This article was posted on Tuesday, Aug 01, 2017

Q: I have a potential tenant that has been arrested in the past. 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 have an applicant for one of my rental units that was convicted of arson a year ago. Can I deny them based on their criminal background?
A: Yes. As the landlord, you should consider the severity of the crime. Arson is a potential hazard to your other tenants and your property. If you deny this tenant, then you will need to deny all other applicants with similar or comparable convictions. For example, if you deny this applicant based on their 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 own an apartment building and want to tell my property management company the type of people I like to rent to. Can I tell them 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 had a potential tenant that had a service animal but did not meet the required monthly income for my unit. I selected a different tenant that has a higher monthly income. The rejected tenant with the service animal said she is going to file a complaint for violation of the fair housing laws. What could happen if she files a complaint?
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 to provide your income reports from each applicant 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 am a landlord 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.

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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.  Tel: 619-235-6180, website: or email [email protected]