Discrimination on the Basis of Lawful Source of Income


In this seminar, experienced Rochester landlord tenant attorney discusses discrimination on the basis of lawful sources of income.

As of April 2019, New York State Human Rights Law protects people on the basis of discrimination against the source of income. There are exceptions: the law doesn’t cover two-family homes occupied by the owner; rentals in rooming houses occupied by the owner; or rental of rooms to persons of the same sex.

Lawful sources of income include just about everything: child support, alimony, spousal maintenance, foster care subsidies, Social Security, and public assistance. Housing assistance includes Section 8 or any other type of vouchers regardless of whether they’re paid directly to the tenant or the landlord. The following people cannot discriminate: housing providers, real estate professionals, managing agents, co-op boards, and condo associations. If a tenant wants to sublet his unit, he, too, can’t discriminate.

What’s discriminatory? You can’t have any advertisement, publication, or application which expresses any intent to limit or discriminate on the basis of the source of income; if a real estate professional refuses to negotiate for sale, rental, or lease; a refusal to sell, rent, or lease housing based on an individual’s source of income; to discriminate regarding the terms of housing, furnishing of services based on source of income. You’ve got to treat everyone the same regardless of the source of their income.

To avoid discrimination lawsuits, you should have a non-discriminatory screening protocol and apply it to all applicants for housing. You can have your standards as long as you apply the same to everyone. We used to say that your best tenants are going to be someone that has 20 or so years of full-time employment. Why is that? Because if you ever have to sue someone to collect a judgment, it will likely involve garnishing someone’s wages.

Under the new law, you cannot charge additional security deposits either to make up for that. You can routinely check credit reports, but you cannot screen tenants out on the basis of poor rental histories.

In your income screening, you have to consider their rent vouchers or other subsides just the same as other income. If you’re going to have a certain minimum, you can still have minimum income levels as far as what you will consider for them to be able to afford the rent. It’s not unlawful to ask about income, only to discriminate based on lawful sources of income.

You can ask where the income’s coming from. You can require documentation in order to determine a person’s ability to pay for their rent, but you have to accept all lawful resources equally, whether it’s Section 8 or social services, which now have to be considered just the same as earned income. Of course, you’re at a disadvantage since there’s no way of being assured that you will always be paid under these provisions.

Contact our experienced Rochester Landlord Tenant Attorneys for any questions or further guidance.  Let our experience work for you.