Here’s a breakdown of when a landlord can rightfully reject an applicant, as well as some red flags that might indicate bad faith on a landlord’s part.
A landlord may legally reject an applicant for legitimate business reasons such as
A landlord can also refuse to rent to smokers or disallow pets because smokers (and pet owners) as a group are not protected by antidiscrimination laws. If a landlord’s policy is no pets, no smoking, or some other legitimate lease or rental agreement term, the only hope for a tenant who doesn't qualify under these rules is to try to negotiate.
Finally, landlords can limit the number of occupants for health and safety or legitimate business reasons. For example, if a rental’s septic system can handle only four residents, the landlord would be on solid ground restricting the number of tenants to four. However, a landlord may not adopt a low occupancy standard for the purpose of prohibiting families, for example—this would be a violation of fair housing laws.
The Federal Fair Housing Acts (42 U.S. Code §§ 3601-3619) prohibit discrimination on the basis of race, color, religion, national origin, sex (including gender identity and sexual orientation), age, familial status (having children), and physical or mental disability (including alcoholism and past drug addiction). In addition, many states and cities also prohibit discrimination based on marital status and source of income.
Most landlords will want you to fill out a rental application with information on your employment, income, credit and financial information, rental housing history, and possibly any criminal convictions. In most states, it’s legal to ask for all this information and use it to make rental decisions (note that some states prohibit or restrict landlords' inquiries about criminal histories, though). Landlords may also legally ask you for your Social Security and driver’s license numbers and (except in New York City, Colorado, and California) for proof of your legal residency in the United States. Landlords may even ask if you smoke or if you’ve ever been sued.
How far can landlords go? They can ask for any information that will:
Questions that don’t relate to these two issues are probably not legal. Keep in mind, however, that not all discrimination is illegal, so some questions that don't not “sound right” might in fact be legal. (See “Can Landlords Ask About a Potential Tenant’s Relationships” below.)
Look at it this way: When you rent a car, you’re often asked for multiple forms of ID and your driving history. Renting a place to live isn’t all that different: The landlord, as much as the car rental agency, needs to know whether you’re a good risk and how to find you if things go awry. In fact, since rental property is a much bigger investment than a car, a landlord is motivated to be even pickier.
Money talks, especially in rental housing. If the landlord reasonably concludes that you can’t afford to pay the rent in view of your income and existing debt level (which will be visible on your credit report), they are not obligated to rent to you. Many landlords use a rent-to-income ratio of one-to-three (rent can be no more than one-third of your income) as a rule of thumb.
As a broad generalization, you too probably don’t want to spend more than 25% to 35% of your monthly take-home pay on rent, but this will obviously depend on your other expenses. And you won’t want to live in a penthouse if it means you need to eat popcorn every night.
Most landlords don’t care a bit about whom you share your bed with—they’re much more interested in whether you pay your rent on time and are a decent housekeeper and a considerate neighbor. Unfortunately, a few landlords see themselves as enforcers of their chosen code of religion or morality. For example, some landlords don’t want to rent to heterosexual unmarried couples, and some refuse to rent to homosexual couples.
Discrimination on the basis of sexual orientation is illegal under federal fair housing laws. However, in many states, unmarried couples aren’t protected by antidiscrimination laws, meaning landlords can get away with these kinds of choices. In these states, it wouldn’t be illegal for a landlord to question you and your would-be roommate about the nature of your relationship (for example, by asking if you’re “together”).
If you and your friend are questioned concerning your relationship, what should you do? This is an issue for all roommates, even the ones who are just friends. Think about what this line of questioning bodes for future dealings with this landlord: Here is a businessperson who is inappropriately interested in customers’ private lives. Chances are good that the landlord spends their time and energy checking up on tenants’ love lives, at the expense of running a pleasant and livable building. If at all possible, look elsewhere.
While landlords are entitled to ask business-related questions on a rental application or during an interview, there is an important hitch: They should subject all applicants to the same set of basic questions. Because federal and state antidiscrimination laws make it illegal to single out members of certain groups for special treatment (such as questioning only people of a certain race or ethnic background), interview or application questions that aren’t directed at everyone constitute an illegal practice.
For example, landlords who ask about immigration history should ask all tenants, not just those whom they suspect might be in the country illegally. Questioning only those from Asia would amount to illegal discrimination on the basis of national origin. Similarly, requiring credit reports from only Black applicants would also be considered illegal discrimination.
Do a little background investigation of your own. Conscientious landlords will probably take the time to learn about your rental and employment history. There’s no reason why you, too, can’t ask a few questions to find out whether you want to rent from this landlord.
Ask current tenants and neighbors what it’s like to live there; if you can, ask the tenant whose unit you’re considering why they’re moving out. If the current tenant is leaving in disgust over poor management or dreadful neighbors whom the landlord won’t evict, you’ll want to think twice about signing a lease or rental agreement. Keep in mind that a building with a large turnover rate, and especially one where evictions are common, is probably not run very well.
]]>The laws in most states give tenants legal rights, such as the right to complain to a government agency about unsafe living conditions. Most states prohibit landlords from retaliating against tenants who exercise their legal rights; an example of retaliation would be a landlord terminating the tenancy of someone who complained to a government agency about a major repair problem in the rental. This chart lists tenant rights which are protected from landlord retaliation, and situations in which landlord retaliation is presumed. Depending on the circumstances, a tenant might have several legal options for responding to a landlord's retaliatory actions.
For additional details, see your state statute. (The citation is provided here, and you can visit the Library of Congress's legal research site for links to state statutes.)
Alabama • Alaska • Arizona • Arkansas • California • Colorado • Connecticut • Delaware • District of Columbia • Florida • Georgia • Hawaii • Idaho • Illinois • Indiana • Iowa • Kansas • Kentucky • Louisiana • Maine • Maryland • Massachusetts • Michigan • Minnesota • Mississippi • Missouri • Montana • Nebraska • Nevada • New Hampshire • New Jersey • New Mexico • New York • North Carolina • North Dakota • Ohio • Oklahoma • Oregon • Pennsylvania • Rhode Island • South Carolina • South Dakota • Tennessee • Texas • Utah • Vermont • Virginia • Washington • West Virginia • Wisconsin • Wyoming
Statute: Ala. Code § 35-9A-501
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Statute: Alaska Stat. § 34.03.310
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: Ariz. Rev. Stat. § 33-1381
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Ark. Code § 20-27-608
Retaliation is prohibited when: Tenant complains to landlord or government agency. The statute only prohibits retaliation by landlord who has received notice of lead hazards.
Statute: Cal. Civ. Code §§ 1940.35, 1942.5
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 180 days of tenant’s act.
Statute: Colo. Rev. Stat. §§ 38-12-509, 38-12-1203, 38-12-1205
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Statute: Conn. Gen. Stat. §§ 47a-20, 47a-33
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Del. Code tit. 25, § 5516
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 90 days of tenant’s act.
Statute: D.C. Code §§ 42-3505.02, 42-3505.06
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Fla. Stat. § 83.64
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: Ga. Code § 44-7-24
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 3 months of tenant’s act.
Statute: Haw. Rev. Stat. § 521-74
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant exercises a legal right.
Statute: No statute, but Idaho courts have recognized retaliation as a defense to evictions. Wright v. Brady, 889 P.2d 105 (Idaho. App. 1995)
Statute: 765 Ill. Comp. Stat. § 720/1
Retaliation is prohibited when: Tenant complains to landlord or government agency.
Statute: Ind. Code §§ 32-31-8.5-0.5
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: Iowa Code § 562A.36
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 1 year of tenant’s act.
Statute: Kan. Stat. § 58-2572
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Statute: Ky. Rev. Stat. § 383.705
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 1 year of tenant’s act.
No statute
Statute: Me. Rev. Stat. tit. 14, §§ 6001, 6021-A
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right. Also when the tenant has complained to a fair housing agency; has informed the landlord that the tenant or tenant’s child is a victim of domestic violence, sexual assault, or stalking; or has communicated to the landlord about or has filed a complaint about the landlord’s or landlord’s agent’s act of sexual harassment.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Md. Code Real Prop., 8-208.1, 8-208.2
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Mass. Laws ch. 239, § 2A; ch. 186, § 18
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Mich. Comp. Laws § 600.5720
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 90 days of tenant’s act.
Statute: Minn. Stat. §§ 504B.285, 504B.441
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 90 days of tenant’s act.
Statute: Miss. Code §§ 89-8-9, 89-8-17
Retaliation is prohibited when: Tenant exercises a legal right.
No statute
Statute: Mont. Code § 70-24-431
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: Neb. Rev. Stat. § 76-1439
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Statute: Nev. Rev. Stat. § 118A.510
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: N.H. Rev. Stat. §§ 540:13-a, 540:13-b
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: N.J. Stat. §§ 2A:42-10.10, 2A:42-10.12
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: N.M. Stat. § 47-8-39
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: N.Y. Real Prop. Law § 223-b
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 1 year of tenant’s act.
Statute: N.C. Gen. Stat. § 42-37.1
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 12 months of tenant’s act.
No statute
Statute: Ohio Rev. Code § 5321.02
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
No statute
Statute: Or. Rev. Stat. § 90.385
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: 68 Pa. Cons. Stat. §§ 250.205, 250.504-A, and 399.11
Retaliation is prohibited when: Tenant is involved in tenants’ organization or tenant exercises a legal right.
For exercise of legal rights connected with utility service, retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: R.I. Gen. Laws §§ 34-18-46, 34-20-10, and 34-20-11
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Statute: S.C. Code § 27-40-910
Retaliation is prohibited when: Tenant complains to landlord or government agency.
Statute: S.D. Codified Laws §§ 43-32-27, 43-22-28
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 180 days of tenant’s act.
Statute: Tenn. Code §§ 66-28-514, 68-111-105
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant exercises a legal right.
Statute: Tex. Prop. Code § 92.331
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 6 months of tenant’s act.
Case law: Building Monitoring Sys. v. Paxton, 905 P.2d 1215 (Utah 1995)
Retaliation is prohibited when: Tenant complains to landlord or government agency.
Statute: Vt. Stat. tit. 9, § 4465
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant is involved in tenants’ organization.
Retaliation is presumed if landlord performs a negative action within 90 days of tenant’s act.
Statute: Va. Code §§ 55.1-1258, 55.1-1259
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
Statute: Wash. Rev. Code §§ 59.18.240, 59.18.250
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant exercises a legal right.
Retaliation is presumed if landlord performs a negative action within 90 days of tenant’s act.
Cases: Imperial Colliery Co. v. Fout, 373 S.E.2d 489 (1988); Murphy v. Smallridge, 468 S.E.2d 167 (W. Va. 1996)
Retaliation is prohibited when: Tenant complains to landlord or government agency or tenant exercises a legal right.
Statute: Wis. Stat. § 704.45; Wis. Adm. Code § ATCP 134.09 (5)
Retaliation is prohibited when: Tenant complains to landlord or government agency, tenant is involved in tenants’ organization, or tenant exercises a legal right.
No statute
Updated: December 22, 2023
]]>The federal Fair Housing Act and Fair Housing Amendments Act prohibits discrimination against people who:
(42 U.S.C. §§ 3601-3619, 3631.)
“Major life activities” include activities that are important for daily living. For example, the term encompasses activities such as walking, hearing, speaking, and caring for oneself.
Landlords are not allowed to question applicants about a disability or illness, or ask to see medical records. Even if it is obvious that you have a disability—for example, you use a wheelchair or wear a hearing aid—it is nevertheless illegal for the landlord to ask for more information about the disability or its severity.
The policy behind this rule is simple: No matter how well-intentioned the inquiries, a landlord can't make decisions about where and how you will live on the property that the landlord wouldn’t make if you didn’t have the disability.
For example, if there are two units for rent—one on the ground floor and one three stories up—the landlord must show both units to an applicant who uses a wheelchair, however reasonable the landlord thinks it would be for the applicant to consider only the ground-floor unit.
If you had, or have, mental or emotional impairments that constitute a disability, or if you appear to have them, you must be evaluated by the landlord on the basis of your financial stability and history as a tenant, not on the basis of your mental health. A landlord may reject you only if they can point to specific instances of past behavior that would make you dangerous to others (such as a previous landlord stating that you repeatedly threatened or assaulted other residents).
If you can't meet the good-tenant criteria that the landlord applies to all applicants (such as a minimum rent-to-income ratio), the landlord can reject you on that basis, though landlords must consider a proffered cosigner if your income is the only factor that disqualifies you.
Landlords must accommodate the needs of tenants with disabilities, within reason, at the landlord's own expense. (42 U.S.C. § 3604(f)(3)(B).) As a tenant with a disability, your landlord should reasonably adjust rules, procedures, or services in order to give you an equal opportunity to use and enjoy your dwelling unit or a common space.
Accommodations can include parking: If the landlord provides parking in the first place, providing a close-in, spacious parking space would be an accommodation for a tenant who uses a wheelchair.
Does your landlord's duty to accommodate tenants with disabilities mean that you can expect every rule and procedure to be changed at your request? No. Although landlords are expected to accommodate "reasonable" requests, they need not undertake changes that would seriously impair their ability to run their business. For example, if an applicant who uses crutches prefers the third-story apartment in a walk-up building to the one on the ground floor, the landlord doesn’t have to rip the building apart to install an elevator. That expense would be unreasonable.
Landlords must allow tenants with disabilities to make reasonable modifications to their living unit or common areas at their expense, if needed for the person to comfortably and safely live in the unit. (42 U.S.C. § 3604(f)(3)(A).) You have the right to modify your living space to the extent necessary to make the space safe and comfortable, as long as the modifications won’t make the unit unacceptable to the next tenant, or if you agree to (and are financially able to) undo the modification when you leave.
Examples of modifications a tenant with disabilities might make include:
These modifications must be reasonable and made with prior approval. A landlord is entitled to ask for a description of the proposed modifications, proof that they will be done in a workman-like manner, and evidence that you are obtaining any necessary building permits.
In addition, if you propose to modify the unit in a way that will require restoration when you leave (such as the repositioning of lowered kitchen counters), the landlord can require you to pay into an interest-bearing escrow account the amount estimated for the restoration. (The interest earned will belong to you.)
Landlords are entitled to ask for proof that the accommodation or modification you have requested will address your needs. For some disabilities, the solutions are obvious: for example, installing a ramp to accommodate a wheelchair. But other disabilities, especially mental ones, aren’t obvious, and the accommodation isn't either—for example, removing doors to accommodate a person who is fearful of closed spaces. Without some proof, your landlord has no way of knowing whether your request is legitimate or a ruse to obtain special treatment.
If you want a specific accommodation or modification and your disability isn’t obvious (or if you anticipate an argument with your landlord regarding the necessity of your proposal), have your proof ready before you make your request. Ask your physician or therapist for a letter attesting that you need what you’re asking for and that it will meet your needs. To protect your privacy, carefully explain to the physician or other writer that it isn’t necessary to explain the disability; it’s only necessary to certify that the changes you would like are appropriate to your situation.
For all the legal and practical information you need to protect your rights as a renter, no matter what state you live in, get Every Tenant's Legal Guide (Nolo). Also check out Nolo’s legal resources for tenants and information about legal aid and pro bono representation (and how to find it).
]]>I recently applied for a apartment and was rejected. The reason they gave me was stated in one word: criminal. I have a felony conviction almost 10 years old. Is this a form of discrimination?
Yes, it is a form of discrimination. But unfortunately, in all likelihood you have no legal protection against discrimination based on your criminal record.
Only certain kinds of discrimination, such as that based on race, religion, national origin, family status, sex, and disability are recognized as illegal. Many states and some localities have added others—such as source of income and military status—but convicted felons aren't on any state's list. (Under federal law, however, it is illegal for a landlord to discriminate against a tenant because of a felony conviction for drug use—but a landlord can discriminate against someone with a felony record for drug sale or manufacture.) Although it's often unfair to deny housing to someone based on an old old conviction, but there is no law against it.
In the future, anticipate that this information will come to the attention of prospective landlords—and employers, too. Deal with it before the landlord or employer sees it on your credit report or comes across it during some other check. Bring up the fact of the conviction yourself, during the application process, and do your best to convince the landlord that you have moved well beyond those days and will be a thoroughly law-abiding and stable tenant. If the conviction is old and your record is spotless since you got it, it will be harder for the landlord to reject you.
The Fair Housing Acts prohibit landlords from taking any of the following actions based on race, religion, or any other protected category:
Landlords can always select tenants using criteria that are based on valid business reasons, such as requiring a minimum income or positive references from previous landlords, as long as these standards are applied equally to all tenants.
A tenant who thinks that a landlord has broken a federal fair housing law should contact a local office of the U.S. Department of Housing and Urban Development (HUD), the agency that enforces the Fair Housing Act, or check the HUD website at www.hud.gov. You'll find detailed information on filing a fair housing complaint.
HUD will provide a complaint form (tenants can fill the form out online) and will investigate and decide whether there is reasonable cause to believe that the fair housing law has been broken. If the answer is yes, HUD will typically appoint a mediator to negotiate with the landlord and reach a settlement (called a "conciliation"). If a settlement is later broken, HUD will recommend that the Attorney General file a lawsuit.
If the discrimination is a violation of a state fair housing law, the tenant may file a complaint with the state agency in charge of enforcing the law. In California, for example, the Department of Fair Employment and Housing enforces the state's two fair housing laws.
Also, instead of filing a complaint with HUD or a state agency, tenants may file lawsuits directly in federal or state court. If a state or federal court or housing agency finds that discrimination has taken place, a tenant may be awarded damages, including any higher rent paid as a result of being turned down, an order directing the landlord to offer the rental to the tenant, and compensation for humiliation or emotional distress.
Federal, state, and local fair housing laws may protect tenants from housing discrimination.
The federal Fair Housing Act and Fair Housing Amendments Act (42 U.S. Code § § 3601-3619, 3631) prohibit landlords from choosing tenants on the basis of a group characteristic such as:
Discriminating against potential or current tenants for any of these reasons is illegal under federal law.
In addition, some state and local laws prohibit additional types of discrimination (that are not covered under federal law), such as discrimination based on a person's marital status, age, or source of income. For more information, contact your state fair housing agency.
Rental applicants and tenants with criminal records have not, in the past, received much protection against housing discrimination. As the HUD memo noted, while federal fair housing laws protect people from discrimination on the basis of race, color, religion, sex, familial status, national origin, and disability, they do not extend protected class status to those with a criminal record.
This has meant that under federal law, landlords were free to adopt screening policies that targeted people with criminal histories (for example, categorically rejecting rental applicants who had an arrest or a conviction). (Notably, some local laws are more restrictive; for example, San Francisco passed a “Ban the Box” ordinance in 2014 that, among other things, forbids a question about arrests on a housing application for housing subsidized by the city.) The only exception to this practice concerned past drug users; landlords could not reject a person who formerly had a drug addiction for a past drug use conviction, on the theory that drug use is a disability (which is a protected class). People with convictions for drug sale or manufacture, however, did not enjoy protected status.
Fair housing advocates have for a long time sought to invalidate landlord policies that automatically reject applicants with conviction or even arrest records. But given the lack of “protected class” status, how to do it?
The opening came in a U.S. Supreme Court case in 2015, which held that housing discrimination could be shown not only in cases where the landlord clearly intended to treat one group unjustly or prejudicially, but also by showing that the landlord’s policy (although neutral on its face) had the effect of harming people in a protected class. (Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).)
An example of intentional discrimination by a landlord would be a stated policy of “I do not rent to Hispanics.” Indirect discrimination, also known as “disparate impact” discrimination, might be, “I do not rent to people who live in [an area of town densely populated by Hispanics].” In the first instance, the rejected applicant could prove discrimination simply by introducing evidence of the landlord’s stated policy. In the second example, the applicant would have to prove that, because an overwhelming number of Hispanics lived in that area of town, the effect (or impact) of the policy was to discriminate against them.
The HUD memo seized on this new, indirect way of showing discrimination, by reciting statistics showing that many, many more Blacks and Hispanics are arrested and convicted than are whites. So, when a landlord applies a “no arrest or conviction” rule when screening tenants, members of these protected classes are being harmed more frequently than, say, whites. In other words, such a policy, while neutral on its face, in fact disadvantages—discriminates against—protected individuals.
The HUD memo did not go so far as to advise landlords against turning away applicants with relevant convictions (more on that below). It did, however, disapprove the practice of rejecting based only on an arrest-without-conviction basis: This is never appropriate, said the memo, because an arrest “shows nothing more than that somebody probably suspected the person apprehended of an offense.” (Memo, page 5.) In other words, the arrest isn't relevant to the only justifiable reason a landlord might have for such a policy: The desire to keep other residents, guests, repairpersons, and employees safe by rejecting known troublemakers.
As to convictions, however, landlords have more leeway—and quite a challenge ahead of them. Some convictions might indeed be relevant to the landlord’s duty to keep residents and others safe. For example, a recent conviction for assaulting a neighbor might justifiably cause a prospective landlord to hesitate, as might a conviction for perpetrating domestic violence at the applicant’s last rental. (Note, however, that many states prohibit landlords from denying housing to victims of domestic violence, when that is the only reason for the denial.)
On the other hand, a decades-old conviction, especially for a non-violent crime, probably has little to do with the chances that the applicant will be a problem tenant now.
The HUD memo suggested that landlords consider several factors, such as the nature and age of any conviction, before using it as a basis to deny housing. For example, how old is the conviction, what was it for, what were the circumstances, has the applicant been rehabilitated and crime-free since then, and so on?
As you can see, this inquiry involves the landlord in a case-by-case analysis—one that many landlords may be loath to undertake, because there are no “bright lines” to help them. On the contrary, landlords will have to make judgment calls as to, for instance, how old is old enough—and hope that, if challenged, they stand up in court.
]]>The Acts apply to all aspects of the landlord-tenant relationship. A landlord may not:
Federal antidiscrimination laws are administered by the Department of Housing and Urban Development (HUD). You can find out the details about how to file a fair housing complaint on its website.
Overt discrimination against persons of a certain race or religion (“No Black people allowed”) is unusual but, incredibly, does still occur. Far more common is subtle discrimination that is accomplished by indirect methods. For example, the landlord who turns away every Black applicant is discriminating just as much as the one who announces that none need apply. And an apartment ad that says “safe Christian community” violates federal law, since applicants might reasonably conclude that Christians are preferred as tenants.
Discrimination based on national origin is illegal, whether it’s deliberate or carried out indirectly. For instance, an ad that offers special discounts to members of the Italian-American Club would be a likely candidate for a discrimination charge. And landlords cannot require proof of citizenship or immigration papers from applicants of one ethnicity but not from others, since doing so places a burden on one group that is not imposed on everyone else. And in California, Colorado, and New York City, it's illegal to ask any applicant or tenant about immigration or citizenship status.
Landlords are not allowed to explicitly or indirectly turn you away based on your family status or your age.
While some landlords don’t like renting to tenants with children, fearing the noise and wear and tear that kids might cause, the Acts prohibit discriminating on this basis. A landlord may not legally turn away or evict a tenant because they have children or because an applicant or tenant is pregnant. Even if the landlord has a worthy motive, such as believing that children won’t be safe in the building or the neighborhood, it is illegal to deny the tenancy on that basis or to make other discriminatory moves such as steering families to certain parts of the property (usually the back).
Some landlords try to get around the laws prohibiting discrimination against families by setting unreasonably low occupancy limits, such as only two people for a two-bedroom unit. This practice is illegal, as it has the effect of excluding families. Federal law (in this case, a memorandum written by the Department of Housing and Urban Development) has established minimum occupancy standards that regulate how low an occupancy can go and still be legal. In general, landlords must allow at least two persons per bedroom. Landlords can be more restrictive only in rare instances, when they can show that legitimate business reasons justify a more restrictive standard. For example, a policy of only three persons in a two-bedroom unit might pass muster if the landlord can prove it is truly based on the limitations of the plumbing system or some other aspect of the building’s infrastructure.
The Acts do not expressly ban discrimination based on age. Nevertheless, it is definitely forbidden under the broader prohibition against discrimination on the basis of familial status.
A landlord cannot refuse to rent to an older person or impose special terms and conditions on the tenancy unless these same standards are applied to everyone else. If you have excellent references and credit history, a landlord has no legal basis for refusing you, even if you are 85 and rely to some degree on the regular assistance of a nearby adult child or friend. (Of course, a landlord could legally give the rental to someone else with equal or better references or financial stability.) However, if your current landlord reveals that you suffer from advanced senility to the point that you often wander into the wrong apartment, frequently forget to pay the rent, or are unable to undertake basic housekeeping chores, the prospective landlord can refuse to rent to you based on this age-neutral evidence that you are not likely to be a stable, reliable tenant.
Federal law prohibits discrimination against people who:
If you had, have, or appear to have mental or emotional impairments, a landlord cannot use this as a reason to deny you a rental or otherwise discriminate against you. If you cannot meet the good-tenant criteria that the landlord applies to all applicants (such as good references from previous landlords and no prior evictions), you may be rejected on that basis—but not on the basis of your mental health status.
Landlords are not allowed to ask you whether you have a disability or illness, or ask to see medical records. And no matter how well intentioned, the landlord cannot make decisions about where and how you will live on the property that they wouldn’t make if you didn’t have a disability. For example, if there are two units for rent—one on the ground floor and one three stories up—the landlord must show both units to an applicant who uses a wheelchair unless the applicant asks to see only one.
Federal law protects tenants with disabilities after they have moved into a rental unit as well as during the application process. Landlords must reasonably accommodate the needs of tenants with disabilities, at the landlord’s own expense. This means that a tenant with a disability can expect the landlord to adjust rules, procedures, or services to a reasonable degree in order to provide the tenant with an equal opportunity to use and enjoy the dwelling unit or a common space. Examples include providing a parking space for a tenant who has mobility issues and accepting a guide or service animal in an otherwise “no pets” building.
However, landlords need not undertake changes that would seriously impair their ability to run their business, such as installing an elevator to the third floor to allow a tenant with mobility issues to live there.
Fortunately, where a landlord’s legal duty to reasonably accommodate the needs of a tenant with a disability ends, the obligation to allow the tenant to modify the living space may begin. Tenants with disabilities have the right to modify their living space, at their own expense, to the extent necessary to make the space safe and comfortable. There are two caveats to this rule:
Examples of modifications undertaken by tenants with disabilities include the lowering of countertops, installation of a ramp, or repositioning the light switches.
Landlords are entitled to ask for proof that the accommodation or modification the tenant has requested will actually address the tenant’s situation—without it, the landlord has no way of knowing whether the request is legitimate or a ruse to obtain special treatment.
Tenants with disabilities can ask their physician, therapist, counselor, or any other third-party professional who knows them and understands their situation for a letter attesting that what the tenant is asking for will meet your needs. To protect the tenant’s privacy, the tenant can explain to the physician or other writer that there’s no need to explain the disability. The writer need only certify that the tenant is under their care and that the proposed changes are appropriate for the situation.
Federal fair housing law extends limited protection to two carefully defined groups:
It is important to remember that, despite these protections, the past of a person recovering from alcohol or drug addiction might legally serve as the basis for a denial of housing. For example, if you are recovering from alcohol addiction and have bad credit, a spotty employment history, or negative references from your previous landlords, a landlord may reject you for these reasons just as readily as any other applicant with these flaws. What a landlord cannot do is reject a prospective tenant solely on the basis of their status as someone recovering from a drug or alcohol addiction.
You cannot be denied a place to live (or have special rules imposed on you) solely because you’re female or male. Even well-intentioned policies are off-limits—for example, fearful that single women are more likely to be burglarized and assaulted than male tenants, a landlord cannot require single females to live in upper-story apartments, even if, in fact, those units are less prone to break-ins.
Aside from gender discrimination, the Acts also protect against discrimination on the basis of gender identity and sexual orientation.
Sexual harassment is another form of unlawful sex-based discrimination. For example, it’s illegal to refuse to rent to a person who resists the landlord’s sexual advances or to make life difficult for a tenant who has resisted such advances.
Unfortunately, not every rental is covered by the federal fair housing laws. The following types of property are exempt:
Fortunately for some tenants, however, many state fair housing laws cover properties or situations that are exempt under federal law. For example, owner-occupied buildings with four or fewer rental units are exempt under federal law but are protected under California law. Check with your state fair housing agency for details.
]]>Federal, state, and local housing laws all prohibit various kinds of discrimination against tenants. The most common kinds of discrimination—race and disability—are prohibited by the federal Fair Housing Acts. (42 U.S. Code §§ 3601-3619 and 3631.) Most state laws also make the same forms of discrimination illegal, and in some cases go even further—for example, by prohibiting housing discrimination based on source of income. Local anti-discrimination laws may also come into play.
Tenants (current and prospective) have several ways to fight unlawful discrimination—including negotiating a settlement with a landlord (perhaps with a mediator’s help) and filing a complaint with a government fair housing agency that may result in a conciliation agreement between landlord and tenant.
The more serious harm you suffered, the more likely you are to win your lawsuit. Landlords who practice intentional discrimination, such as making flat-out statements that they don’t rent to people of a certain race or religion, are far more vulnerable to a fair housing charge than someone who unintentionally discriminates by letting only two people rent a two-bedroom apartment because they don’t understand fair housing laws on occupancy limits.
If you want a landlord to rent you a particular apartment, you may find that filing a complaint with a fair housing agency is the best way to go; one result may be a conciliation agreement in which you agree to drop your complaint in exchange for the landlord’s written agreement to rent you the apartment. On the other hand, if you’re seeking damages for emotional distress caused by a landlord’s discrimination, or punitive damages for especially blatant and intentional discrimination, a lawsuit may well be your best bet.
You may file a lawsuit in either federal or state court. If you have a strong case and can get a quick court order from a judge, your experience will be mercifully short. Or if your facts are compelling and your lawyer good, you might be able to settle for a sizable amount of money without going to trial. But not every case proceeds so easily. Landlords (and their insurance companies) may dig in their heels, resulting in months, or even years, before a case is settled or decided by a judge or jury.
HUD’s State Information section is a great place to begin. Click on your state, then on “Get Rental Help,” for a list of local organizations that provide a variety of housing services. Your state, county, or city government might also have housing discrimination resources on its website.
You’ll likely need the help of a lawyer experienced handling discrimination cases if you plan to go directly to court to force the landlord to rent you the premises and pay you money damages. A lawyer can also help if you file a complaint with a fair housing agency. You may file a lawsuit in federal or state court even if you have filed a complaint with a fair housing agency (deciding whether to do both, and timing everything, is one of the reasons you’ll need to hire a good lawyer). And a lawyer will be invaluable in negotiating a settlement agreement with a landlord, whether or not you end up filing a lawsuit.
Legal aid attorneys, hired by government-financed law clinics, may be available if you have very low income. But, for many people, hiring a private attorney will be your only option. If you have a strong case, an attorney might take it “on contingency” (you pay nothing up front but agree to give the attorney a percentage, such as 30%, of whatever you win or agree to in a settlement). Before getting started, learn what you can about hiring and working with an attorney, including how to find free or low-cost legal help and the different ways lawyers charge for their services.
]]>How you can respond to these forms of housing discrimination depends on:
Historically, federal law did not protect gays, lesbians, or transgender people from discrimination by landlords and other housing providers. In January 2021, however, President Biden issued the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (the “Order”). The Order stated that going forward, the federal Fair Housing Act (42 U.S.C. 1681 and following) prohibited discrimination on the basis of gender identity and sexual orientation. In response to the Order, the U.S. Department of Housing and Urban Development (HUD) released a memo stating that HUD would begin accepting and investigating complaints of discrimination based on gender identity or sexual orientation.
If you believe that you have been subjected to illegal housing discrimination on the basis of gender identity or sexual orientation, you can file a federal fair housing complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO).
Many state and local laws address one or more of the following forms of discrimination.
Each law has its own definition of these protected classes—check the law carefully to see exactly what is covered.
Several states and cities prohibit sexual orientation housing discrimination. Many of these same states and cities also prohibit gender identity and gender expression housing discrimination. Some laws differentiate between gender identity and gender expression discrimination; others lump the two forms of discrimination together. You’ll want to check your state and local laws to find out whether they prohibit one, two, or all three of these forms of discrimination.
State and local laws change frequently. To find out how to pursue fair housing complaints based on sexual orientation, gender identity, and gender expression discrimination in your state, check with your state’s fair housing office. You can find a list of state agencies on FHEO’s website. For city and local information, check out the Human Rights Campaign’s Municipality Database—you can search for your city or zip code to find out the current status of protections against housing discrimination. Finally, you can also contact the National Gay and Lesbian Task Force for more information.
The timing of the discriminatory behavior directly affects what remedies you might have. As discussed below, you have limited options if the discrimination occurs at the application stage. However, if you experience discrimination after you’ve signed a lease or rental agreement, you have a number of options for fighting back.
If you are denied a rental at the application stage, in many cases there's not much you can do about it. Most of the time, the landlord either doesn’t tell you why you were rejected or invents a reasonable-sounding, nondiscriminatory explanation to conceal the true (discriminatory) reason. If the landlord’s refusal was clearly based on gender identity or sexual orientation, you could pursue a claim under federal, state, or local law.
If you have a lease, your tenancy cannot be terminated until the lease expires unless you have broken an important lease clause (such as failing to pay rent or violating a no-pets rule), or you have committed an illegal act.
So, a landlord who attempts to evict you solely on the grounds of your sexual orientation would have a hard time prevailing in a federal fair housing complaint. You can also file a fair housing complaint with your state fair housing office.
Renters with month-to-month rental agreements might be in greater danger of eviction. Landlords can terminate month-to-month tenancies by giving the required notice, which is 30 days in most states. The landlord need not give a reason for the termination.
However, landlords are not allowed to terminate rental agreements for a discriminatory reason, so if you suspect sexual orientation discrimination, you can pursue a federal fair housing complaint or contact your state fair housing office.
Tenants in areas with rent control might have another avenue for complaints—most rent control laws also have eviction protection rules prohibiting termination of month to month tenants unless they have violated the rental agreement, have seriously broken the law (by selling drugs, for example), or the termination is based on enumerated "just causes" in the rent control or eviction protection law.
Nolo's LGBTQ Law section also contains a wealth of articles addressing laws and rules that might affect members of the LGBTQ community.
]]>But what if it's too late for that or you're blindsided by the landlord's behavior, and you don't want to move? What are your options if your request for repairs has been met with the sudden loss of your parking spot? Your efforts to organize other tenants into complaining about lack of security in the building have earned you a termination notice? Your complaint to the health department about mold in your apartment has led to a rent increase? Here's what you can do if you suspect retaliation.
In almost all states, it is illegal for a landlord to retaliate against tenants for acting within their legal rights--for example, if you have:
It’s important to understand that the anti-retaliation laws will shield you only for those activities that are mentioned in your state’s statute. Not all states protect tenants for all three types of actions mentioned above. To see what's covered, see your state laws prohibiting landlord retaliation. For example, in California, a tenant who circulates a petition demanding beefed-up security cannot be retaliated against; but that same activity would not be protected in Arizona, since “exercise of a legal right” isn’t included in Arizona's statute.
Once you know your legal rights, you need to know what your landlord cannot do in response to your exercising a legal right. The kinds of retaliatory acts covered by state statutes include:
Of course, few landlords are dumb enough to announce a retaliatory plan. Chances are that they will cloak their real motives in a cover-up, such as the sudden need to rent to a long-lost aunt or their financial inability to keep up with the just-decreased service. It’s up to you to prove that it's retaliation.
If you’re the object of your landlord’s nasty retaliatory actions, two responses are possible, depending on what the landlord has done:
Sometimes you’ll have a choice. For example, if the retaliation consists of a rent increase, you could refuse to pay and force the landlord to terminate and evict, banking on your antiretaliation statute as your defense. Or, you could immediately file suit in small claims court as soon as you get notice of the increase, hoping to resolve the issue before the increase kicks in. We strongly advise choosing the latter course whenever possible—if you lose, you can leave on your own terms, when and if you want to, without an eviction lawsuit going onto your credit report. On the other hand, if you force an eviction lawsuit your credit report will include this fact. Even if you win, this is not good news for any prospective landlord or employer.
By far the most common kind of retaliation, however, is of the petty sort. Before filing papers in small claims court, ask yourself if the issue is really worth your time and money to fight. And, unfortunately, many intensely annoying ploys are just not that big a deal to a judge, either.
If you think a rent hike or other negative treatment is motivated by your assertion of a tenant’s legal right, you may decide to fight back. But before you do, ask yourself the following questions:
Check your state statutes to make sure that you have anti-retaliation protection for what you’ve done. Not everything is protected (plus several states do not have an antiretaliation statute).
If you withhold rent with no valid reason, circulate a negative petition about your landlord that is patently inaccurate, or file endless, groundless complaints with government agencies, no judge will prevent a landlord from taking appropriate action (such as not renewing your lease or terminating your rental agreement),
Obviously, the shorter the interval between your exercise of a legal right and the date of a increase in rent or negative treatment, the more suspicious it becomes.
Judges are more likely to view a large rent increase (rather than a small one) as the landlord’s way to punish or drive away a troublesome tenant. Ditto with reductions in services.
Your chances of proving a retaliatory motive will be greatly increased if you can show that you alone, but not tenants in similar units, received the negative treatment.
Your landlord’s reputation is certainly a relevant factor if you contemplate challenging a rent increase. You can learn whether the landlord is a frequent visitor to landlord-tenant or small claims court by asking the local tenants’ organization or even your fellow tenants. The judge may tell you that this information is irrelevant and won’t be considered—but you may want to share it anyway, then listen politely while the judge gives you a little lecture on the rules of evidence.
It’s easier to win the cases in which you can convince a judge that the landlord has a strong motive to get even. Did you cause the landlord considerable time, expense, aggravation, or embarrassment? For example, if you complained to the local health department that your housing is uninhabitable because the roof leaked, and the department ordered your landlord to put on a new roof, that’s an expensive job that your landlord might resent highly. This anger could well prompt a retaliatory rent hike, you’ll claim. Similarly, an accusation of discrimination against your landlord, even if he ultimately defeats it, could easily generate strong feelings of bitterness and retaliation. On the other hand, your isolated request for a necessary and inexpensive repair is far less likely in the eyes of a judge to motivate serious landlord revenge.
Keep in mind that you don't need to be perfect. An honest mistake made during an otherwise valid attempt to exercise your rights usually won’t deprive you of the protection of your state’s anti-retaliation statute. For example, suppose that in response to a broken heater in the winter you withhold rent without complying strictly with your state’s notice requirement. Your angry landlord is likely to call you on your error and demand the rent. If you pay it, can he then terminate your tenancy? Assuming that the heater was truly broken and your mistake relatively minor, you’ll be in a good position to argue that you still deserve the benefit of your state law. Of course, you’d be far better off to follow the withholding rules carefully in the first place.
If you’re determined to fight back by filing suit or hunkering down and defending against an eviction, there’s one more issue you need to think about. How do you prove your landlord is trying to retaliate against you? In the real world, landlords are rarely so foolish as to say directly, “If you complain to the housing department, I’ll evict you!” Instead, they’re likely to stick it to you for a trumped-up reason, hoping to mask the fact that the real motive is to get rid of a tenant whom they regard as a troublemaker. Common examples of cover-ups that are really retaliations are:
Fortunately, however, many states give tenants an edge when it comes to unmasking illegal reasons to end a tenancy. In many states, the landlord is presumed to be retaliating against you if a tenancy is ended (or services decreased) within a certain amount of time after your exercise of a legal right, typically six months but sometimes 90 days or one year. This means that it will be up to the landlord to prove to the judge, should you end up in court, that his motives were not retaliatory.
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