What Questions Can You Not Ask a Potential Tenant? 11 Off-Limit Inquiries

Tenant screening helps landlords make informed decisions about prospective renters and minimizes tenant turnover. However, understanding which rental application questions are illegal is crucial to avoid severe legal repercussions.

In this article, we'll explore the question, "What can a landlord not ask?" and provide examples of prohibited rental application questions to ensure fair housing compliance. We'll equip you with the knowledge needed to navigate tenant screening confidently, focusing on relevant applicant qualifications while adhering to the law.

Let's take a closer look into the key insights that every responsible landlord must know to safeguard their business, foster a fair and equitable rental application process, and find great tenants. Hopefully, by the end of this article, you'll feel ready to make well-informed decisions for your rental property while confidently complying with fair housing regulations.

The significance of the Fair Housing Act

The Fair Housing Act is a federal law in the United States that prohibits discrimination in housing based on race, color, religion, sex, familial status, or national origin. This law ensures everyone has equal access to rent, buy, or secure financing for housing opportunities without bias.

The Act protects individuals under nine key categories: race, color, national origin, religion, sex, family status (including children under 18 living with parents or legal custodians, pregnant women, and those securing custody of children under 18), disability, sexual orientation, and gender identity.

These categories, commonly known as protected classes, safeguard against discrimination in housing-related activities. It's illegal to discriminate against individuals based on these grounds.

Legal considerations

According to the 2023 National Fair Housing Alliance's annual report, rental transactions account for approximately 83% of housing complaints, highlighting landlords' significant vulnerability and the need for awareness of these laws.

Violating the Fair Housing Act can result in penalties that are anything but trivial. The United States Department of Housing and Urban Development (HUD) can impose civil penalties of up to $25,597 for a first violation.

However, if a respondent landlord has previously violated the Fair Housing Act within the previous five years, the fine could reach a maximum of $63,991. A landlord can receive up to a $127,983 penalty for a third violation within seven years.

Here’s a glance at the most recent housing discrimination statistics, as reported by the Fair Housing Assistance Program (FHAP), which partners with HUD on housing laws:

Source: 2023 Fair Housing Trends Report.

What is an illegal rental application question?

An illegal question is any inquiry that infringes upon a person's legal rights or delves into protected characteristics defined by federal or state anti-discrimination laws.

In certain jurisdictions, landlords cannot ask questions about age, race, religion, sex, national origin, disability, marital status, familial status, sexual orientation, or receipt of public assistance.

Off-limit questions:

1. "Which local churches, synagogues, or mosques do you visit?"
2. "Are you married?" or "Do you plan to have more kids?"
3. "In what country were you/your parents born?"
4. "Are you pregnant?"
5. "Do you have a boyfriend, girlfriend, or partner?"
6. "Have you ever been arrested?"
7. "How old are you?"
8. "Have you ever been treated for a certain medical condition?"
9. "Are there certain tasks or activities you might need help with?"
10. "Do you have a service animal?"
11. "How do you manage to pay your bills?"

What can landlords not ask on a rental application?

Landlords cannot ask discriminatory questions on a rental application or interview, which include questions based on race, color, nationality, religion, familial status, disability, sex, sexual orientation, or gender identity.

Furthermore, some jurisdictions, such as New York City, prohibit landlords from asking questions about a potential tenant’s age or perceived age. Additionally, you cannot inquire about an applicant's intention to have children or ask questions related to past arrests that did not result in convictions.

Referring to these topic areas could expose you to civil penalties and potential discrimination lawsuits.

Race, color, and national origin

The federal Fair Housing Act prohibits landlords from including questions about race, color, and national origin on their rental application, since they may result in discrimination against the prospective renter.  

Religion

Asking prospective tenants or homebuyers about their religious beliefs or affiliations with certain religions is illegal. To make sure you comply with the law, here are some strategies for your application process:

• Focus on relevant information: Focus the application and conversation on relevant information such as rental history, credit score, employment, and income.
• Equal treatment: Treat all prospective tenants or buyers equally, regardless of their religion or lack thereof.
• Avoid assumptions: Do not make assumptions based on a person's name, appearance, or personal items, which might suggest their religious beliefs.
• Respect religious holidays: If you know that a tenant celebrates certain religious holidays, respect them by not scheduling viewings, maintenance, or other activities during those times.

Gender and gender identity

The 2023 Fair Housing Trends Report reveals that 2,490 complaints based on gender/sex were filed in 2022, the highest number of these types of discrimination complaints since 2005.

To avoid unnecessary legal trouble, refrain from asking prospective tenants or homebuyers about their sexual orientation, gender, or gender identity. Additionally, avoid making assumptions about a person's gender based on their name or appearance, and use the name and pronouns that the individual tells you they prefer.

Use gender-neutral language in all documents, such as rental agreements or applications. Opt for terms like "tenant" or "applicant" instead of gendered pronouns.

Familial status

Familial status discrimination refers to unfair treatment or bias against individuals based on their family structure, particularly in housing situations. Discrimination may involve targeting families with children under 18, pregnant women, or individuals securing legal custody of a child.

Under the law, asking prospective tenants or homebuyers questions about their familial or family status, such as "Do you have children?" or "Are you pregnant?" is prohibited.

Sexual orientation

Inquiring about the sexual orientation of a potential tenant is strictly prohibited by law, as it violates individuals' rights to privacy and non-discrimination based on their personal preferences or identities.

Disability

The 2023 Fair Housing Trends Report reveals that 53.26 percent of the complaints filed are attributed to discrimination based on disability.

To be sure you aren't asking illegal questions that could put you in a bad situation, don't ask prospective or current tenants questions about their disability status. Questions like "Do you have a disability?" or "What is your disability?" are discriminatory and violate individual rights.

As part of the tenant screening process, individuals with disabilities can request reasonable accommodations. The examples mentioned below aim to level the playing field and ensure that everyone, regardless of disability, has an equal opportunity to apply for housing:

• Provide online application forms compatible with assistive technology, providing everyone equal access.
• Ensure there are clear instructions regarding background checks, credit checks, and required references to prevent confusion.
• Provide reasonable accommodations for applicants with disabilities. For example, you may offer sign language interpreters for deaf applicants or allow service animals in "no pets" buildings.
• Properties should be accessible to people with disabilities, including ramps for wheelchair users or virtual tours.

Arrests and convictions

You can ask potential tenants about their criminal convictions during screening, but typically, you cannot ask if they've been arrested.

You cannot deny rental to prospective tenants solely based on their arrests without convictions. Additionally, implementing a general policy that rejects all tenant applicants with any criminal record or history is not permissible.

Public assistance status

Gaining insight into a potential tenant's income or means of supporting rental payments helps you to evaluate their financial capability. To verify a tenant's ability to pay rent, you can typically only request proof of monthly income, such as pay stubs, tax returns, bank statements, credit reports, or a letter of employment.

However, it's illegal to discriminate against tenants receiving government services such as food stamps or housing vouchers.

In many jurisdictions, denying a rental application based solely on the source of income is illegal if it includes public assistance. Always check local and state laws to ensure compliance.

What can a landlord ask for on a rental application?

If you're wondering, "What questions can I ask?" fear not! These subject areas are safe to ask about during a tenant screening.

• Potential renter's name and other intended occupants.
• Is the applicant over 18? This ensures they can legally sign a contract.
• Rental history, including past addresses, reasons for leaving previous rentals, and references from previous landlords, can be requested.
• You can ask about the applicant's current job, length of employment, and salary and request pay stubs or tax returns as proof of income.
• As a property owner, you can request permission to run a credit report to assess the applicant's financial stability.
• You can inquire about the prospective tenant's pets to comply with building regulations and address potential allergies.
• To comply with health and safety standards, you can ask how many people will live in the rental unit.

Strategies for ensuring legal compliance

Here are some recommended policies and procedures to prevent the accidental violation of anti-discrimination laws and the asking of discriminatory questions.

1. Make it clear in your policy that you do not discriminate against protected classes defined by the Fair Housing Act (race, color, religion, sex, familial status, national origin, and disability).
2. Create a standardized application process and use it for every interested renter. In the interview, ask each applicant the same questions and evaluate them using consistent criteria.
3. Ensure communication is consistent for all rental applicants. Avoid assumptions or stereotypes.
4. Establish clear, objective criteria for tenant selection. You may include background checks, credit score requirements, references, and income verification.
5. Train yourself and your staff on fair housing laws and how to avoid discrimination.
6. Maintain detailed records of all interactions with applicants as evidence of non-discriminatory practices.
7. Be mindful of inclusive language in property advertisements, avoiding favoritism towards any particular group.

Avoid tenant application pitfalls with Azibo

By carefully reviewing and evaluating your rental applications, you can increase your chances of finding a reliable, long-term tenant for your property. However, your tenant selection criteria should be consistent and universally applicable to prevent you from running afoul of the Fair Housing Act and other similar state and local anti-discrimination laws. Any exceptions or preferences should be based on legitimate business reasons, such as the applicant’s ability to pay rent or a history of responsible tenancy.

With Azibo’s online rental applications, you'll know you're using legally compliant applications while streamlining your business processes. Find your next tenant with Azibo’s free online rental application.

Sign up for Azibo for free today.

Understanding illegal rental application questions

Adhering to fair housing laws and avoiding illegal rental application questions is of utmost importance for landlords. As discussed in this article, asking discriminatory questions based on protected characteristics can lead to severe legal consequences and damage your rental business.

To ensure a fair and equitable screening process, focus on relevant information such as rental history, employment, income, and references when evaluating potential tenants. Always keep in mind the significance of the Fair Housing Act, which guarantees equal housing opportunities for everyone, regardless of their background or identity.

To stay compliant, refrain from asking questions related to protected classes like race, nationality, religion, age, disability, sexual orientation, or familial status during the tenant screening process. Instead, gather information that is directly relevant to the applicant's qualifications and ability to fulfill rental obligations.

By following fair housing guidelines, implementing clear policies, and providing proper staff training, you can foster a rental environment that treats all applicants with respect and ensures a positive experience for everyone involved.

As a responsible landlord, your commitment to fair housing compliance will not only safeguard your business from legal troubles but also contribute to creating an inclusive and diverse rental community where everyone can find a safe and welcoming place to call home.

Questions landlords cannot ask FAQs

What questions can a landlord ask about references?

A landlord can ask for references from previous landlords, property owners, and managers to inquire about the prospective tenant's behavior, payment history, and overall tenancy experience. They can also ask for personal references to understand the applicant's character and reliability.

What information can landlords ask for in California?

In California, property owners can request personal details, employment history, rental history, and permission to conduct a credit check on a rental application.

Landlords are also legally allowed to inquire about prior convictions but not arrests. However, they cannot discriminate based on income source, including public assistance such as food stamps, or ask about specific age beyond confirming the applicant is over 18. Learn more in our overview of key California landlord-tenant laws.

What questions can you not ask a prospective tenant?

According to the Fair Housing Act, landlords cannot ask prospective tenants questions that discriminate based on race, color, national origin, religion, sex, age, family status, marital status, or disability.

You are also not permitted to inquire about an applicant's plans for family expansion or about arrests that didn't result in convictions.