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Fair Housing - Part 3: Legal Reasons To Deny A Rental Applicant

Posted by Tristan R. Pettit, Esq. in Fair Housing / Discrimination, Protected Classes, Screening Tenants / Comments

From reviewing the analytics program that works in conjunction with my blog, I have learned that my two prior posts on fair housing/discrimination issues peaked a lot of interest which resulted in them being two of my most read posts to date.  My prior posts can be read here and here.  As a result I have decided to add another post related to Fair Housing issues.

When I give seminars on the topic of screening and accepting tenants, especially after I have just discussed the 12 protected classes, the attendees often feel as if they are not allowed to reject any applicant that is a member of a protected class.  The important thing to remember is that you are legally allowed to deny rental to a member of a protected class as long as the reason you are denying them rental is not because they are a member of a protected class.  This is a subtle distinction but a very important one.  If you keep this distinction in mind during your screening process I think you will feel less "hamstrung" in general and hopefully more confident that you are not running afoul of the law.

Here are some examples of acceptable reasons to deny an applicant rental, which do not violate fair housing laws at the federal, state or local level (at least not in the city of Milwaukee):

1.     The person smokes.

2.     The person wants to keep a pet (not to be confused with a service animal or a comfort animal, both of which are not pets).

3.     The applicant has insufficient income (income is defined broadly and includes more than just a salary from a job)

- Note:  The City of Madison does have a local ordinance preventing landlords from denying a rental applicant based on minimum income standards.

4.     The person's income cannot be verified.

5.     The applicant has been arrested and/or charged with a crime.

- Note: Dane County and the City of Madison have made persons with arrest records or criminal convictions protected classes in some instances.

6.     The person has been convicted of a crime.

- Note: Dane County and the City of Madison have made persons with arrest records or criminal convictions protected classes in some instances.

7.     The individual has been sued for owing someone money.

8.     The applicant has a money judgment against them.

9.     The person does not have a prior rental history (1st time renters are not protected).

10.     The applicant has a poor rental history.

11.     They do not provide complete answers on the application.

12.     The applicant provided false information on the application.

13.     Prior landlords had negative comments about the applicant and would not rent to them again.

14.     The person has poor or no credit history.

15.     They have only been employed for a short period of time at their current job ( I prefer to see at least 6 months - 1 year of employment at their current job so that I know there is some stability in their source of income).

16.     The individual has filed bankruptcy in the past.

17.     They have a foreclosure on their record.

These are just 17 of the many legal reasons that a landlord may deny a person's rental application even if the applicant is a member of a protected class.  As long as you are rejecting an applicant for a reason other than the person being a member of a protected class -- such as for the reasons set forth above -- you are not violating the fair housing laws.

To protect yourself further, I strongly suggest that rental property owners and management companies utilize written screening criteria which sets forth the minimum standards that must be met for an applicant to be accepted, or to put it another way, what will cause you to deny an applicant.

Tristan is a shareholder with the law firm of Petrie+Pettit and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.

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