Rental Applicant Rejected: Did Landlord Discriminate?

by Chris on March 20, 2011

We recently received an inquiry from a renter in California that highlights the difficulties in screening tenants and leasing when an applicant is not a U.S. citizen:

Here’s the question:

“I recently applied to rent a home in California and was denied tenancy.

On the application for people living with me, I listed my two children that will be with me part-time, as well as my girlfriend who will be with me part-time. My girlfriend is not a U.S citizen, and is only in the country for a maximum of three months at a time, as is U.S. law. However because she has no Social Security number, and could not be “verified” (landlords word), they refused me.

When I called to discuss the issue, they said that even if I had a guest staying with me for more than a few weeks, I’d have to fill out an application for them, and they would have the right to refuse that person and also evict me if I had a guest for more than a few weeks without notifying them.

This seems outrageous to me. I’m not breaking any law by having a foreign resident stay with me as my guest. As long as I qualify to rent the property, what guests I invite shouldn’t matter to the landlord. If of course my guests do damage to the property or otherwise violate the lease, then the landlord has the right to evict me or take action against me. But their concern was, and again I’m quoting them, that if they had to evict me and my foreign-resident girlfriend was there, that they’d have no legal ground to stand on and would not be able to get her out.

Is this legal? Is it discrimination? To me it means that I have to lie on future applications and pretend my girlfriend doesn’t exist.”

The question of discrimination in this case is complicated by the fact that this happened in California, which recently passed a statewide law that prohibits a landlord from discriminating against a rental applicant on the basis of immigration status.  However, landlords there still have the right to screen tenants to verify identity and financial qualifications as a renter.  This means a landlord in California may have to conduct a tenant background check without the use of a Social Security number.  That may be accomplished through name matches with date of birth or previous addresses, and references. In order to do this, that individual– not their friend, needs to fill out a rental application and authorize the landlord to do the tenant background check.

While it is likely not the case here, having a friend or family member rent an apartment in their name and then moving in as a ‘guest’ is a good way for a problem tenant — someone who has a bad credit report, a prior eviction, or a criminal record, to avoid the consequences of their bad rental history.

This applicant makes the statement that he is not breaking any laws by allowing a foreign resident to stay in the rental property, but he may be if the lease restricts long-term guests.  If the landlord bends the rules in this case, then they risk allegations of unfairness or discrimination if they don’t bend the rules for the next tenant. 

If a guest is planning to stay in the rental routinely, as in this case, one option for the landlord is to include the foreign resident on the lease as a tenant after they fill out a rental application and undergo a tenant background check.  Otherwise the landlord can simply agree to the long-term guest arrangement in return for the ability to screen the guest.  But if there is no way to verify the person’s identity and determine whether they pose a risk to the property or other tenants, the landlord can reject the  guest or the applicant, so long as it is not a pretext to discrimination.

This applicant is correct in assuming that he is responsible for any damage that a guest causes. However, it is far easier to avoid a bad situation in the first place through vigilant tenant screening than it is to try to argue with the tenant over the amount of damages, or pay for an eviction.  If the tenant’s guest causes damage, typically both the tenant and the guest can be evicted at once, and the guest would have no legal rights to contest the eviction.  However, local rules can vary.
 
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).

Click Here to Receive Landlord Credit Reports.

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.

{ 4 comments… read them below or add one }

Abida March 22, 2011 at 8:16 am

Your answer to his question is not clear. Can the land lord refuse to rent to this person or is he obligated to rent to him since he has good credit and no criminal back ground. Is it legal if he refuses. Please answer Yes or No.

Chris March 22, 2011 at 8:42 am

Hi Abida,
Is the landlord obligated to rent to the applicant with good credit and no criminal background: No — this applicant is being rejected because he is violating the landlord’s guest policy. The violation is due to the length of the guest’s stay, not because she is a non-citizen. However, it could be viewed as discriminatory in California to refuse to rent to a non-citizen, or to refuse to conduct a tenant background check because the applicant has no Social Security number. Here, there’s no indication that the non-citizen filled out an application to be a tenant — if she had, the California landlord would have to do the best they could to verify her identity and qualifications to be a renter. Hope that helps – thanks for reading.

Denise April 6, 2011 at 9:04 pm

I recently had a prospective tenant whose fiancee had no social security number, driver`s license,visa, green-card, or ITIN number. The fiancee made his living as a self-employed construction worker. He “possibly” had a passport.
So here I have a possible applicant who is living, driving, and working in California illegally, and of course pays no taxes.
I suggested he obtain an ITIN number, because as a policy I run credit/eviction checks on all my applicants, and it would be impossible without at least an ITIN and proof of income. Also, how do I bring legal action against some one with the barest of identification,and no hopes of ever collecting a judgment on someone operating “under the table”?
Of course the question I couldn`t ask was, “Why don`t you just marry him and make him legal?”
I believe I was in the right, but I`m sure there is a California judge somewhere out there who would disagree.

Donna Hurtt June 24, 2011 at 8:23 am

I recently tried to rent an apartment with my adult daughter who has had an eviction. I have never had an eviction and have been at my job for 15 years. Do all adults who will live in the apartment have to fill out the application or just the one responsible for the rent? The apartment manager said the application would not be approved because of my daughter’s eviction. Can they refuse to rent to me because of her history?

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