Can Landlords Discriminate Against Criminal Tenants?

Most people recoil at the idea of discriminating against people and probably just as many presume that existing laws prohibit discrimination. What many do not realize is that the laws against discrimination, for the most part, only cover those in so-called “protected classes.” The typical protected classes are, as one may expect, based on race, gender, national origin, religion, age (over 40), and disability. Needless to say, it is unlawful for a landlord to discriminate against prospective tenants on the basis of any of these. Aside from these protected classes, can a landlord discriminate in choosing his or her tenants on the basis of other reasons?

Obviously, a landlord generally wants to create a safe environment for his or her tenants and the others who live in the vicinity of the landlord’s property. Although seemingly responsible, may a landlord attempt to achieve the goal of safety by discriminating against potential tenants on the basis of their criminal records? As criminals or former criminals are not among those within the protected classes described above, discrimination against people with criminal records is legal.

Of course, if a landlord elects to establish checking potential tenants’ criminal backgrounds as part of his or her vetting process, he or she must do so for all applicants. In other words, the landlord cannot check the criminal backgrounds of black applicants while opting not to check the criminal backgrounds of white applicants.

Finally, it should be noted that the Department of Housing and Urban Development has established a new rule regarding policies that have disparate discriminatory effect on a protected class. A landlord will be in violation of the Fair Housing Act if he or she enacts a policy that has a disparate discriminatory impact on a protected class, even if that policy is seemingly lawful on its face. For example, if a landlord enacted a policy that prohibited all tenants from covering their faces when entering the building, it might be considered a violation of the Fair Housing Act because it had a disparate discriminatory effect on Muslims.

In sum, landlords, at this point, may legally use criminal backgrounds to exclude applicants as part of their vetting process when choosing from potential tenants as long as they apply the same standards to all of their applicants, as discrimination against former criminals is not yet an unlawful form of discrimination.

Originally published in The Legal Intelligencer Blog on December 2, 2013 and can be found here.

Get ‘Em Out By Friday

Back in the early 1970’s, when the band Genesis, a progressive/art rock band at the time, still had musical credibility, they released one of their more theatrical songs called “Get ‘Em Out By Friday” on their classic album Foxtrot. It is one of my favorite albums, and every time I hear the song, with many of the lyrics being dialogue between landlord and tenants, it quickly brings to mind my own landlord-tenant cases. In the song, despite the desperate pleas of the pathetic tenants to stay – even offering to pay double the rent – Peter Gabriel, playing the role of the landlord, bellows “Get ‘em out by Friday!”

Many of my tenant-clients are struck by what they think is an inherent injustice in landlord/tenant law in 2 ways. First, tenant-clients obviously view their possession of a rented space with a certain amount of ownership interest. Even if they don’t own their place, it is still their home. Further, they also believe that being a “good tenant” (i.e.: remaining current on rent and taking care of the property) should be rewarded with a certain amount of loyalty to them from the landlord. Unfortunately for tenants, neither of these is the case. Landlords have no obligation to reward and/or have loyalty for and/or give allowances to tenants who are so-called “good tenants.” As long as the terms of the lease are met, a landlord can request a tenant to vacate at any time at his own discretion. Additionally, regardless of whether the tenant pays rent timely and consistently, if the lease is a month-to-month lease, the landlord can request the tenant to vacate the premises within 30 days at the landlord’s discretion, or even less if the lease so permits.

Second, there are times where a landlord can be terrible, whether that means he is slow to maintain the property, has license and inspections violations, or is generally non-responsive. Unfortunately for tenants, however, if the outstanding maintenance (and/or other) issues are cleared up and/or not raised by the tenant in court, the landlord again can request the tenant to vacate the property at any time (presuming he is in compliance with the terms of the lease). Indeed, many tenants believe an eviction action against them is often a form of retaliation for, say, reporting the landlord to Philadelphia Licenses and Inspections. They may be right, but unfortunately, contrary to popular belief, a tenant of a less-than-good landlord does not acquire additional rights, defenses, and/or some sort of immunity from eviction. As long as there is compliance with the lease and the law, a landlord can pursue the eviction of a tenant at any time even when the landlord’s performance has historically been rather poor.

When counseling tenant-clients, it is important to impress upon them that landlords can pursue them at any time – within the bounds of the lease – regardless of how good of a tenant they are and how poor of a landlord they have. It is important to advise tenants to always be prepared for a landlord to request them to vacate the premises. More importantly, it is important to advise tenants that while they may win the initial battles against landlords for various maintenance and/or licenses and inspections issues, as soon as they are resolved, they should be prepared for an eviction action against them that will likely be successful. So, despite being a good tenant or being subjected to a bad landlord, at some point a landlord can – and likely will – loudly and successfully bellow “get ‘em out by Friday!”

Originally published in The Legal Intelligencer Blog on November 21, 2012 and can be found here.