The Best of the Legal Hotline: Fair Housing Implications for Tenant Screening


 Tracy Rucka  |    April 12, 2021
Legal Hotline

Tenant screening

What are good standards for tenant screening to assure compliance with fair housing law? Does the landlord need a reason to deny an applicant? Is the landlord required to say why a person is denied?

Wisconsin’s Open Housing Law prohibits unlawful discrimination in housing based on sex; race; color; sexual orientation; disability; religion; national origin; marital status; family status; lawful source of income; age (18 and over); ancestry; or status as a victim of domestic abuse, sexual assault or stalking. The law protects the rights of people in the rental or purchase of housing. 

The key to tenant screening is to be consistent and fair. Landlords and property managers typically screen prospective tenants with respect to their income, credit, references and eviction records, using a written tenant application form. Keep to objective and not subjective standards, and apply them in the same manner in every case. Some landlords also do criminal background checks. More information about using criminal history is discussed later in this article. 

The landlord or property manager should have predetermined, consistent standards in each of these categories that are applied fairly to all. It may be beneficial to provide these standards, in writing, to all applicants. All prospects must be screened in a fair and nondiscriminatory manner to avoid accusations of fair housing discrimination. Any time an applicant is rejected based on an immutable characteristic or an intuitive judgment, there will be a risk of a fair housing complaint. A landlord is not required to provide an explanation of why a prospective tenant has been denied.  

For more information about tenant screening, see the April 2009 Legal Update, ‚ÄúWisconsin Rentals,‚ÄĚ at www.wra.org/LU0904 and the July 2003 Legal Update, ‚ÄúResidential Rental Primer,‚ÄĚ at www.wra.org/LU0307.

Conviction history

On what grounds can a landlord deny a rental application without discrimination when an applicant has a conviction record? For instance, a potential tenant’s history is concerning because the applicant has a drug felony charge from 2007, a disorderly conduct ticket from 2012, and a criminal damage to property conviction from around 2012. Can a landlord deny tenancy based on conviction records? 

The landlord may review their tenant screening standards with legal counsel in light of the U.S. Department of Housing and Urban Development (HUD) guidelines stating property managers may not adopt tenant screening standards excluding all applicants with any conviction records. Under the HUD guidance, landlords and property managers cannot adopt a screening standard that excludes all applicants with any conviction record. The guidance also states that screening standards based on prior arrests are unlawful because arrest records do not prove past unlawful conduct and thus are an unreliable measure of an applicant’s potential risk to neighbors or property.

While a record of conviction as opposed to an arrest will serve as sufficient evidence to prove an individual engaged in criminal conduct, the guidance emphasizes to landlords that ‚Äúblanket bans‚ÄĚ are most likely illegal. A landlord with a blanket rejection of any person with any conviction record ‚ÄĒ no matter when the conviction occurred, the nature and severity of the conduct, or what the person has done since ‚ÄĒ will be unable to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A landlord with a more tailored policy that excludes individuals with only certain types of convictions and examines the nature, severity and recency of the conduct must still prove that its policy is necessary to serve a substantial, legitimate, nondiscriminatory interest.

The balance between open housing and screening standards is explained in further detail in ‚ÄúHUD‚Äôs New Take on Tenant Screening Standards‚ÄĚ in the May 2016 Wisconsin Real Estate Magazine at www.wra.org/WREM/May16/HUD and ‚ÄúWaging the War Against Discrimination‚ÄĚ in the April 2016 Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr16/Discrimination. Be sure to see the National Association of REALTORS¬ģ‚Äô helpful list of do‚Äôs and don‚Äôts for the development of criminal history-based housing policies in ‚ÄúFair Housing Act: Criminal History-Based Practices and Policies,‚ÄĚ at www.realtor.org/articles/fair-housing-act-criminal-history-based-practices-and-policies. Also see the Just A Landlord blog post, ‚ÄúUse of Criminal Records for Screening After 4/4/16,‚ÄĚ at justalandlord.com/2016/05/02/criminal-records-for-screening-after-4416-hud-notice.¬†
More general information about open housing is available in ‚ÄúHousing Discrimination Law in Wisconsin‚ÄĚ in the April 2015 Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr15/OpenHousing.¬†

Charge vs. conviction 

Can a broker turn down a potential tenant who wants to rent one of the broker’s properties if he has been charged for domestic abuse or other crimes?

The thing to keep in mind about criminal charges is they are charges. A person is innocent until proven guilty. Therefore, to use a criminal charge as a basis to reject an applicant is not an appropriate standard for tenant screening.

Arrest records under the guidance

The guidance observes that a landlord or property manager with a policy or practice of excluding tenant applicants because of one or more prior arrests without any conviction cannot show that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Denying housing based on a record of arrest is not legitimate because arrests alone are not proof of guilt. Landlords must distinguish between arrests and convictions and cannot use arrests as the justification to deny applicants.

Conviction records under the guidance

While a record of conviction as opposed to an arrest will serve as sufficient evidence to prove that an individual engaged in criminal conduct, the guidance emphasizes to landlords that ‚Äúblanket bans‚ÄĚ are most likely illegal. A landlord with a blanket rejection of any person with any conviction record ‚Äúno matter when the conviction occurred, the nature and severity of the conduct, or what the person has done since‚ÄĚ will be unable to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.

Can the rejection of a tenant application based on conviction record be a fair housing violation based on protected classes? 

A tenant applicant who is on probation and/or has a criminal record is not part of a protected class under federal or state protected classes. However, a county or municipality can have its own list of protected classes, and if the property is in that area, landlords would have to abide by those local laws as well. The landlord may contact the county and local municipality to determine if they have any additional protected classes. 

Support animals 

The landlord is hearing different information about support animals. Can you provide an overview of the standards? 

The Fair Housing Act protects the right of people with physical or mental disabilities to keep emotional support animals, even when policy explicitly prohibits pets. The law generally requires the owner or property manager to make an exception to the no-pet policy as a reasonable accommodation as long as the accommodation does not constitute an undue financial or administrative burden for the complex or fundamentally alter the nature of the housing. A reasonable accommodation is a change in rules, policies, practices or services so that a person with a disability will have an equal opportunity to use and enjoy a dwelling unit or common space.

If a tenant needs a support animal, the tenant should request a reasonable accommodation, preferably in writing, from the landlord. The request should state the disability, if not readily apparent, and indicate a relationship between the tenant’s ability to function and the assistance of the animal. In addition, the tenant should include a letter or prescription from an appropriate professional, such as a therapist or physician, verifying the need for the support animal. The tenant need not disclose the details of the disability nor provide a detailed medical history. Federal law does not include any specific requirements for registration or credentials for the animals involved.

Support and service animals that assist persons with disabilities are considered to be auxiliary aids and generally are exempt from an owner’s pet restrictions, pet deposits and extra pet rent. Service animals include, without limitation, guide dogs for persons with vision impairments, hearing dogs for people with hearing impairments, and emotional assistance animals for persons with chronic mental illness.

The landlord should proceed carefully because the landlord cannot and does not want to make any representations about the legal rights of the tenant. At the same time, if the written request and counselor’s letter does not seem to be legitimate because online operations can provide documents for a fee for those wishing to take advantage of the legal accommodation for those with real disabilities, it may be appropriate to make further inquiry without prying too far into medical issues. The landlord may consult with legal counsel to discuss the tenant’s legal rights relating to service and support animals in the property.

See ‚ÄúSorting Through Assistance Animal Requests: HUD‚Äôs new assistance animal guidance,‚ÄĚ in the March 2020 Wisconsin Real Estate Magazine at www.wra.org/WREM/Mar20/AssistanceAnimals and the sources cited therein for the latest guidance regarding this issue. Also see the Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act at www.justice.gov/crt/about/hce/joint_statement_ra.pdf and ‚ÄúAssistance Animals in Housing: Sorting through the Myths and Misunderstandings‚ÄĚ in the April 2013 Wisconsin Real Estate Magazine at www.wra.org/WREM/Apr13/AssistanceAnimals.¬†

Tracy Rucka is Director of Professional Standards and Practices for the WRA.

Copyright 1998 - 2021 Wisconsin REALTORS¬ģ Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education