Tenant Screening
& Fair Housing

Federal protected classes

Fair Housing Act (42 USC 3601 et seq.):

• Race
• Color
• Religion
• National origin
• Sex (includes gender identity and sexual orientation per Bostock v. Clayton County 2020)
• Familial status (children under 18, pregnancy)
• Disability / handicap

State and local expansions

• Source of income. NY, NJ, MA, CA, WA, OR, CT, DC, MD, IL, CO, VT, ME, and many cities (Chicago, Seattle, Philadelphia, Austin). Section 8 voucher acceptance mandatory in these jurisdictions.
• Marital status. Most states.
• Age. Some states; federal only prohibits discrimination against families with children, not elderly.
• Veteran / military status. Many states and cities.
• Gender identity. Explicit state protection in CA, NY, NJ, MA, IL, WA, OR, CO, CT, DC, and others.
• Survivors of domestic violence. Federal VAWA + many state expansions.
• Immigration status. CA AB 291 bans landlord immigration-status inquiry. Some cities similar.

Uniform written criteria

The cornerstone of defensible screening: written criteria applied identically to every applicant. Example:

Minimum qualification criteria:
  - Credit score 650+
  - Gross monthly income ≥ 3x monthly rent
  - No evictions within past 7 years
  - No unpaid judgments to prior landlords
  - No violent felony convictions within past 7 years
    (individualized assessment per HUD 2016 guidance)
  - Satisfactory references from 2 prior landlords
  - Valid government ID
  - US work authorization (employment verification)

Application process:
  - $40 application fee (non-refundable, covers screening)
  - Application via online portal
  - Screening via TransUnion SmartMove (tenant pays)
  - Adverse action letter if denied based on credit report (FCRA)
  - Response within 72 hours of complete application

Publish this criteria. Apply it identically. Document every denial with specific criteria failed. If you ever rent to someone who didn’t meet the criteria, you’ve opened disparate treatment exposure.

Screening services

• TransUnion SmartMove. $40/applicant. Credit, criminal, eviction. Widely accepted, no landlord credentialing required.
• RentPrep. $40–60. Includes court-record verification.
• NTN (National Tenant Network). $25–40. Older, more landlord-oriented.
• Experian RentBureau. Tenant rent-payment history. Useful signal beyond credit score.
• FindHotel ID / LexisNexis. Enterprise-grade, institutional landlords.

Criminal background — HUD 2016 guidance

HUD 2016 Office of General Counsel Guidance: blanket criminal bans disproportionately affect protected classes and violate FHA. Required: individualized assessment considering:

• Nature and severity of offense
• Time elapsed since offense
• Nexus to tenancy (arson for landlord concern, petty theft for different concern)
• Evidence of rehabilitation
• Age at time of offense

Acceptable policy: no felonies within past 7 years, no violent offenses regardless, no arson, no crimes against children or vulnerable adults. Policy must be documented and consistently applied.

ESA / service animals

Service animals (individually trained to perform tasks for disability) and Emotional Support Animals (ESA) are accommodations under FHA, not pets. Key points:

• No pet fee, no pet rent, no breed restriction. Landlord cannot charge additional fees.
• Tenant pays damages. Standard damage deposit applies; animal-caused damages deductible.
• ESA verification. HUD 2020 Assistance Animal Notice allows landlord to request documentation from a healthcare professional with actual knowledge of tenant’s disability. Online certificate mills insufficient.
• Reasonable accommodation engagement. Landlord must engage in interactive process before denying. Denial must be documented with specific reason — direct threat, fundamental alteration, or undue burden.

Adverse action (FCRA)

If denial is based in whole or part on information from a consumer report (credit or tenant screening service), Fair Credit Reporting Act requires adverse action letter within 60 days: statement of action, name/address of reporting agency, statement that agency didn’t make the decision, applicant’s right to free report copy within 60 days, right to dispute.

Disparate impact doctrine

Texas Dept of Housing v. Inclusive Communities (2015) confirmed FHA disparate impact: a policy neutral on its face can violate FHA if it disproportionately burdens a protected class without compelling justification. Example: "no children in upstairs units" may be disparately impact familial status. Document the business justification for any policy that could affect protected classes.

Common pitfalls

• Verbal inquiry traps. Phone conversation with applicant. Asking "are the kids school-age?" or "what church do you attend?" is a discrimination claim even if not written.
• Different screening for different applicants. Ran credit on one, skipped for another. Disparate treatment. Always run all applicants identically.
• Blanket criminal ban. "No felonies ever." Illegal since HUD 2016. Must individualize.
• Denied ESA. "My building doesn’t allow dogs." Fair Housing claim. Even if dog is service animal or ESA, must engage accommodation process.
• Section 8 refusal in protected state. "I don’t take vouchers." In source-of-income states, this is a violation. Must accept and apply standard criteria.
• Steering. "That unit isn’t available; let me show you ones in a different part of the building." If based on protected class, steering violation.
• Advertising preference language. "Ideal for single professional" — familial status and marital status discrimination. "Quiet building" — age and familial. Scrub all ads of preference language.
• Application fee state caps. CA $59.67 (2024), MA $150 max, NY $20 max. Verify state cap.