New York landlords and real estate brokers who screen prospective tenants during the application process must know the difference between legitimate questions and discriminatory questions that could violate fair housing laws.
Landlords may establish set financial and credit qualifications to determine if the applicant will be a good tenant. Qualifications and inquiries must be applied equally to all applicants and must not be influenced by creed, color, national origin, sexual orientation, gender identity or expression, military status, age, familial status, race, disability, source of income discrimination or other protected factors. Screening criteria used by landlords must apply equally to all applicants. Screening may include:
- Credit checks.
- Work and landlord references.
- Personal references.
- Questions about the number of people who will live in the unit.
- Criminal background checks, including the sex offender registry.
Fair housing laws generally prohibit housing providers from asking direct or indirect questions that may reveal a person’s protected class, even if asked of all applicants. However, inquiries designed to qualify an applicant for housing for senior citizens or people with disabilities are permissible. Inquiries that may be discriminatory include:
- Do you have a disability?
- What is your religion?
- How old are you?
- Where were you born?
- Are you gay?
- Are you married?
- What is your race?
Requiring the following documents may be discriminatory:
- Medical documentation (unless there is a request for a reasonable accommodation for a disability).
- Marriage certificate;
- Passport, birth certificate, or any document that reveals age, race, national origin, or alienage/citizenship status.
- Photograph with the application. An applicant can be asked to provide government-issued identification but this requirement must be applied consistently to all applicants and should not be restricted to a particular form of identification (e.g., a driver’s license).
Background-check fees and credit report fees are limited to $20 and can be waived if the tenant provides a copy of a background check or credit check that is less than 30 days old. Landlords and brokers may not charge a higher fee even if they say that the amount is “refundable.”
Tenants may not be charged a security deposit that exceeds one month’s rent and may not be required to prepay rent, as a condition of obtaining a lease. Tenants may not be denied housing that they are otherwise eligible for, on the basis of a history of past or pending landlord and tenant court eviction proceedings or that they intend to use a lawful source of income, such as a housing subsidy like a Section 8 voucher, to pay their rent.