Q: I am renting out an apartment unit. One of the applicants was arrested for assault last month but has not been convicted of the crime. I do not feel comfortable renting to someone who was arrested for assault. Can I deny his application based on his arrest?
A: No, you may not deny a potential tenant solely based on a prior arrest because an arrest is not evidence that a crime was committed. However, you may consider a criminal conviction as a factor in your tenant screening process. You may deny a potential tenant with a criminal conviction if that tenant’s conviction indicates a demonstrable risk to other tenants and/or property. If you use this as a tenant screening factor, then you must apply it consistently to all applicants.
Q: I own a 10-unit apartment complex. I have an applicant for one of the units that was convicted of sexual assault two years ago. Can I deny him based on his criminal background?
A: Yes. As the landlord, you may consider the severity of the crime and the safety of your tenants and property. Sexual assault is a serious crime and poses a safety risk to your other tenants. If you deny this applicant, then you will need to deny all other applicants with similar or comparable convictions. For example, if you deny this applicant based on his criminal action, but accept an applicant that has been convicted of aggravated assault, then you will be discriminating against the first applicant. A person that is convicted of aggravated assault is comparably as dangerous to surrounding tenants.
Q: I use a property management company to manage my 5-unit apartment complex. My management company wants to rent to two single men. I am worried that they are not as capable of paying the rent as a married couple and are more likely to breach the lease. Can I tell the property management company to only rent to the type of people that I think can pay rent?
A: No, you cannot limit your applicants to your personal belief of who may or may not pay rent. If a potential tenant challenges the landlord’s application procedures, then the landlord will have to prove they did not discriminate based on race, color, religion, sex, disability, national origin and familial status. A landlord should avoid subjective inquiries on an application as much as possible. However, you can set a minimum credit score and amount of required monthly income to assist in the likelihood that the potential tenants can pay rent.
Q: I have two applicants for my condominium rental and a strict “no pet” policy. Both applicants meet the required monthly income, but the second applicant has an emotional support animal. I selected the first applicant because I always select the first qualified applicant as a tenant. I am worried that the second applicant will claim I discriminated against her because she has an emotional support animal. What could happen if she files a complaint claiming that I violated the fair housing laws?
A: In California, a tenant could file a complaint with the California Department of Fair Employment and Housing “DFEH.” The DFEH may investigate and force mediation. The potential tenant may also file a Federal complaint with Housing and Urban Development “HUD.” HUD will investigate and offer alternative dispute resolution. It will be your responsibility, as the landlord, to prove that you have acted in good faith and used only objective factors in selecting your tenant. For example, you will need show that you processed these applications the same way that you always process applications and prove the service animal was not the reason for rejecting this applicant. It is also possible the tenant will file a lawsuit.
Q: I rent out rooms in my house and I don’t usually require criminal history reports for my potential tenants. Should I always run criminal history reports?
A: It depends. You may find it helpful to first collect the applicant’s monthly income, credit score, renter’s history, and employment before taking the next step in running a criminal background check. This will cut down the cost and time in screening your applicants. If you have multiple worthy applicants, then you may want to run criminal background checks on all of them before choosing the new renter.
Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center, has been doing evictions for over 20 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday – Friday from 9:00 AM to 5:00 PM.