Landlords have a right to screen prospective tenants, and you'll want to be as thorough as possible. Certain questions are simply off-limits. Asking a tenant about their race or religion are big no-nos, as are questions about arrest records.
There are some main topics you'll want to steer clear of if you're going to stay on the right side of the law.
Questions That Violate Fair Housing Laws
Avoid any question that could seem discriminatory toward a certain class of people. This can be interpreted as discrimination under the Federal Fair Housing Law or under your state's Fair Housing Law.
The Federal Fair Housing Act protects seven classes: race, color, religion, sex, national origin, disability, and familial status. In addition, many states have additional protected classes such as marital status and sexual orientation. Here are a few questions or comments you'll want to avoid, even if you're just throwing them out there to make innocent conversation:
- You would love the area. A lot of minorities live here.
- Are you white or Hispanic?
- There aren’t a lot of temples around here, so I don’t know if you’d fit in.
- I don’t feel safe renting to a woman on the first floor.
- Where were your parents born?
- What is your first language?
- Are you disabled?
- I don’t allow animals, so I can't allow your service dog.
- I don’t rent to people with kids.
- Are you pregnant? I don’t want a baby disturbing the other tenants.
- Where do your kids go to school?
- Do you go to the church in this neighborhood?
Personal Questions to Avoid
You should also avoid questions about marital status, sexual orientation, source of income, age, or any other possible protected class just to be on the safe side, at least if you're not very sure of the laws in your state. These types of questions can open the door to trouble:
- Are you married?
- Are you divorced?
- Are you gay?
- How old are you?
- (To a man:) I think having your boyfriend visit will make the other tenants uncomfortable.
- You’re going to have to pay a higher security deposit because your income is from unemployment benefits and I’m afraid I might have to evict you in the future.
There's a big difference between being arrested and being convicted of a crime. You can ask a prospective tenant if they have ever been convicted, but you cannot ask if they have ever been arrested.
A conviction is information that can be readily discovered anyway simply by running a background check on the individual. But keep in mind that you can't discriminate against a person because they have been convicted of a crime in many states, including California.
The crime would have to influence their ability to be a good tenant, such as an illegal drug conviction or a history of violent offenses that could put other tenants at risk.
Avoid Questions Outside Your Normal Qualifying Standards
You must have the same qualifying standards for all prospective tenants. Set a list of questions that you'll ask everyone. You can be accused of discrimination if you don't follow the exact same procedures for everyone.
For example, while it's perfectly legal to perform credit checks on tenants as long as they give their consent, you can't perform credit checks only on certain groups of people. Another example would be if you asked people who were poorly dressed about their eviction history or criminal convictions, but you ignore such questions for people who present a more acceptable appearance.
Outside of prohibited questions, you're usually safe if you apply the same standards to everyone who submits a rental application. The easiest and least expensive way of doing this is to ask them to name references on the application: employer, past landlord, and one or more personal contacts.
You're entitled to call each and every reference, and you should do so. Just do it with all applications.