Landlords must understand what they can’t ask their applicants or risk legal action. This applies to questions on the application as well as any conversations had during a showing, over text, or through email.
What Qualifies as an Illegal Question?
The Fair Housing Act is a federal regulation that protects certain groups of people that are potentially at a higher likelihood of experiencing discrimination. What this means is that landlords cannot deny housing to applicants on the basis of any of these protected classes:
- Race
- Color
- National Origin
- Religion
- Sex (including gender identity and sexual orientation)
- Familial Status
- Disability
These seven protected classes include many sub-genres, many of which are covered in this article. Be sure to connect with an attorney to check over your application questions and requirements.
Discrimination for belonging to a protected class can happen many different ways, in addition to simply denying housing. Some of those include:
- Evicting a tenant or tenant’s guest
- Harassing a tenant or tenant’s guest
- Providing different housing or facilities
- Charging different rental or security deposit prices
- Using different qualifying criteria (such as higher income, cleaner credit history, etc.)
12 Illegal Rental Application Questions
Here’s a list of the most common illegal questions that get asked of potential tenants:
- How Many Children Do You Have?
- In What Country Were You/Your Parents Born?
- Is English Your First Language?
- Do You Have a Service Animal or Emotional Support Animal?
- Have You Ever Been Arrested?
- Where Do You Go to Church?
- What is Your Sexual Orientation?
- Are You Disabled in Any Way?
- Are You Married?
- Are You Pregnant?
- How Old Are You?
- Are You on Food Stamps?
1. How Many Children Do You Have?
This one can be a little tricky and needs to be navigated with some nuance. First, you cannot deny housing based on the number of children that someone has because it falls under the protected class of familial status.
However, you CAN ask for the names of everyone who will be living at the property. You can also require anyone over the age of 18 to sign the lease, so in essence, you can figure out how many children your potential tenant has (although that shouldn’t figure into your decision).
This can get even trickier in person. When you’re showing a house to a potential tenant, you cannot ask them questions such as:
- “Tell me about your kids!”
- “Are your kids well behaved?”
- “Do your kids have friends in the area?”
- “Your kids are so cute, how old are they?”
Yes, it’s difficult because normal people ask these questions in normal conversation. However, the simplest solution here is to simply not ask anything about their children, as even seemingly innocuous questions can be construed as probing to find out about their familial status and can lead to a lawsuit.
You are, however, allowed to point out child-friendly amenities in the area but without implying it’s for their children. For example, you cannot say, “We have lovely schools around here—do you have any kids in grade school?”
But you can say, “We have great schools around here for children, and the park is just across the street.” Just as long as you’re not referring directly to them having children or fishing for information.
It’s better to stay away from the subject of children altogether unless the applicant brings it up. If they have children, they are probably going to ask if it’s a child-friendly neighborhood, to which you can answer.
2. In What Country Were You/Your Parents Born?
Since race and national origin is a protected class under the Fair Housing Act, stay away from these types of questions. Do not try to probe into discussions about their culture, hometown, or anything about the country they may or not have been born in.
Some property managers include a check box for the applicant’s race. You can be sued for discrimination for having this on your application.
3. Is English Your First Language?
This question could imply that you are asking about their nationality and/or race, both of which are protected classes. Be sure that you do not imply in the application, any conversations you have, or any advertisements you place that you are only looking for native English speakers.
Do not use anything related to their culture or language as a basis for choosing one applicant over another.
4. Do You Have a Service Animal or Emotional Support Animal?
Service animals are not considered pets, and are therefore not allowed to be denied into your housing. You may not apply other policies relating to pets, such as denying applicants because they own a certain breed of dog or their pet surpasses a certain weight.
On the application itself, you can ask if they have pets, and the applicant is allowed to mark “no” if they have a service or emotional support animal (ESA).
In person, it can get a little trickier.
Service animals are trained to provide a specific function or assistance to a person with a disability. If it is clear and obvious the function of the animal (like helping a blind person move around safely), then you cannot ask questions about it.
However, if it’s not immediately obvious, you are allowed to ask two questions:
- Is the animal required because of a disability?
- What work or tasks has the animal been trained to perform?
If they answer these questions in a way that shows they need a service animal, then you cannot ask any more questions as they are not required to explain anything else about their disability to you. At this point, the animal is clearly not considered a pet, so property managers don’t need to know anything else.
Verifying an ESA
However, when asking questions about their animals, you’ll likely discover if it’s an ESA as opposed to a service animal.
You are permitted to ask if they have verification that it is indeed an ESA. An ESA verification letter must come from a licensed healthcare provider, such as a licensed primary care physician or mental health professional.
There are many certifications, badges, or even fake letters that people can acquire, usually over the internet. These do not classify as verification that they need an ESA, and you can deny their rental application.
However, some landlords will deny ESA verification letters because they do not give enough detail about the applicant’s condition. That is done on purpose to protect the privacy of their patient.
5. Have You Ever Been Arrested?
You are well within your right to run a criminal background check and ask on the application if they have any convictions.
However, as arrests do not imply guilt, it is illegal for you to ask about arrests on an application. Simply asking the question could be misconstrued that you plan to deny their application because of a previous arrest.
Some cities/counties have banned the use of criminal background checks for housing purposes. Make sure that’s not the case with your rental property’s location.
6. Where Do You Go to Church?
This, or any other variation of this question, falls under the protected class of religion.
Be sure you don’t also ask:
- Do you attend a church?
- What denomination do you belong to?
- Do you believe in God?
- Do you own a Bible?
Remember, don’t ask these either on the application or in person.
7. What is Your Sexual Orientation?
This would perhaps be a strange question to ask on an application, but there are property managers who try to do it. It clearly falls under the protected class of sex.
Furthermore, be sure that you don’t say or imply anything that could be seen as homophobic or discriminating against any sexual or gender identification.
8. Are You Disabled in Any Way?
This may seem like an innocent question, as a property manager may be willing and able to help accommodate a disabled person. However, this can easily be misconstrued, so even asking this question on an application can lead to a discrimination lawsuit.
Furthermore, be sure not to even ask this indirectly, such as “are there any special accommodations you would need upon moving into the property?”
Also, take note that landlords must agree to reasonable accommodation requests to people with disabilities. These could include allowing the tenant to send the rent by mail or electronically instead of in person, or installing grab bars in the bathtub.
You don’t have to install massive changes such as build a cement ramp or install an elevator in your house. Also, you can charge applicants for any reasonable accommodation requests they have, and you can require them to restore the unit to its original condition.
If they do not comply with these requests, you can deny their application.
9. Are You Married?
This question would be a violation of the protected class of familial status. Some property managers may want to deny tenancy to unmarried couples because of their religious beliefs or if they’re worried a breakup could result in a remaining tenant who wouldn’t be able to afford rent.
Also be sure you don’t ask these variants:
- “Are you planning to get married?”
- “So, when’s the big day?”
Also be sure not to hint that you favor married couples in any advertising, in person, or by the wording of your application questions.
10. Are You Pregnant?
This question would fall under discrimination based on familial status. It’s often thought that more children will do more damage to a property. Also a baby could potentially decrease the tenant’s ability to maintain the property or might disturb any close neighbors (especially in an apartment).
Stay away from this question, as the applicant can construe it as discriminating against them for having too many kids.
Even if it’s obvious she’s pregnant, stay away from any questions of this sort to be sure you don’t have any issues.
11. How Old Are You?
Asking after age can be a form of discrimination. For example, if they are very young, a property manager might not find them mature enough to pay rent, handle utility bills, and other requirements of being in a rental. Others might be seen as too old to handle the responsibilities.
In order to protect these people, the Fair Housing Act doesn’t allow for you to ask after age.
However, there are a few minor exceptions. These are:
- You can ask if they’re over 18 – This is because you want every adult staying in the property to sign a lease.
- Retirement communities often require a certain age – You can require the tenants to be of a certain age in order to live there. Retired people are often the best tenants you can find.
- You can offer discounts to senior citizens – For example, you can require a reduced security deposit. You must be very careful with this. It could be seen that you “offer” a discount so you can find out if the applicant is a senior citizen just so you can deny them housing. If you’d like to offer a discount, word your question carefully and be sure to tell them it’s not required to disclose their age. If you plan to do this, be sure to consult a landlord & tenant lawyer first to avoid any unintentional discrimination.
12. Are You on Food Stamps?
This, or any other question about being on public assistance is considered discriminatory. You are allowed to ask about their monthly income, but not if it comes from welfare, food stamps, or any other public assistance.
General Tenant Screening Best Practices
Here are a few general ideas to keep in mind as you screen your tenants:
- Be sure to treat everyone the same – You cannot have different requirements for different applicants. For example, if a family has five kids and you don’t want to rent to them, you can’t require them to earn $200k a year just to exclude them—unless you hold that requirement for everyone.
- Be careful of your in-person questions as well – It can be easier to make sure your application isn’t discriminatory because you have time to put it together and review it. However, when chatting with someone in person, it’s easy to ask questions about religion, kids, or marriage without meaning to ask potentially discriminatory questions.
- Have everything reviewed by a landlord & tenant lawyer – it’s much cheaper to consult a lawyer ahead of time instead of hiring one to help you in a discrimination lawsuit.
