Think Twice Before Turning Away Tenants With Section 8 Vouchers

Do you write "No Section 8" in your apartment ads, or you do you tell inquiring prospects that you don't "take Section 8"?

Before you follow a policy of turning away prospects with Section 8 vouchers, you should first take a moment to find out whether what you're doing is legal.

What It Means to ‘Take Section 8'

When prospective tenants ask if you take Section 8, they want to know if you would accept part of their rent through the Housing Choice Voucher Program (still commonly known as the tenant-based Section 8 program). But just because a prospect asks such a question doesn't mean the answer is up to you. Before you respond, you should be sure of whether your state or local fair housing law bars you from turning away prospects for this reason.

Find Out if You Must Follow Section 8 Discrimination Ban

The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631), a federal law, doesn't bar landlords from discriminating based on Section 8. But some states and municipalities do, often as part of a broader ban on "source of income" or "public assistance status" under the state or local fair housing law. For example, Chicago's municipal code includes a housing discrimination ban based on source of income that includes applicants who have Section 8 vouchers.

Search online (start by checking the "State Information" section of the HUD website) and contact your local fair housing agency to see if the law protects prospects and tenants based on the fact they have Section 8 vouchers. (If you own multiple properties in different states, counties, or towns, be sure to check the law for each location.) If you learn that state and local laws don't ban this type of discrimination, then it's up to you to decide whether to accept applicants with Section 8 vouchers.

Tips to Avoid Fair Housing Liability

As a landlord, you could face liability whether or not you must comply with a discrimination ban. So, after you learn whether your state or local fair housing law bars discrimination against applicants with Section 8 vouchers, follow some tips to avoid accusations.

If you're required to take Section 8, keep these pointers in mind:

• Don't feel you must take every applicant who has Section 8 vouchers. When the law protects people who have Section 8 vouchers, it means that you can't turn away applicants simply because they have Section 8 vouchers. It doesn't mean that you can't reject them for the same valid reasons you would reject other applicants, such as a negative prior landlord history or a problematic criminal background check. In fact, if you don't treat Section 8 applicants the same as other applicants, you risk fair housing violations based on other reasons.
• Don't make screening harder for Section 8 applicants. When you apply more stringent screening requirements to applicants with Section 8 vouchers, you're making it more difficult for such applicants to find housing, which would violate a state or local discrimination ban.
• Don't steer Section 8 applicants. Deciding to accept Section 8 applicants but only rent apartments to them in certain floors or areas of your building is still illegal because it involves "steering," which limits applicants' housing choices. Following such a policy also means you would have to start turning away applicants once there were no longer any vacancies in the designated area of your building, even if you had vacancies elsewhere.

If you discover that you're not required to take Section 8 and can follow your own policy, these tips can help you avoid fair housing trouble:

• Don't discriminate based on other protected classes. In the absence of a ban, you simply need to decide whether you will accept applicants who have Section 8 vouchers. Landlords who go a step further and tie their Section 8 policy to a protected class risk discrimination complaints. For example, choosing to accept Section 8 applicants as long as they're white would violate the FHA's ban on racial discrimination.
• Be consistent with your Section 8 policy. Make sure you and your staff give the same answer each time a prospect calls or emails you inquiring if you take Section 8. If you're not consistent, you might invite claims that you're discriminating based on other protected classes.

Learn More About Housing Discrimination

The Rental Applications section of Nolo.com includes several useful articles on how to stay on the right side of fair housing laws when choosing tenants. Also, check out Every Landlord's Legal Guide, by Marcia Stewart, Janet Portman, and Ann O'Connell (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.