LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers
Q. I got a call from someone who wanted to rent my unit but he said he had just gotten out of prison. Do I have to rent to him?
A. You might not end up renting to him, but you do have to treat him as you would any other prospective tenant. Ask him non-discriminatory questions, show him the unit, have him fill out an application, run a credit report and make your decision based on your existing rental criteria.
As you know, you cannot discriminate against anyone based on certain protected classes, specifically race, sex, color, religion, familial status, national origin, and disability (physical and mental). Hawaii includes age, marital status, ancestry, HIV infection, gender identification or expression, and sexual orientation. Mostpeople are pretty good about this and try not to discriminate based on these protected classes. However, housing discrimination does not need to be intentional in order to be illegal.
Refusing to rent to someone just because they just got out of prison could subject you to a discrimination lawsuit based on disparate impact. Disparate impact is a theory that comes from statistics that certain ethnicities are over-represented in certain situations. There may be more of a certain minority in prison or without high school diplomas, for instance. By denying all prisoners from renting from you, you may be discriminating against someone in that minority.
Do not make a generalization about everyone with a criminal record. If someone had a conviction for a violent crime a year ago, you may not want that person living in your multi-unit apartment building. But, your policy should take into account that, even though you want to protect others from a violent or unruly tenant, you want to make sure that you are not unduly penalizing someone for a past transgression that has no bearing on their ability to be a good tenant now.
You should have rental criteria in place. Your rental policy should not result in an unjustified, disproportionate negative impact on a protected class compared to non-members of a protected class. Your criteria should have a justified effect that is not discriminatory. It should also be pertinent to your rental business. You want to make sure that the tenants are able to afford the rent, so you need a policy about income. State that the tenants collectively should make “x” times the rental amount. You want to make sure they have a job that is stable or a co-signer or guarantor. If the person just came out of prison, does he have a job to go back to or is he getting assistance from someone?
Despite your best efforts, you can get tripped up when trying to advertise and avoid discrimination. There are words or phrases that you should avoid in your ads and dealing with tenants. If you had a studio apartment, you could not state in your ad that it would be perfect for a single adult or a couple. That would seem to be discriminating against children. Don’t use words/phrases such as “executive”, “exclusive”, “professional”, “able-bodied”, “not handicapped accessible”, “near a church”, “perfect for runners/ joggers”, etc. Also be careful of what is shown in your pictures – e.g., only one ethnic group lounging around the pool. Do not advertise in only one publication which is limited to a specific geographic area and targets only a certain segment of the community.
Check with your attorney if you have any questions about your rental criteria and policy. Your policy should not be based on stereotypes or generalizations or require more than is reasonable to enable you to find the best tenant possible.