Fair Housing Act — What Landlords Cannot Ask

If you're screening tenants and want to stay out of a discrimination lawsuit, the honest answer is: the Fair Housing Act protects seven federal categories (plus more added by many states), and questions that seem innocent can trip a violation. The safe rule is "ask only about ability to fulfill the lease" — income, rental history, credit, references. Everything else is a landmine.

Okoniq Property Hub stores your standard application form + criteria so every applicant gets identical treatment (the #1 protection against discrimination claims).

What are the federal protected classes?

Under the Fair Housing Act (FHA), you cannot base rental decisions on:

• Race
• Color
• National origin
• Religion
• Sex (including gender identity and sexual orientation under HUD guidance)
• Familial status (having children under 18, being pregnant, or planning to have children)
• Disability (physical or mental)

Discrimination includes:

• Refusing to rent
• Steering ("this area is better for families like yours")
• Setting different terms/conditions
• Advertising in ways that indicate preferences
• Refusing to make reasonable accommodations

Full guidance at HUD.gov Fair Housing.

What state protections often add?

Many states and cities add categories:

• Source of income (Section 8 vouchers, disability, alimony) — California, NY, MA, IL, WA, OR, others
• Age (beyond federal senior housing rules)
• Marital status
• Military status or veteran status
• Ancestry
• Criminal history (Ban the Box laws) — increasing number of jurisdictions
• Immigration status

Check your specific state and city — some (New York City, Seattle, Berkeley) add more than a dozen protected categories.

What questions ARE legal?

Application questions that focus on ability to fulfill the lease:

• Full name, contact info
• Current and previous addresses (rental history)
• Employment and income
• References (personal and professional)
• Credit and background check with written consent
• Reason for moving
• Number of occupants (for occupancy limits, not familial status)
• Whether they have pets (not service animals)
• Move-in date preferred
• Emergency contact

See what can landlords legally ask on a rental application? for the fuller list.

What questions are ILLEGAL?

Even seemingly friendly:

• "Are you married?" — implies preference on marital or familial status
• "Where are you from originally?" — implies national origin bias
• "Do you plan to have children?" — familial status
• "What's your religion?" — religion
• "Are you a US citizen?" — national origin (in many states)
• "Do you have a disability?" — disability (unless directly related to a reasonable accommodation request)
• "What's your first language?" — national origin
• "Do you speak English?" — national origin (unless job-related for a service unit)

Reasonable accommodations and service animals

The FHA requires you to make reasonable accommodations for tenants with disabilities — including exceptions to no-pets policies for service animals and emotional support animals (ESAs).

You can require documentation:

• Service animals: no documentation required beyond confirming it performs work for a disability
• ESAs: documentation from a licensed healthcare provider stating the ESA is medically necessary

You cannot charge pet fees or deposits for either. You CAN charge for actual damage caused by the animal.

Apply the same criteria to everyone

The strongest protection against a discrimination claim isn't watching your language — it's applying identical criteria to every applicant. Write down your criteria (2.5x income, no evictions in 3 years, 620+ credit), and apply them the same way every time. Okoniq Property Hub stores your criteria + every applicant's disposition so a Fair Housing complaint years later can be defended with paper records. Related: what landlords can legally ask on a rental application?, how to screen a tenant without a screening service, and the Renting & Tenants hub.

Frequently asked questions

Can I ask about criminal history?

Yes, but 2016 HUD guidance warns against blanket "no felonies ever" policies as having disparate racial impact. Individualized review (nature of offense, time since, rehabilitation) is safer. Some states/cities restrict when in the process you can ask.

What about occupancy limits?

You can set reasonable occupancy limits (HUD accepts 2 people per bedroom as safe). But limits must apply equally regardless of who the occupants are — 3 kids can't be excluded from a 2-bedroom that 3 adult roommates could use.

Can I refuse Section 8?

Federally, yes. State-by-state, many jurisdictions prohibit "source of income" discrimination — check yours. If it applies, you must consider Section 8 applicants under identical criteria as market applicants.

This is general information, not legal advice. Fair Housing law is federal + state + local — consult a landlord-tenant attorney in your jurisdiction. Okoniq Property Hub keeps application records defensible. Get started free.