Can Landlord Discriminate When Renting?

Tenants often ask, “can a landlord not rent to me for”, for example, “not having a high enough credit score” or “having a certain kind of pet” or “not having high enough income”. The feeling that many tenants have in this regard is that the landlord is not justified in denying a rental application based on these types of criteria, and thus, the tenants should have some remedy under the law to require the landlord to rent to him or her. Under the federal or state law, however, landlords can discriminate against rental applicants for any reason that law does not expressly prohibit. If the law does not prohibit the discrimination, landlords can discriminate for whatever reason they deem appropriate, otherwise known as the “freedom of contract.”

To be clear, no state or federal law recognizes or grants to persons the right to housing, though through a variety of state and federal housing programs, many people are able to obtain government-assisted housing if they meet certain statutory and regulatory criteria. But such programs are privileges granted by those statutory and regulatory schemes, and if a landlord does not participate in those programs, he or she is not bound by those regulations. Since housing is not a constitutional or statutory right, therefore, landlords have the right to freely contract with whomever and however they choose.

The only limitations to the landlords’ freedom of contract are the laws prohibiting discrimination against protected classes, known as Fair Housing laws. Under Fair Housing laws, landlords (who meet certain statutory qualifications) are prohibited from certain discriminatory acts, such as,

  • refusing to sell or rent to and/or discriminating against persons based on race, color, religion, sex, disability, familial status, or national origin in the terms, conditions or privileges of the sale or rental;
  • showing and/or indicating preferences or limitations based on race, color, religion, sex, handicap, familial status, disability or national origin in the terms, conditions or privileges of the sale or rental; and/or
  • interfering with a person’s enjoyment of a housing right or retaliating against a person based on discriminatory reasons.

In this regard, landlords’ freedom of contract is limited, and failure to comply with these laws can result in civil action against the landlord. Otherwise, landlords may discriminate for any other reason not prohibited by law. There is a notable caveat to this rule. That is, the “disparate impact theory”. See article on Disparate Impact Theory here.

Basically, the Disparate Impact Rule means that a landlord may be in violation a Fair Housing law if his or her discrimination has a disparate impact on a protected class. In other words, the landlord’s discrimination on its face may be appear legal, but when its impact is considered in totality, the discrimination may be harming the protected class for whom the law is designed to protect, to the point that a judge would prohibit the landlord from continuing the discrimination.

Here are some common examples of why a landlord can legally discriminate against a rental applicant. The applicant:

  • does not have sufficient income;
  • cannot verify the source of income;
  • does not have any state-issued ID;
  • does not have the means to allow the landlord to verify income or credit or criminal history;
  • has a low credit score;
  • has declared bankruptcy within a certain period of time prior to application;
  • has a recent history of unpaid bills;
  • has a relative history of evictions or landlord disputes;
  • has prior charges or convictions for felonies or dangerous crimes;
  • has no or bad character references;
  • has too many proposed occupants to live in the dwelling;
  • does not properly complete or cooperate with the landlord’s application process; or
  • cannot verify that he or she is able to comply with the full term of the lease.

If you are a landlord, consult with a landlord-tenant attorney to ensure your application procedures are legally sound and be sure to follow those procedures. If you are a tenant, work on improving those items stated above to better ensure your rental application will be accepted. If you believe, however, that your are being discriminated against as a protected class under the law, you should seek legal counsel.