Q: Can I reject an applicant because they smoke or drink?
– TVS Landlord
Generally you can reject a tenant for any sort of behavior so long as you are not violating discrimination rules. There is a common perception that landlords must accommodate smokers. But are smokers protected by discrimination rules?
Courts in the U.S. have made it very clear that cigarette smokers are not a protected class with regard to fair housing rules. In fact, several have entertained lawsuits against landlords for renting to smokers.
Because cigarette smoke is a known health hazard and smoking affects others second-hand, cigarette smoking is not currently perceived as a legal right. It’s not likely that a landlord is going to stir up any trouble by rejecting an applicant who wants to smoke at home, but there are a couple of landmines to avoid:
First, it is best to have an official “no-smoking” policy before you reject individual applicants who smoke. For instance, your lease agreement could provide this restriction and spell out the consequences for violating it. The corresponding rental application could then ask whether the applicant is willing to forgo smoking on the rental property. Ask every tenant the same questions. Without a uniform policy, the suspicion arises that a landlord could be stereotyping certain tenants, which can lead to discrimination claims.
It is also important that you enforce the nonsmoking policy if you have promised current residents that you are screening new tenants for smoking.
To be effective, the nonsmoking policy needs to lay out specifically what is prohibited, for instance smoking in the units, balconies, common areas.
Drinkers Need Not Apply?
Rejecting an applicant who drinks alcohol is a trickier question. Is it drinking that you want to prohibit, or the rowdy behavior that sometimes accompanies excess? (If the drinking prohibition is based on a religious practice, that can be a problem.)
It may be more effective to restrict large gatherings of drinkers – like “kegger” parties that draw complaints from other residents.
A landlord is not allowed to reject tenants on the basis of perceived or existing disabilities. If a landlord rejects an applicant because he or she believes the applicant has a drinking problem, that could be discrimination. Landlords need to steer clear of tenant screening questions that would uncover past addictions or medical treatment for alcohol-related diseases. Instead, place well-worded restrictions in your lease agreement or tenant policy statements regarding the present-day behavior you want to limit, and ask the applicant if he or she is willing to abide by those rules.
This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).
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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.