Fair Housing Considerations in Tenant Screening

April 22, 2022

- By The MAR Legal Team

Fair Housing Considerations in Tenant Screening Housing providers often implement procedures in which prospective tenants are screened to determine whether to lease a particular property to that individual. While it is important to assess a prospective tenant to ensure that they will meet the obligations under the lease agreement, improper or unfair screening procedures can open you up to potential Fair Housing violations.

Rental Vouchers

A major area of concern that has been receiving a significant amount of attention1 over the last couple of years is discrimination against prospective tenants who receiving housing assistance, such as Section 8. In 2020 the Office of the Attorney General entered into settlement agreements totaling $110,000 with four different real estate brokerages for discrimination against low-income tenants who were the recipients of housing vouchers.2 Additionally, just this month, the Office of the Attorney General resolved four additional cases, in which prospective tenants were refused housing from real estate brokers and agencies based on their receipt of public assistance.3 Housing providers and real estate licensees in Massachusetts must not treat individuals differently simply because they receive a rental voucher. This means that that housing providers and their agents may not:

– Refuse to rent to an individual with a voucher;

– Refuse to negotiate with a voucher holder;

– Set different terms or conditions of rental for a voucher holder; ‘

– Refuse to comply with the requirements of the voucher program, such as paperwork and inspections;

– Request that voucher holders receive “pre-approval” from the local housing authority before accepting the application;

– Advertise that vouchers are not accepted or are discouraged; or

– Apply qualification criteria, such as employment-based income requirements, that would exclude voucher holders.

Familial Status

Another area of concern is housing discrimination based upon familial status, which occurs when housing providers screen out prospective tenants with children. It may be couched in subtle terms, such as limiting the number of occupants permitted in a unit, but unless the limitation is based upon the State Sanitary Code4 , it is likely a violation of Fair Housing. Furthermore, a housing provider may not refuse to rent to a family with young children because the property is not lead safe. Nor can this obligation be obfuscated simply by not having the property tested. A housing provider must be prepared and willing to rent to families with young children that are otherwise qualified. Housing providers also may not refuse to rent to families with children out of concern for noise disturbances to other tenants. These rationales are regularly used as pretext for screening tenants with children and open the housing provider and their agent to a Fair Housing complaint and violation.

Assistance Animals

Many rental properties have restrictions on pets either by entirely prohibiting pets or having breed or size restrictions in place. It is important to note that assistance animals, which includes both service animals and emotional support animals, are not pets and such policies do not apply to those animals. As of 2020, 60% of all Fair Housing Complaints were related to requests for a reasonable accommodation for an assistance animal. A housing provider must engage in an interactive process with a tenant or prospective tenant with an assistance animal to determine whether a reasonable accommodation is required.5 A housing provider may never request access to or copies of an individual’s medical records, nor should they ask what the individual’s disability is. The person seeking the accommodation may be asked to provide information that reasonably supports that they do have a disability and that the animal provides support or assistance with regard to that disability. The law does not require any specific training or certification for an animal to qualify as a support animal. A housing provider may also request to meet with the prospective tenant and the animal to individually assess whether the animal would pose a direct threat to the health or safety of other tenants or cause substantial damage to the property. A housing provider may require that the animal be appropriately restrained (i.e., on a leash), cleaned up after, and vaccinated/licensed as required by law. A housing provider may not deny such a request based on the animal’s breed or size or charge additional fees to the tenant.

Criminal Background

Historically, some housing providers have screened tenants based upon any criminal history they may have had, including both arrests and convictions. The Fair Housing Act may be violated when a housing provider has a policy or practice that has an unjustified discriminatory effect, even if there is no intent to discriminate.6 A policy to deny prospective tenants with any criminal record, while seemingly neutral on its face, may have a disparate impact on groups of individuals of certain races and /or national origins. A housing provider must be able to demonstrate that such a policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest, such as protecting the safety and property of other tenants. Such policies must be narrowly tailored and should take into consideration the nature, severity, and recency of a criminal conviction. A policy that includes screening based upon arrests is unlikely to withstand a challenge.


The Fair Housing Act and the Massachusetts Fair Housing Laws protect individuals against discrimination in housing based on race, color, national origin, gender, gender identity, sexual orientation, disability, ancestry, genetic information, marital status, veteran or active military status, age, familial status, and source of income. Housing providers and their agents must ensure that the processes undertaken to screen potential tenants serve a legitimate purpose and do not discriminate against individuals based upon a protected characteristic. Any screening criterion must be equally applied to all prospective tenants and not result in a disparate impact on a protected group. 5 Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act 6 Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions


1. Qualified Renters Need Not Apply

2. https://www.mass.gov/news/investigation-by-ags-office-reveals-widespread-housing-discrimination-by-south-shore-real-estate-brokers

3. https://www.mass.gov/news/in-recognition-of-fair-housing-month-ag-healey-announces-resolutions-in-four-housing-discrimination-cases

4. The State Sanitary Code Section 410.400 requires 150 sq. feet for the first occupant and at least 100 sq. feet per each additional occupant. Rooms occupied for sleeping purposes must have 70 sq. feet for one occupant, or at least 50 sq. feet per occupant if used by more than one individual.

5. Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act

6. Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions