Investing Basics

Fair Housing Laws: What You Legally Can and Can't Ask Prospective Tenants

Fair Housing Laws: What You Legally Can and Can't Ask Prospective Tenants

With an estimated 1.6 billion people lacking adequate housing worldwide, many developed countries are participating in a movement to treat housing as a fundamental human right. Some argue that housing is a human right because fair housing encompasses a right to peace, security and dignity.

Table of Contents - Fair Housing Laws: What You Legally Can and Can't Ask Prospective Tenants

Canada is a signatory to the 1966 International Covenant on Economic, Social and Cultural Rights. A multilateral United Nations treaty that recognizes the right to an adequate standard of living and specifically the right to housing. More recently, the Liberal Party has declared its intention to make housing a human right under Canadian law. Prime Minister Justin Trudeau said in December 2017, “Housing rights are human rights and everyone deserves a safe and affordable place to call home.”

The plan to improve housing in Canada does not mean constructing thousands of new units to accommodate everyone; rather, the government would become more involved in prohibiting discrimination, fighting homelessness and evaluating rent prices.

What does this mean for you as a landlord? When renting a unit, you must treat all applicants equally and with respect. This also applies when establishing occupancy rules, prioritizing repairs, the use of shared facilities and evicting tenants. Most importantly, you are responsible for making sure the housing you operate is a discrimination- and harassment-free environment.

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What can and cannot inform your tenant decision

As a landlord, you want to thoroughly vet any prospective tenant to ensure he or she will pay rent on time and respect your property. In your vetting process, there are certain things you cannot ask your applicant and which cannot inform your decision to rent. People cannot be refused housing based on any of the following traits:

  • Race, colour or ethnic background
  • Religious beliefs or practices
  • Ancestry, including Aboriginal descent
  • Place of origin
  • Citizenship
  • Sex, including pregnancy and gender identity
  • Family status
  • Marital status, including people with same-sex partners
  • Disability
  • Sexual orientation
  • Age, including people aged 16 or 17 no longer living with their parents
  • Receipt of public assistance
  • Being a friend or relative of someone with any of the above traits

What you need to know is whether the prospective tenant is a responsible fit for your home. This information is acceptable to request when interviewing a tenant:

Rental history

A lack of rental history is not grounds to deny the application. Red flags include previous evictions or any previous or pending legal matters regarding property rental. If a tenant has recently been evicted or has been sued for property damage, it’s acceptable to pass them over.

Credit references and/or credit checks

Again, a lack of credit history should not be viewed negatively. Late or missed payments, defaults on debts and loans, or a recent bankruptcy are acceptable disqualifiers.

Income information

You may only request income information if you also request rental history and credit references and/or checks. You can factor income information on its own only if you requested the other information but the applicant did not provide it. Income information is only used to determine whether the applicant can afford rent. You may not enforce a rent-to-income ratio unless you are providing subsidized housing.

Guarantors

You can ask for a guarantor to sign the lease, but only if you have the same requirements for all tenants. Depending on the type of housing you’re renting or your target demographic (like students), it might be good practice to require a guarantor for all leases.

Accommodating tenants

Legally, you must meet any special accommodations tenants require. For example, if a tenant uses a wheelchair, you might need to make changes to an entryway, parking or sidewalks. You must work to accommodate any needs up to the point of undue hardship, such as cost, lack of outside funding or health and safety concerns.

The landlord needs to put in the best accommodation as soon as possible. If the best accommodation cannot be made promptly, another solution must be provided in the meantime.

Accommodations also include managing social situations to make tenants more comfortable. For example, if a tenant disrupts neighbours related to his or her status in a protected group (e.g. a tenant who wakes up to pray early, or a tenant whose medical equipment is disruptive), you should see what you could do as the landlord to improve the situation.

If a tenant shares information about his or her status as a member of a protected group, like medical history, you should not disclose this information to others, especially other tenants. It is your responsibility to create a safe environment for all—that starts by respecting the privacy of your tenants.

Ongoing tenant relationships

Just because a tenant is a member of a protected group doesn’t mean you do not have to hold him or her to a different standard than other tenants. If there is a genuine personality conflict with the tenant over an unrelated issue, you do not need to rent or continue to rent to that person. If the tenant fails to pay rent, you may evict so long as the tenant had the same opportunities to remedy the situation as everyone else.

Proactive measures you can take

You can help to improve human rights in housing and avoid issues at your property with a few preemptive measures:

  • Create an anti-discrimination and anti-harassment policy for your property (and business)
  • Reviewing your property for any barriers to comfortable living and adding fixes to your maintenance plan
  • Design a policy for responding to accommodation requests
  • Design a policy for resolving disputes
  • Participate in, develop and share educational materials on human rights and housing

It’s important to understand your legal obligations as a landlord to provide fair and equal housing to tenants. Each province has its human rights commission and its laws regarding discrimination in housing. The recommendations above come from the Ontario Human Rights Commission and are a good basis for developing your approach to navigating fair housing laws for your rental property.

Tenant Screening Questions to Ask Before You Show Your Home


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