Multiple Choice Question: April is National Fair Housing Month! Let’s test your knowledge of the fair housing laws. Which of the following is not a fair housing violation for a residential landlord who is pre screening a prospective tenant? Pick the best answer:

A. Refusing to rent to someone with children.
B. Refusing to rent to someone who receives Section 8 housing assistance vouchers.
C. Refusing to rent to someone who is not a U.S. citizen or legal resident.
D. Refusing to rent to someone with a criminal history.
E. None of the above. 

Answer: The correct answer is E. As for Answer A, a landlord cannot refuse to rent to someone based on certain personal characteristics, such as, but not limited to, their race, color, religion, gender, disability, or familial status. Someone’s “familial status” includes whether that person has children.

A landlord can, however, restrict the total number of occupants in a residential unit, but the legal analysis as to the maximum number of occupants is very complicated (see Questions 33 and 34 of C.A.R.’s Property Management FAQs (password-protected for C.A.R. members only)).

Answer B is also wrong. A residential landlord cannot discriminate based on a prospective tenant’s source of income. As of January 1, 2020, the term, “source of income,” was expanded to specifically include Section 8 vouchers or other public assistance (see Cal. Gov’t Code sections 12927(i) and 12955).

Answer C is also wrong. California enacted a law in 2007 specifically prohibiting a residential landlord from inquiring about or requiring proof of a tenant’s immigration or citizenship status (see Cal. Civil Code Section 1940.3(b)).

Answer D is also wrong. Effective January 1, 2020, the California Department of Fair Employment and Housing (DFEH) imposed new regulations for landlords who consider a prospective tenant’s criminal history (see 2 CCR sections 12264-71). Under the new DFEH regulations, a landlord can only deny housing based on someone’s criminal conviction that is directly related to a legitimate and nondiscriminatory interest, such as the safety of other residents. For example, a 10-year old misdemeanor conviction for driving a vehicle is unlikely to be directly related to renting a property, whereas a recent conviction for arson could be. More information, including additional requirements for a landlord considering someone’s criminal history, is available from DFEH’s Fair Housing and Criminal History FAQ.

Our Agents’ Role: Although lease listing agents may want to do what they can to protect their landlords from undesirable tenants, there are serious limitations as to what you are allowed to do. You must provide landlords with our BHHS Landlord Advisory, which specifically informs them that they must personally ascertain the qualifications of each prospective tenant independently of our brokerage. You must also provide landlords with C.A.R.’s Fair Housing and Discrimination Advisory (FHDA). You should not prescreen any tenants on a landlord’s behalf. You should also refrain from personally ordering a tenant’s credit report or criminal history information.

Copyright© 2022 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of April 4, 2022. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.