Fair Housing Laws for Landlords: What You Can and Can't Do

Fair Housing laws exist to ensure equal housing opportunities for all people, regardless of race, color, religion, sex, national origin, familial status, or disability. For landlords, understanding these laws isn't optional—violations can result in substantial fines, legal fees, and even criminal penalties.

This comprehensive guide explains what landlords can and cannot do under federal Fair Housing laws, state and local protections, how to establish lawful screening criteria, and how to protect yourself from discrimination claims.

The Fair Housing Act: Foundation of Federal Protection

The Fair Housing Act of 1968 (amended in 1974 and 1988) prohibits discrimination in housing based on seven protected classes:

1. Race
2. Color
3. Religion
4. National Origin
5. Sex (including gender identity and sexual orientation as interpreted by HUD)
6. Familial Status (families with children under 18, pregnant women, those obtaining custody)
7. Disability (physical or mental impairments that substantially limit major life activities)

The Act covers most housing transactions including:

• Rental applications and tenant selection
• Lease terms and conditions
• Maintenance and repairs
• Evictions
• Advertising
• Financing

Exemptions (Very Limited)

The Fair Housing Act does NOT apply to:

• Owner-occupied buildings with 4 or fewer units (and owner doesn't own more than 3 properties)
• Single-family homes sold or rented without a broker (if owner doesn't own more than 3)
• Religious organizations or private clubs offering housing to members

Important: Even if your property qualifies for an exemption from the Fair Housing Act, state and local laws may still apply, and you still cannot advertise in a discriminatory manner.

State and Local Protected Classes

Many states and cities add additional protected classes beyond the federal seven:

Common Additional State Protections:

• Sexual orientation and gender identity (explicitly, though HUD interprets "sex" to include these)
• Marital status (California, Alaska, New Jersey, many others)
• Source of income (California, Connecticut, Oregon, Washington, DC, NYC, and many cities)
• Age (Michigan, New York, many others)
• Military/veteran status (California, Florida, many others)
• Criminal history (some cities limit how you can use criminal records)
• Victims of domestic violence (cannot be discriminated against for being DV victims)

Example: In California, you cannot refuse to rent to someone because they'll pay rent with a Section 8 voucher (source of income protection). In many states, this is not protected.

What You CANNOT Do: Prohibited Practices

1. Discriminatory Advertising

Prohibited:

• "No children"
• "Perfect for Christian family"
• "Older tenants preferred"
• "Males only"
• "Great for single professionals" (discourages families)
• "Walking distance to churches"
• Using models of only one race in photos
• "Traditional family setting"

Allowed:

• "Close to [specific school/temple/church]" (factual statement)
• "Quiet building" (as long as it's not code for "no children")
• Photos showing the actual diversity of your building
• "Near public transportation"
• "Pet-friendly"

HUD Guidance: Avoid describing desired tenants—describe the property instead.

2. Discriminatory Questions

NEVER Ask:

• "Do you have children? Planning to have children?"
• "What country are you from?"
• "Do you go to church?"
• "Are you married?"
• "How old are you?"
• "Do you have a disability?"
• "Are you on Section 8?"
• "Have you ever been arrested?"

You CAN Ask:

• "How many people will be living in the unit?" (occupancy is legitimate)
• "Can you provide proof of income?"
• "Can you provide references from previous landlords?"
• "Do you have any pets?" (if pets are restricted)
• "Have you been convicted of a felony?" (in some jurisdictions, with limitations)

3. Different Terms or Conditions

You cannot offer different terms based on protected class status:

Prohibited:

• Higher deposit for families with children
• Shorter lease terms for certain groups
• Restricting families with children to ground-floor units
• Requiring co-signers for only certain applicants
• Different rent prices based on protected class
• Selective enforcement of rules (e.g., noise complaints)

Required:

• Same application process for everyone
• Same screening criteria applied uniformly
• Same lease terms
• Same deposit requirements
• Same move-in costs
• Same access to amenities

4. Steering

Prohibited: Directing people toward or away from certain units or buildings based on protected class characteristics.

Examples of Illegal Steering:

• "You'd probably be more comfortable in our family building"
• "Unit 2A has mostly young professionals" (to discourage families)
• Showing different units to applicants based on race
• Suggesting certain neighborhoods based on national origin

5. Retaliation

Prohibited: Retaliating against anyone who:

• Files a Fair Housing complaint
• Participates in a Fair Housing investigation
• Requests reasonable accommodation
• Opposes discriminatory practices

Examples of Illegal Retaliation:

• Evicting tenant who filed discrimination complaint
• Increasing rent after tenant requests disability accommodation
• Refusing to renew lease of tenant who reported discrimination

What You CAN Do: Legitimate Screening Criteria

You can establish objective, non-discriminatory criteria for tenant selection:

Income Requirements

Allowed:

• Minimum income of 2.5-3x monthly rent
• Applied uniformly to all applicants
• Verified through pay stubs, tax returns, employment letters

Not Allowed:

• Rejecting government benefits as income source (in states/cities with source of income protection)
• Higher income requirements for certain groups
• Refusing to accept verifiable income from lawful sources

Credit History

Allowed:

• Minimum credit score requirement
• Review of credit report for debts, payment history
• Consideration of bankruptcies (with limitations in some states)

Best Practices:

• Use same credit score threshold for all applicants
• Consider extenuating circumstances (medical debt, etc.)
• Provide adverse action notices as required by FCRA

Rental History

Allowed:

• Contacting previous landlords
• Requiring positive references
• Rejecting applicants with eviction history
• Checking for lease violations, property damage, unpaid rent

Limitations:

• Some states restrict how far back you can look at evictions
• Must apply same standards to all applicants

Criminal Background Checks

Complex and Evolving:

HUD Guidance (2016): Blanket bans on anyone with criminal history may violate Fair Housing Act because criminal history disproportionately affects certain racial groups.

Best Practices:

• Individualized assessment of criminal history
• Consider nature, severity, and recency of offense
• Consider evidence of rehabilitation
• Don't ask about arrests (only convictions)
• Follow state/local "ban the box" laws

Automatic Rejections Generally Acceptable:

• Convictions for manufacturing methamphetamine on federally assisted property
• Lifetime registered sex offenders (if not disability-related)
• Recent violent felonies (with individualized assessment)

State/Local Variations:

• California (AB 2011): Landlords cannot consider most criminal history for formerly incarcerated individuals in certain affordable housing
• Seattle: Cannot ask about criminal history until after initial screening
• Washington State: 3-year lookback period for most misdemeanors

Employment Verification

Allowed:

• Verifying current employment
• Confirming income through employer
• Requiring employment history

Not Allowed:

• Refusing applicants who are unemployed if they have sufficient verifiable income
• Discriminating based on type of employment
• Rejecting retirees, students, or disabled persons with adequate income

Occupancy Standards

Allowed:

• Reasonable occupancy limits (typically 2 persons per bedroom under federal guidelines)
• Local building code occupancy limits
• Uniformly applied occupancy standards

Not Allowed:

• Discriminating against families with children
• More restrictive limits than local codes allow
• Refusing to rent multi-bedroom units to families

Example: A landlord can require a 2-bedroom unit to have no more than 4 occupants (2 per bedroom), but cannot refuse to rent a 2-bedroom to a family with 3 children if local codes allow it.

Disability Accommodations: Special Rules

The Fair Housing Act requires landlords to make reasonable accommodations and allow reasonable modifications for tenants with disabilities.

Reasonable Accommodations

Definition: Changes to rules, policies, practices, or services to give a person with a disability equal opportunity to use and enjoy a dwelling.

Examples of Required Accommodations:

• Allowing emotional support animal in no-pet building
• Allowing service animal regardless of breed/size restrictions
• Reserved accessible parking space
• Exception to guest policies for live-in aide
• Allowing rent payment via alternative method due to disability
• Providing notices in alternate format (large print, electronic)

Process:

1. Tenant requests accommodation
2. Landlord can verify disability and disability-related need (if not obvious)
3. Landlord must grant unless it creates undue financial/administrative burden or fundamentally alters the nature of operations

You Can Require:

• Documentation from healthcare provider (for non-obvious disabilities)
• Tenant to pay for damage caused by assistance animal
• Tenant to maintain control of assistance animal

You CANNOT:

• Charge pet deposit or pet rent for assistance animals
• Require specific training certification for emotional support animals
• Deny based on breed restrictions for assistance animals (with very limited exceptions)

Reasonable Modifications

Definition: Physical changes to the property that may be necessary for a person with a disability to fully use and enjoy the dwelling.

Examples:

• Installing grab bars in bathroom
• Widening doorways for wheelchair access
• Installing ramps
• Lowering countertops or cabinets

Rules:

• Tenant's expense: In most cases, tenant must pay for modifications
• Restoration: Landlord can require tenant to restore property to original condition at move-out (if modifications would interfere with next tenant's use)
• Cannot refuse reasonable modifications: If tenant agrees to pay and properly restore
• Cannot increase deposit: Beyond normal amount, though you can require tenant to place funds in escrow for restoration

Exceptions:

• In federally assisted housing or properties built after 1991 (covered by ADA), landlord may need to pay for certain common area modifications

Service Animals vs. Emotional Support Animals

Service Animals (ADA Definition)

• Dogs (and miniature horses in some cases) trained to perform specific tasks
• Task must be directly related to the person's disability
• Examples: Guide dogs for blind, seizure alert dogs, mobility assistance dogs
• Protected everywhere under both ADA and Fair Housing Act
• No documentation required (but can ask what task the animal performs)

Emotional Support Animals (ESA)

• Provide therapeutic benefit through companionship
• Not required to have specific training
• Can be species other than dogs (cats, rabbits, birds, etc.)
• Only protected in housing under Fair Housing Act (not in public accommodations)
• Can require documentation from healthcare provider

Verifying ESA Request:

• Can ask for documentation from licensed healthcare provider
• Cannot require specific form or format
• Cannot ask about details of the disability
• Online ESA certificates are often inadequate (need verifiable healthcare relationship)
• Cannot charge application/review fee for ESA request

Denying ESA Request: Only if:

• No verifiable disability-related need
• Animal poses direct threat to others (actual behavior, not assumptions)
• Animal would cause substantial physical damage that cannot be prevented
• Accommodating would create undue financial/administrative burden

How to Avoid Fair Housing Complaints

1. Create Written, Objective Screening Criteria

Document your tenant selection criteria:

• Minimum income requirement (e.g., 3x rent)
• Credit score threshold
• Rental history requirements
• Criminal background policy
• Occupancy standards

Apply these criteria uniformly to every applicant.

2. Document Everything

Keep records of:

• All applications received
• Screening results for each applicant
• Reasons for acceptance/denial
• Accommodation requests and responses
• All communications with applicants and tenants

3. Train Anyone Who Interacts with Applicants

Property managers, leasing agents, maintenance staff—anyone representing you must understand Fair Housing laws.

4. Use Consistent Language

Scripts for phone inquiries, email templates, and application procedures ensure uniform treatment.

5. Provide Adverse Action Notices

When denying an application, provide written notice stating:

• The specific reason (failed credit check, insufficient income, negative references)
• Name of screening company used
• Applicant's right to dispute the information

6. Be Transparent About Fees

Clearly disclose all fees, deposits, and charges upfront to all applicants.

7. Advertise Appropriately

Review all ads for discriminatory language. Focus on property features, not tenant characteristics.

8. Process Accommodation Requests Promptly

Respond to disability accommodation requests within a reasonable time (7-14 days max).

What to Do If You're Accused of Discrimination

1. Don't panic: Many complaints are filed due to misunderstandings
2. Document immediately: Write down everything you remember about interactions with the complainant
3. Gather evidence: Application materials, screening criteria, communications
4. Contact your insurance: Landlord insurance often covers Fair Housing defense
5. Hire an attorney: Fair Housing cases are complex
6. Do not retaliate: Retaliation claims are often easier to prove than underlying discrimination
7. Review your practices: Even if complaint is unfounded, use it as opportunity to ensure compliance

Frequently Asked Questions

Q: Can I refuse to rent to someone with a criminal record? A: It depends. Blanket bans may violate Fair Housing Act. You should conduct individualized assessments considering the nature, severity, and recency of the offense. Follow HUD guidance on criminal background screening and comply with state/local "ban the box" laws.

Q: Can I advertise "no Section 8"? A: In jurisdictions with source of income protection (California, Connecticut, Oregon, Washington, DC, NYC, and many cities), no. In other areas, it may be legal under federal law but check your state and local laws.

Q: Can I ask an applicant about their immigration status? A: No. National origin is a protected class. You can verify identity and eligibility to work if required by your lease, but you cannot discriminate based on immigration status or national origin.

Q: Can I prefer to rent to someone without children because I'm worried about property damage? A: No. Familial status (families with children) is a protected class. You cannot make assumptions about damage or noise based on presence of children. You can enforce rules about property damage and noise equally for all tenants.

Q: Am I required to allow emotional support animals even if my building has a strict no-pets policy? A: Yes, if the tenant has a verifiable disability-related need for the animal. Assistance animals are not pets under Fair Housing law—they are accommodations. You cannot charge pet deposits or pet rent, but you can charge for actual damage.

Q: Can I charge higher rent to applicants I perceive as higher risk? A: Only if your risk assessment is based on objective, non-discriminatory criteria applied uniformly (e.g., lower credit score = higher deposit). You cannot charge different amounts based on protected class characteristics.

Q: What if a current tenant complains about a neighbor's service animal? A: You must balance competing accommodation requests. If the animal creates a direct threat or substantial interference with other tenants' use of housing, you may be able to require alternative accommodations. Document everything and consult an attorney.

Q: Can I give preference to current tenants' friends or family? A: Informal referrals are common, but you still must apply the same screening criteria to all applicants. You cannot use referral programs as a pretext for discrimination (e.g., to maintain racial homogeneity).

Q: Are there ever legitimate reasons to treat applicants differently? A: Yes—based on objective, verifiable criteria unrelated to protected classes: credit score, income verification, rental history, criminal background (with limitations), landlord references. The key is applying criteria uniformly to all applicants.

Q: What if my insurance company won't cover tenants with certain breeds of dogs? A: For pets, you can enforce breed restrictions based on insurance requirements. For service animals and emotional support animals, breed restrictions generally cannot be applied except in extremely narrow circumstances (documented history of that specific animal causing injury). Consult with your insurance company and attorney about how to handle this situation.

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Fair Housing compliance isn't just about avoiding lawsuits—it's about providing equal opportunity and treating all applicants fairly and respectfully. When in doubt, consult with a qualified Fair Housing attorney. The cost of a legal consultation is minimal compared to the potential penalties for discrimination, which can include tens of thousands in damages, attorney fees, civil penalties, and damage to your reputation.

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