Topics You Cannot Discuss with Potential Tenants

The line between small talk and big trouble is getting thinner. Learn the laws regarding what you cannot ask your tenants to protect yourself from asking questions that could get you sued for discrimination.

If a tenant feels that you have rejected their rental application for a discriminatory reason, they might report you to the Department of Housing and Urban Development. If you are found guilty, you may be asked to pay for actual damages (including humiliation and suffering), make the housing available to the tenant, pay reasonable attorney fees and costs, and pay up to $16,000 to the Federal Government for your first violation. A third violation could cost you up to $70,000.

The Fair Housing Act

The Fair Housing Act is a national law under the Department of Housing and Urban Development. The law restricts you from asking prospective tenants questions regarding these seven topics:

  1. Race and ethnicity: A person’s race and ethnicity have nothing to do with what makes them a good or bad tenant. Therefore, asking potential tenants questions about race is a discriminatory practice.
  2. Skin color: Do not make any statements about the color of a potential tenant’s skin. The color of skin is not necessarily an indication of race or ethnicity and you should ask for correlation between the two. Skin color should have no bearing on whether you rent to a tenant and for that reason, the law mandates that you cannot ask about it.
  3. Religion: Do not ask about religion or mention nearby places of worship as a selling point to tenants because of a guess about their religion. Additionally, do not restrict furniture arrangements in the home on the basis of religion. For example, claiming a Buddhist might want to burn incense in a meditation room.
  4. Sex: Asking questions about sex includes sexual harassment and stereotyping genders. Therefore, making any type of comment regarding a potential tenant’s appearance or ability to defend themselves in the area violate the Fair Housing Act.
  5. National origin or ancestry: Asking where someone is from is a natural question in some communities, like Miami, for example. Miami is primarily made up of 1st or 2nd generation immigrants. An introductory question in casual Miami conversation is, “Where are you from?” In Miami, learning about people’s cultures isn’t an attempt to discriminate, rather it’s an easy way to form bonds with people. Two Cubans who are strangers instantly have something to connect about. A Cuban and Puerto Rican may bond because their homelands are known as “sister countries.” However, asking about national origin in other places that aren’t as culturally diverse as Miami can have malicious intent. For that reason, it is illegal to ask about national origin. A tenant might believe that their response is the reason why you’ve denied or accepted their application, which is considered discrimination.
  6. Familial status: You cannot ask a prospective tenant if she is pregnant, if they have a family or if they are looking to start a family. Even if you have concerns about babies crying or time off work making it difficult to pay rent, you are prohibited from asking these types of questions. It is your tenant’s responsibility to be a good tenant, you cannot make assumptions about whether your tenant will be based on possible outcomes. Your potential tenant can bring up their kids themselves, but not vice versa.
  7. Any disability: You may have concerns about tenants with disabilities and their ability to navigate certain buildings. However, having a disability does not directly affect the quality of a tenant. Therefore, you cannot ask questions regarding disability. You also cannot guide tenants with disabilities toward units you feel will be easier for them to use. Additionally, the law expects you to make minor accommodations for tenants with disabilities. The tenant’s disability or possible remodeling can have no weight in your decision to rent to them. According to the Fair Housing Act, they have equal opportunity to rent all units. Additionally, service animals are allowed in all units, regardless of what your pet policy is. You cannot discriminate against a tenant with a service animal.

Additionally, most states have Fair Housing laws that restrict you from asking tenants about:

  1. Age: Unless your unit is in a senior living community, age should never come up when renting to a prospective tenant. A tenant’s responsibility and financial ability to pay rent are important. However, it is important not to stereotype based on age. Don’t ask questions about when a potential tenant is retiring or if they will have a parent co-sign on the lease.
  2. Medical history: An injury or illness that a tenant once had should have no bearing on whether you rent to them. Their ability to pay rent is not dependent on their medical history.
  3. Sexual orientation: A landlord could have bias against certain sexual orientations, even if subconsciously. For that reason, it is better not to know your tenant’s sexual orientation. It doesn’t impact a tenant’s abilities to pay rent on time and be a good tenant; therefore, the law mandates you do not ask about it.
  4. Marital status: A couple’s marital status does not affect their ability to be good tenants. Asking questions about marital status is a discriminatory practice because a landlord might be biased against renting to an unwed couple.

Criminal History

Be wary about asking for potential tenant’s criminal histories. While there is no federal policy that expressly prohibits you from asking if a tenant has been convicted, a notice put out by the Department of Housing and Urban Development claims that the Fair Housing Act Standards prevent landlords from denying tenants with criminal histories.

According to the notice, black and Hispanic/Latinx populations are incarcerated at a disproportional rate to Caucasians. Therefore, denying an application because of a conviction is discrimination and does not convey whether someone will be a good or bad tenant. The statement does say, however, that you can ask and deny a tenant if they have been convicted of a violent crime or is on the sex offender registry, which are both characteristics that could make someone a bad tenant.

Additionally, while you can ask about convictions, you definitely cannot ask about arrests. Many people who are arrested are found innocent and, thus, arrest record does not give any indication of the quality of a prospective tenant.

Be Fair

Aside from avoiding the above topics, you can protect yourself by having a written nondiscriminatory criteria that you give all tenants. Apply that criteria equally and consistently to all applicants, and it will be difficult for an applicant to sue you for discrimination.

Natalie Calvo