list of priorities.
Phony “Certification” Mills for Service Animals
The second move undertaken by tenants with dogs who want to circumvent the “no pets” policy is to convince the landlord that the animal is in fact a service animal. The law does not require certifications, or attestations, or any specific proof that the animal has been specifically trained. The only requirement is that the animal was trained (even by the owner), and does work that addresses the disability.
If you are presented with a service dog certificate, you can ignore it and simply ask, “What does this dog do for you?” Be careful, however: you cannot get into the details of the individual’s mental or physical condition, so the extent of your questions concerning the dog is quite limited.
You may not refuse to rent to applicants simply because they are receiving public assistance. You may, however, refuse to rent to persons whose incomes fall below a certain level, as long as you apply that standard across the board.
Source of Income
California law prohibits landlords from discriminating based on the tenant’s source of income. If a tenant household meets the landlord’s objective income criteria, the landlord may not refuse to accept the tenants just because they are not employed. (Govt. Code § 12955.) However, the Fair Employment and Housing Act does not require the landlord to accept government rent subsidies or participate in Section 8. You could decline to participate in the Section 8 Housing Choice Voucher Program, unless your property is in a locality that requires participation.
Personal Characteristics or Traits
The California Supreme Court has ruled that discrimination on the basis of an individual’s “personal characteristic or trait” is also illegal. This means that you may not discriminate on the basis of a current or prospective tenant’s geographical origin, physical attributes, or personal beliefs. Only valid business reasons, applied uniformly to all tenants, will make it past a fair housing complaint.
You can legally establish reasonable space-to-people ratios, but you cannot use overcrowding as a pretext for refusing to rent to tenants with children, if you would rent to the same number of adults.
The Uniform Housing Code (the UHC) is part of California’s state housing law and is intended to prevent the unhealthy and dangerous results of overcrowding. (H& S § 17922( a)( 1).) The UHC addresses the question of occupancy in terms of the size of the rental’s bedrooms. A room that the landlord has “designed or intended” to be used as a bedroom (CC § 1941.2( a)( 5)) must be at least 70 square feet for one person, plus an additional 50 square feet for each additional occupant:
- One person: 70 square feet
- Two people: 120 square feet, and
- Three people: 170 square feet (UHC § 503).
Cities are free to adopt their own occupancy specifications, and some (notably San Francisco) have allowed for more occupants per bedroom.
Rentals to Single Boarders in Single-Family Homes
We have all seen advertisements like this, in newspapers and newsletters and on supermarket bulletin boards: “Widow seeks single, older Christian lady to share her home as a boarder. . . .” Based on what you know about illegal housing discrimination, you might wonder how these advertisements escape prosecution. Isn’t the ad above a perfect example of marital, age, religious, and sexual discrimination?
The answer is “Yes.” But the reality of the situation is that few spurned boarders, and certainly fewer government agencies, are interested in suing one-person landlords and forcing them to accept a housemate not of their choosing. And state housing law (Government Code § § 12955( c) & (d) and 12927( c)) does, in any event, make housing preferences perfectly legal as long as there is:
- only one boarder, and
- no discriminatory advertising
The ban against discriminatory advertising means that the owner must not make any discriminatory “notices, statements or advertisements.”
As you might expect, this requirement has proved to be quite unworkable. How can the widow communicate her preferences for her boarder without making any “notices, statements or advertisements”?