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Screening Tenants and Complying with Civil Rights Laws

A LANDLORD MAY ASK ABOUT AN APPLICANT'S ABILITY TO COMPLY WITH THE TERMS OF TENANCY AS SET FORTH IN THE LEASE AGREEEMENT.

For example, a landlord may ask about an applicant's ability to pay rent in a timely manner or an applicant's ability to respect the rights and property of others.) This informaton should be uniformly solicited from all applicants.

AS A GENERAL RULE, A LANDLORD MAY NOT INQUIRE AS TO AN APPLICANT'S DISABILITY.

  • A landlord may not ask an applicant whether he or she has a disability or whether any member of the applicant's family, or any friend or associate has a disability.
  • A landlord may not inquire about the nature or severity of any disability, nor ask any question which would require an applicant or tenant to waive the right to the confidentiality of a medical condition or medical history.
  • A landlord may not require the production of any medical records.

IN SOME CIRCUMSTANCES, A LANDLORD MAY INQUIRE AS TO AN APPLICANT'S DISABILITY.

  • If an applicant applies for a priority given to applicants with a disability or a certain type of disability, the landlord may require documentation verifying the disability or the particular disability.
  • If an applicant applies to a housing program with units designed for occupancy by persons with particular disabilities, the landlord may require documentation to verify the qualifying disability.
  • If an applicant applies to housing programs where a disability may be a prerequisite for eligibility, the landlord may require documentation to verify the qualifying disability.
  • If an applicant (or tenant) requests that a landlord provide modifications or accommodations to the applicant's (tenant's) disability, then the landlord may require documentation to verify the existence of the disability and the appropriateness of the requested accommodation.
  • If the information provided by or about any applicant at any time during the screening process reveals negative information relating to the applicant's ability to meet the obligations of tenancy, that applicant may be asked to explain this information as part of a uniformly applied policy applicable to all applicants. The applicant may be asked to explain the negative information even though to answer may involve revealing information about the existence, nature, or severity of a physical or mental disability.

A LANDLORD MAY ASK APPLICANTS THESE QUESTIONS ONLY IF THE LANDLORD ASKS THESE QUESTIONS OF EACH APPLICANT.

  • Is the applicant currently engaging in the illegal use of a controlled substance?
  • Has the applicant been convicted of the illegal manufacture or distribution of a controlled substance?

A LANDLORD SHOULD NOT ATTEMPT TO ASSESS WHETHER AN APPLICANT IS CAPABLE OF "INDEPENDENT LIVING" BUT ONLY WHETHER THE APPLICANT MEETS ESSENTIAL ELIGIBILITY REQUIREMENTS.

  • If an applicant requires supportive services but does not ask the landlord to provide them, the need for supportive services should not be considered a factor in determining eligibility.
  • If the provision of supportive services is a part of the housing program, then these services should be provided in a nondiscriminatory manner. However, no provider is required to take any action which would fundamentally alter the nature of the program in order to accommodate the disability of an applicant or tenant.
  • If a disabled applicant cannot document any rental history, the landlord should explain that he or she requires information addressing the applicant's ability to meet lease obligations. The landlord may then ask the applicant to provide alternative references and sources of relevant information. These references may come from any individual able to give an objective evaluation of the applicant's ability to pay rent on time, maintain a rental unit, and be a quiet, rule-abiding tenant. Where an applicant is recently de-institutionalized, sources of this information could include doctors, therapists and/or service agency personnel, as well as neighbors, relatives, friends or other non-medical sources. However, in making inquiries of references who are not traditional housing providers (e.g., clinicians) the prospective landlord should clearly state the limited scope of the inquiry--to determine whether the reference believes the applicant can meet the terms of tenancy. Clinicians in this context should not be asked for diagnostic information about the applicant's disability or ability to live independently.
  • Even if a landlord knows a tenant has been prescribed medication, the landlord may not require the applicant to prove or document that he or she takes the medication. (Screening should focus on behavior, not on a disability which may cause the certain behavior.) While the landlord may fear that a failure to take medication could result in some tenants threatening the health or safety of other tenants, the landlord may not impose special lease terms or eviction procedures on tenants merely because they have a history of mental illness. (Your lease agreement should oblige tenants to refrain from actions which would threaten the health or safety of other tenants; thus, manifesting behavior which threatens the health or safety of other tenants would be cause to evict a tenant whether or not the tenant has a disability.) Where an applicant with a mental disability provides objective references that demonstrate that he or she can fulfill the standard obligations of tenancy, the landlord must offer a unit under the same terms and conditions which would apply to an applicant without a disability.

Gnerally, a landlord may reject an applicant if the record shows the applicant's behavior (including any manifestations of the applicant's disability) is unacceptable. A landlord may not reject an applicant because the record shows that the applicant has a disability. For example, a landlord may not reject an applicant because the applicant is an alcoholic but may reject an applicant if the screening process reveals the applicant behaves (as evidenced by current conduct or a history of overt acts) in a way which would interfere with the rights of other tenants.

BUT A LANDLORD IS REQUIRED TO MAKE REASONABLE ACCOMMODATIONS.

For example: A landlord generally rejects all applicants with a history of late rent payments. An applicant presents medical documentation showing his history of late rent payments resulted from agoraphobia and his past landlord's insistence that rent be paid in person at a management office. The prospective landlord could make a reasonable accommodation by accepting this applicant and allowing the rent to be paid by mail.