Tenant Screening: What Landlords Can and Can't Ask

If you are a landlord looking to fill a vacant rental unit, screening for the right tenant is more complicated than ever. You want to find someone responsible with a steady income and a good credit history. However, there are a lot of off-limits screening questions. Asking about the wrong thing on a rental application could lead to legal trouble.

Landlord-tenant laws vary by state. Talk to a landlord-tenant attorney to ensure your application process complies with federal and state law. Contact a local landlord-tenant lawyer for legal advice about what you can and can’t ask a prospective tenant. 

What Do Landlords Have To Watch Out for When Screening Tenants?

There are federal, state, and local fair housing laws to provide equal access to people looking for housing. These laws limit what you can ask and what you can consider when looking to fill a rental property. Restrictions can apply to all rental housing areas, including advertisements, the tenant screening process, and the rental agreement.

The federal Fair Housing Act (FHA) is one of the most expansive anti-discrimination laws. The FHA prohibits discrimination in housing based on a protected class. Protected classes under the FHA include:

• Race
• Color
• National origin
• Religion
• Sex
• Disability
• Family status

The FHA is a federal law. However, states, counties, and cities may have additional protections. In many cities and states, protected classes also include gender identity, ancestry, public assistance, sexual orientation, and military status.

Can I Ask About Criminal History?

In most states, you can ask about your criminal history and deny renting to someone because of their criminal record. Landlords may have concerns about the safety of other tenants. However, some states and municipalities have restricted denying housing based on criminal convictions. Even in those states, there are usually exceptions for registered sex offenders and where the property owner shares the property with the potential tenant.

Can I Ask About Credit Score?

One of the most common parts of a background check for renters is their credit report. A credit check shows your bill payment history, available credit, and unpaid debts. Landlords may have concerns about a renter with a low credit score being able to pay their monthly rent or finishing out the terms of the lease.

Can I Ask About Marital Status or Family Members?

Familial status is also a protected class. You generally cannot refuse to rent to someone because they have children or if they are planning to have children. Be careful about advertising properties that may indirectly reflect a preference for renters without children.

Marriage is not protected under federal law but may be under many state laws. This includes treatment based on someone being single, married, engaged, widowed, or divorced. In states prohibiting marital status discrimination, you must treat unmarried couples like married couples.

Can I Ask About Income and Employment?

Many rental applications require listing employment history and income. Landlords have an interest in knowing about a potential renter’s source of income and if they have enough to afford rent. A renter with an irregular job history and gaps in employment may be more of a risk than someone who has been with the same company for years.

Can I Ask About Smoking Habits?

Smoking is not a protected class. If you do not want a smoker tenant, you can screen out applicants based on the smoking policy. If the lease prohibits smoking in the unit or common areas, a tenant caught smoking is violating the lease.

Can I Ask About Guests or Overnight Visitors?

You can impose reasonable restrictions that affect the property or the rights of other tenants. This includes noise restrictions and curfews. Generally, tenants cannot have another tenant move in without the landlord’s permission, but this may depend on the lease agreement.

If a tenant has a guest or partner who stays overnight a lot, it may violate the lease agreement. You may want to clarify the restrictions on overnight guests in compliance with state law.

Can I Ask About Pets?

In a rental application or during screening, you can ask about pets. Most landlords can restrict pets, types of pets, and the number of pets. Generally, you can also require a pet damage security deposit. However, some states limit how much you can charge for pet fees and deposits.

According to the Americans with Disabilities Act (ADA), service animals are not pets. You cannot discriminate against a renter with a service animal. Even with a no-pet policy, you may have to waive the restriction and any pet fees for service animals.

How Can a Lawyer Help With Tenant Screening?

Property management will generally run a background check on potential tenants. This generally involves using a private tenant screening company to run a check. The screening report can show:

• Payment history
• Credit history
• Eviction history
• Criminal background check

However, federal, state, and local laws may limit the information you can use to choose the right tenant. Before you ask prohibited questions or put up an ad that violates the FHA, talk to a landlord-tenant attorney.

A landlord-tenant lawyer knows local landlord-tenant laws and proper rental application questions. Speak with a local landlord-tenant attorney for legal advice about what the types of questions you can ask prospective renters.