Can You Refuse to Lease to a Person With a Disability?

No. The federal Fair Housing Act bars you from refusing to rent, or offering worse terms, because an applicant, a member of their household, or anyone associated with them has a disability. That includes mental illness and recovery from drug or alcohol addiction. The one narrow exception is a tenancy that would be a direct threat to other people's health or safety, or would cause substantial physical damage to others' property, and that conclusion has to rest on objective evidence about the specific person, not on their diagnosis.

Who counts as having a disability?

The Fair Housing Act calls it a handicap and defines it in three ways:

• A physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, learning, working, or caring for oneself.
• A record of such an impairment, such as a past hospitalization for depression.
• Being regarded as having one, even if the person does not, such as an applicant you assume is ill.

HUD's regulation lists conditions that count as impairments, including mobility, vision, speech, and hearing impairments, autism, epilepsy, multiple sclerosis, cancer, heart disease, diabetes, HIV, intellectual disability, emotional or mental illness, alcoholism, and drug addiction other than current illegal use. Not every diagnosis is a disability, since the condition must substantially limit a major life activity.

Two groups are not protected because of that status: people who currently use illegal drugs, and, according to HUD and the Justice Department, juvenile offenders and sex offenders. A person in recovery who no longer uses illegal drugs is protected.

Can you refuse a tenant with a mental illness?

Not because of the illness. HUD and the Justice Department say the law does not allow excluding anyone based on fear, speculation, or stereotypes about a disability. Denials based on a diagnosis, a stay in a psychiatric facility, or a current address at a treatment program are the kind of decisions that violate the law.

Their joint statement on reasonable accommodations gives an example. An applicant lists her current address as a group home for women in treatment for alcoholism. The manager rejects her because he believes people with alcoholism cause disturbances and damage property. That rejection is illegal. The manager also could not have demanded extra documents, different lease terms, or a higher security deposit from her. What he could do was check her references the same way he checks every applicant's. If those references showed she had recently threatened people or damaged property, he could then evaluate her under the direct-threat standard below.

The same rules apply after move-in. You can enforce lease terms such as a rule against threatening neighbors against a tenant with a mental illness, but must grant a requested exception if it is necessary because of the disability and reasonable. A request may be denied if it would impose an undue financial and administrative burden or change the basic nature of your rental operations. The direct-threat test applies when the concern is danger to others or substantial physical damage to their property.

What questions are off-limits?

HUD's rules make it illegal to ask whether an applicant, a future occupant, or anyone associated with them has a disability, or to ask about the nature or severity of a disability. That rules out questions such as:

• "Do you have any medical or mental health conditions?"
• "What medications do you take?"
• "Have you ever been in a psychiatric hospital or treatment program?"
• "Why do you receive disability benefits?"

You may ask these questions, as long as you ask every applicant:

1. Whether the applicant can meet the requirements of tenancy, such as paying rent on time and following the lease.
2. Whether the applicant currently uses or is addicted to illegal drugs.
3. Whether the applicant has been convicted of illegally manufacturing or distributing a controlled substance. Federal law lets you deny for that conviction, but state or local law may restrict both the inquiry and the denial. New Jersey generally requires a conditional offer before criminal-history inquiries and limits which convictions can support rejection.
4. Whether the applicant qualifies for housing reserved for people with disabilities, or for a priority available to people with disabilities.

If an applicant asks for an exception to a rule or a physical change because of a disability, you may request only the information necessary to verify what is not already apparent or known about the disability or the disability-related need. If both are apparent or known, you cannot request additional verification. That process is covered in how accommodation requests work.

When does the direct-threat exception apply?

The exception is narrow. Before denying an applicant or ending a tenancy on this basis, HUD and the Justice Department say you must make an individualized assessment based on reliable, objective evidence, such as current conduct or a recent history of overt acts. The assessment has to weigh:

1. The nature, duration, and severity of the risk of injury to others.
2. The probability that injury will actually happen, not that it might.
3. Whether a reasonable accommodation would remove the threat, such as a tenant's agreement to counseling and medication monitoring.
4. Whether treatment or medication since the incident has removed it. You may ask the person to document how their circumstances have changed and get reasonable assurances about the tenancy.

Only if the risk remains after those steps can you deny on this basis. In the joint statement's second example, a tenant with a psychiatric disability threatened a neighbor with a baseball bat. The manager had to consider an exception to the no-threats rule if the tenant's lawyer offered satisfactory assurance of counseling and medication monitoring. When the tenant refused both, the manager could proceed with eviction.

Keep a written record of the evidence you relied on and the alternatives you considered. A denial based on what an applicant's condition might lead to, rather than what the person has done, will not meet the standard.

When can you lawfully say no?

You can deny an applicant who has a disability when:

• They do not meet the income, credit, rental history, or other criteria you apply to everyone. You must first consider any requested disability-related exception and grant it if necessary and reasonable.
• They currently use illegal drugs, or have a conviction for making or selling them and state and local law permit rejection on that basis.
• The direct-threat test above is met.
• The rental is exempt from federal law: a single-family house rented by a private individual owner of no more than three such houses, without using rental services or facilities of brokers, agents, property managers, or others in the housing rental or sales business; or a unit in a building of four or fewer units where the owner lives. State or city disability laws may still cover these rentals, and the federal ban on discriminatory ads applies to them.

You cannot deny an applicant because they might later ask for an accommodation, such as an assistance animal in a building that bans pets. The joint statement treats refusing residency, or attaching conditions, for that reason as discrimination. For how pet rules interact with assistance animals, see the law on renting to pet owners.

Disability is one of seven federally protected classes, and states add others. The full list, and the screening practices that cross the line, are in what counts as unlawful discrimination in a rental application. For the lawful criteria to screen on, see the qualities that make a good tenant.