To Whom Shall I Rent?

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By Kevin Holliday, Esq., Hull, Holliday & Holliday, PLC

According to national figures, one of every 340 adults is a registered sex offender (SO), a number sure to grow as more people move in and out of the criminal justice system. Besides federal, state, and local laws restricting where they can live, many realtors simply refuse to rent to people with such convictions. What are the legal grounds to which a realtor can deny an SO’s rental application, and what legal recourse do SOs have to prevent such discrimination?

One of the bedrock principles of our great country is the private ownership of property. With private ownership comes the right to do with that property as you see fit. But when a property owner decides to take the step of renting that property to someone else, he or she accepts the laws and regulations our society has set up to govern those relationships.When it comes to setting criteria for rental property, what can a Landlord do, or not do? Can the Landlord place limits on who can rent that property or does the owner have to rent to anyone that expresses a desire to live there?

A Landlord is allowed to set reasonable restrictions in deciding who may rent the property, but the key word there is “reasonable”. For example, an Owner can set a minimum amount of income a tenant must earn in order to qualify for the property. A Landlord may also require a tenant’s credit score be at or above a certain number they deemed appropriate for that property. However, a Landlord may not set restrictions that would violate any Federal or State Fair Housing laws or create a disparate impact on a protected class. These laws have declared that certain groups of people are protected and cannot be discriminated against. Because of this, a Landlord may not deny a tenant based certain factors which include in part, race, gender, country of origin, familial status and religion.

When it comes to a criminal record, a Landlord may decide not to rent to convicted felons. May a landlord restrict the type of felony and when the felony occurred? A landlord may choose to have a blanket ban on felony convictions for manufacturing, selling, distributing or trafficking in dangerous drugs, crimes against children, or violent crimes, especially those involving dangerous weapons. Registered sex offenders, however, are not a protected class, and since the requirement to register is a lifetime commitment, denying a registered sex offender would be acceptable. But, a felony DUI that occurred more than 10 years ago may not be sufficient to deny the tenant.

The Attorney General’s Office is exploring how low level, non-violent felonies more than 5-10 years old are affecting people with those convictions in their ability to find housing. This type of “disparate impact” on a particular segment of society could lead to changes in rental criteria that could significantly alter a Landlord’s ability to ban all felonies.

Some Landlords have even chosen to deny any tenant who has ever been arrested, but not convicted, of any crime. This restriction may lead to problems for the Landlord in that another foundational principle in our country is the presumption of innocence. A person that was arrested, but not convicted, did not plead guilty or no contest to any charge, has not committed any offense that would justify denial of the tenancy. This type of restriction would most likely be deemed unreasonable by the court.

When I first started my career just out of law school, I was denied by a Landlord because he did not want to rent to a lawyer. I met every other rental criteria the Landlord had set up, including credit, income, and no criminal history. When he asked what I did for a living, I said I was an attorney. He said “Sorry, I don’t rent to lawyers. Too much trouble.” At first, I thought he was joking. He made it clear he was not and I ended up renting a different property. In my youthful inexperience, I was appalled that I was denied and was sure he had violated some law somewhere. I soon found out lawyers are not a protected class and a tenancy may be denied on that basis alone. I thought it was such an insult at the time. However, after many, many years in a career exclusively in Landlord/Tenant law, and having several rental properties of my own, I don’t rent to lawyers, either.

Kevin Holliday is a partner of Hull, Holliday and Holliday, PLC. He can be reached at 602.230.0088.

The views expressed here are generalized advice or information. Fact-specific questions should always be referred to legal counsel. Statements and opinions expressed in these legal columns are solely those of the author or authors.

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