Realtors, Avoid These Questions on Rental Applications

VOLUME VII

By Jonathan Pressman

When renters apply for housing, Realtors (and landlords) may have follow-up questions for their potential tenants. No matter how harmless they might seem, some of these questions can violate the National Association of REALTORS (NAR) Code of Ethics and even be prohibited under federal or local law. Here is a list of the questions Realtors cannot ask renters on applications.

“Where Were You Born?”

The Fair Housing Act prohibits queries about where tenants were born. Title VIII of the Civil Rights Act of 1968 lists national origin as a protected class in housing-related transactions.

“What Is Your Race?”

Race and color, like national origin, are protected under the Fair Housing Act and Title VIII of the Civil Rights Act of 1968. Florida Statutes 760.23 and the Texas Fair Housing Act also prohibit discrimination based on race, color and national origin. Realtors must also avoid steering clients toward or away from neighborhoods because of a tenant’s race. Doing so would put Realtors at risk of violations with the U.S. Department of Housing and Urban Development.

“Are You Married?”

Under the U.S. Fair Housing Act, marital status is not a protected class. In Florida, a law from 1868 banned cohabitation for unmarried couples. Because it was illegal for approximately 148 years, Realtors could ask about marital status. However, the law was repealed in a 2016 Senate Bill signed by Governor Rick Scott. Though the Texas Fair Housing Act doesn’t address marital status, the State of Texas does acknowledge common-law marriages.

“Do You Have Children?”

Shy away from marital queries for a second reason, primarily because the Fair Housing Act (FHA) (42 U.S. Code §§ 3601-3619 and 3631) protects tenants under familial status. Not only could asking about kids put Realtors at risk of being accused of not renting housing to parents, but marital status (according to the FHA) is not relevant— regardless of whether the adults are married, divorced, single, widowed or separated. Pregnant women are also entitled to protection against discrimination in housing under the familial status class.

“What Is Your Gender or Sexual Orientation?”

In February 2021, the Office of Fair Housing and Equal Opportunity (FHEO) published a press release highlighting its commitment to fully enforcing prohibitions against housing discrimination on the basis of gender identity or sexual orientation.

“Which Church Do You Attend?”

Avoid asking renters any questions about religious affiliation, beliefs or customs, as these can all constitute religious discrimination. These queries are a violation of the federal Fair Housing Act, Texas Fair Housing Act, Florida statutes and NAR Code of Ethics.

“Do You Have a Disability?”

Housing discrimination against individuals with any handicap or disability is unlawful and a violation of Article 10 of the NAR Code of Ethics. Disabilities defined by the Fair Housing Act include visual, auditory or mobility impairments; drug addiction; mental illness; alcoholism; and HIV infection and other conditions.

To avoid asking renters potentially problematic questions, Realtors should always err on the side of caution. Before inquiring about anything related to renters’ personal lives, check federal, state and local housing laws, as well as the NAR Code of Ethics.

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