What Screening Criteria Can Landlords Legally Use?

Screening prospective tenants is one of the most critical steps in the leasing process. For New York landlords, having clear, legal, and consistent screening criteria can help minimize the risk of missed rent payments, damage to property, and costly evictions. 

However, landlord screening must comply with both federal and state laws, including local ordinances—especially in cities like New York City. At Rossi & DeMarco, PLLC in Tonawanda, New York, we have experience with these tenant issues.

Using unlawful or discriminatory screening practices can expose landlords to legal action, including fines, lawsuits, and regulatory penalties. Here, we’ll provide an overview of the legal screening criteria landlords in New York can use, what’s off-limits, and how to assure a compliant and fair rental application process.

Federal, State, and Local Laws

Before diving into specific screening criteria, landlords must understand the laws governing rental practices in New York:

Federal Fair Housing Act (FHA)

The FHA prohibits discrimination based on:

• Race

• Color

• National origin

• Religion

• Sex (including gender identity and sexual orientation)

• Familial status

• Disability

New York State Human Rights Law

New York adds further protections, prohibiting housing discrimination based on:

• Age

• Marital status

• Sexual orientation

• Gender identity or expression

• Lawful occupation

• Source of income (including public assistance, Section 8 vouchers, Social Security, etc.)

New York City Human Rights Law

For landlords in NYC, the Human Rights Law is even broader. It includes all the categories above and makes discrimination based on lawful source of income a serious violation.

Legally Permissible Screening Criteria for Landlords in New York

Now that we understand the legal boundaries, here’s what landlords can consider when screening tenants, as long as they apply these standards uniformly and without discrimination.

Credit History

Landlords are allowed to run credit checks to evaluate a tenant’s history of managing debt and paying bills on time. However, some municipalities—including New York City—have restricted how this can be used.

The NYC Human Rights Law includes provisions under the Fair Chance for Housing Act (effective 2023) that prohibit most landlords from conducting criminal background checks, but credit checks are still allowed for most non-rent-stabilized units, with some exceptions, according to The Fortune Society.

Best practices include the following:

• Disclose in advance that you’ll run a credit check.

• Apply the same minimum credit score threshold to all applicants.

• Allow tenants to provide a copy of their own credit report, if they choose.

Income and Employment Verification

It’s legal to verify that a tenant has enough income to afford the rent. The most common method is to require a gross monthly income of at least 2.5 to 3 times the rent.

Landlords may ask for:

• Pay stubs

• Employment letters

• Tax returns or W-2s

• Bank statements

• Offer letters for new employment

In New York, it’s illegal to discriminate based on the source of lawful income. This means landlords must accept rental subsidies like Section 8, HASA, or CityFHEPS as valid income.

Rental History and References

You may contact previous landlords to evaluate:

• Timeliness of rent payments

• Complaints or lease violations

• Cleanliness or property damage

• Cooperation with building rules

Best practices are as follows::

• Use a standard set of questions for all references.

• Document responses for your records.

• Avoid asking about personal characteristics that could lead to discrimination claims.

Occupancy Limits

Landlords can set reasonable occupancy limits based on the size of the unit. A common standard is two persons per bedroom, though this is not a fixed legal rule.

Under the Housing Maintenance Code, overcrowding can violate safety and health standards, so it’s legal—and often necessary—for landlords to limit the number of occupants based on square footage and layout.

Pets

Further, landlords can generally choose whether or not to allow pets, except in certain circumstances involving service animals or emotional support animals (ESAs). Under the Fair Housing Act, a landlord can’t reject or evict a tenant for having a service animal or ESA, even if there is a “no pets” policy.

Landlords can do the following:

• Ask for documentation verifying the need for the ESA (but not detailed medical records).

• Require reasonable rules for pet behavior.

• Charge for damage caused by the animal—but not a pet deposit for service animals or ESAs.

Screening Criteria That Are Prohibited

Now that we’ve covered what’s allowed, it’s equally important to understand what landlords can’t use when evaluating tenants.

Discrimination Based on Protected Classes

As mentioned earlier, landlords in New York can’t reject tenants based on:

• Race or ethnicity

• Religion

• Gender or gender identity

• Sexual orientation

• Disability

• Marital or familial status (e.g., being pregnant or having children)

• Source of income

• Citizenship status (in most cases)

This includes using coded language or targeted advertising such as:

• “Ideal for single professionals”

• “No children allowed”

• “English-speaking only”

These can result in fair housing violations.

Criminal History (in NYC)

As of 2023, NYC’s Fair Chance for Housing Act prohibits most landlords from asking about or considering an applicant’s criminal record when renting residential property.

Exceptions include the following:

• Rentals in two-family homes where the landlord occupies one unit

• Rooms within the landlord’s primary residence

For properties outside of NYC, landlords may still use criminal history in limited circumstances, but must evaluate:

• The nature and seriousness of the offense

• The time that has passed

• Whether the offense is relevant to the safety of other tenants or the property

Arbitrary or Inconsistent Criteria

Even if the criteria seem neutral, applying them inconsistently can still lead to a claim of discrimination. For example, if a landlord applies a strict credit score cutoff for applicants of one race but not another, this is illegal under both federal and state law.

Landlords should establish a written tenant screening policy and follow it for every applicant.

Tips for Compliant Tenant Screening in New York

To protect yourself from liability and assure a fair, lawful screening process:

Use a Standardized Rental Application

Ask the same questions of all applicants and include a disclosure that you may run a credit and background check.

Provide Written Criteria in Advance

Let applicants know what you’re looking for in terms of income, credit score, rental history, etc. This promotes transparency and reduces misunderstandings.

Avoid Blanket Policies

Avoid automatic rejections like “no one with an eviction ever” or “must earn four times the rent,” which may disproportionately affect protected groups.

Document Every Step

Maintain records of applications, communications, and reasons for approval or denial in case of a future dispute or complaint.

Be Cautious with Tenant Screening Services

If you use a third-party tenant screening company, make sure they comply with the Fair Credit Reporting Act (FCRA) and all local fair housing laws.

What to Do If You're Accused of Discrimination

A tenant who believes they were rejected based on illegal criteria can file a complaint with:

• The New York State Division of Human Rights (DHR)

• The U.S. Department of Housing and Urban Development (HUD)

• The New York City Commission on Human Rights (for NYC cases)

If you’re a landlord facing such a claim, consult with an experienced landlord-tenant attorney immediately to protect your rights and assess your exposure.

Contact Rossi & DeMarco, PLLC

By understanding legalities and establishing a consistent screening process, landlords can make informed leasing decisions while staying compliant with fair housing laws. If you're unsure whether your screening practices are legal, consult with a knowledgeable landlord-tenant attorney to help you work through this complicated area of the law. We serve clients in Tonawanda, New York; Amherst, New York; Wheatfield, New York; Erie County; and Niagara County. Reach out to our firm today to get started.