Do I Have to Accept Applicants in the Order they Applied?

Written on April 2, 2014 by , updated on November 1, 2017

applicants-in-order

The Answer:

No, but you might want to.

If your rentals are in demand and your marketing efforts are attracting many interested applicants, congratulations.

It should also cause you to proceed with care, because accepting applicants out of order, though not illegal, could give the impression of discrimination and may cause legal problems for you.

Your Right to Rent to Qualified Tenants

As a landlord, you have the freedom to choose the “most qualified applicant”, but be careful of appearances.

You are allowed to make decisions based on legitimate business reasons. You have the right to seek information about applicants to give you confidence that they’ll be good tenants and pay their rent in full and on time.

Many landlords, in fact, engage in some degree of tenant screening, which often includes, for example, inquiries into applicants’ credit and criminal history, a review of pay stubs and tax returns, and contacting prior landlords as references.

With any luck, you’ll find applicants who are interested in your rentals and meet your screening requirements.

Accepting Applicants Out of Order Can Lead to Problems

You might think that as far as a landlord’s goal of finding a qualified applicant is concerned, choosing one QUALIFIED applicant over another shouldn’t make a difference. While it’s not illegal to choose one qualified applicant over the other, regardless of the order the applications were submitted, it can lead to the appearance of discrimination.

In fact, the 2012 Fair Housing Handbook of California says on page 24 “The landlord should take the time to check out the information and make a selection based on the first qualified applicant(s).”, although there is no actual statute or law to support this. In California, like many states, it’s recommended but not law.

Choosing tenants in a non-chronological order can lead to fair housing accusations from rejected applicants. Even if you believe an accusation is groundless, the last thing you want is to have to spend time and money defending your actions and clearing your good name.

The Fair Housing Act, a federal law that applies to rental housing across the United States with few exceptions, bars discrimination based on the following seven protected classes:
Equal Housing Opportunity

  • race
  • color
  • religion
  • national origin
  • sex
  • disability
  • familial status

Many states and municipalities have their own housing discrimination laws that include additional protected classes, such as sexual orientation, age, or source of income.

Inclusion or Exclusion, it’s Still Discrimination

If a landlord finds a qualified applicant but chooses to rent to someone who’s not qualified because he prefers that person’s race or religion, for example, that’s a clear fair housing violation.

It’s also illegal if both applicants in question are qualified but a landlord chooses the one who applied later for this type of discriminatory reason. (See relevant sections of the Fair Housing Act and its regulations at 42 U.S.C. Sec. 3604(a) and (d) and 24 C.F.R. Sec. 100.50(b)(1),(3) and (5)24 C.F.R. Sec. 100.60(b)(1),(2) and (4)24 C.F.R. Sec. 100.70(d)(3)24 C.F.R. Sec. 100.80.)

It Doesn’t Have to Be Intentional

You might think that as long as you’re fair-minded and don’t intentionally discriminate, you have nothing to worry about when it comes to the order in which you accept qualified applicants.

However, many landlords unwittingly invite discrimination claims through inconsistent policies such as accepting qualified applicants in a non-chronological order.

An applicant who discovers that a landlord rejected her in favor of a later applicant might jump to the conclusion that it’s because of her religion, sex, or other protected class status and not think twice about filing a fair housing compliant against the landlord.

Consistency Is Key

Consistency is one of the best strategies a smart landlord can follow when it comes to fair housing compliance.

Being consistent means treating similarly situated people the same way, such as by processing applications in the order in which you receive them (or in another manner that’s fair and consistent, as long as you identify it in a written tenant selection plan and carefully document your adherence as you go along).

Following consistent policies helps ensure that you don’t violate fair housing laws. Plus, in the unlikely event that an applicant questions a rejection or accuses you of discrimination based on the order in which you accepted applicants for your apartments, you’ll be able to defend yourself by pointing to your history of following a fair, consistent policy.

Conclusion

If you have multiple applicants, all of whom qualify for the unit, you are allowed to choose the most qualified applicant based on income, credit, references, and other business reasons.

However, accepting applicants out of the order in which they submitted applications can lead to the appearance of discrimination based on race, color, religion, national origin, sex, disability, and familial status. It can be costly to defend a false accusation in court, and therefore you should try to accept applicants in order whenever possible.

photo credit: Mait Jüriado via cc
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19 CommentsLeave a Comment

  • lyle

    I apologize if I am posting my question in the wrong place, but I was recently turned down for a rental. I am 19, and I had put down the first application and payed the fee. A week later, the property management company informed me that they had processed several applications anf presented all of the qualified ones to the land owner. He then chose a different tenant, who applied after me, because the other tenant was older with a longer rental history. The company offered to help me find a differnt house because I had qualifed to their standards. I feel I was descriminatef against because of my age. Lastly, I live in oregon. Was this legal, or illegal? Thank you

    • Ron Leshnower

      To date, age-based discrimination in housing isn’t illegal under federal and Oregon state fair housing laws. There’s a chance, however, that your city or county includes age as a protected class. If it does, you would have to decide if you believe the property management company turned you away because of your age or because, as qualified as you were, the other prospect was even more qualified due to a longer rental history (and would have been accepted even if he were your age). You should talk to a competent attorney in Oregon for legal advice or you can contact the Fair Housing Council of Oregon to discuss your situation and see what they suggest. Here’s the contact page: http://www.fhco.org/contact.htm

  • carto

    What method do other landlords use to track leads, applicants and qualified applicants? Is there a template for usual tools like spreadsheets or contact apps? Seems having all pertinent info in one format would help a coherent process take shape.

    • Kelly

      I used askminka.com to help me rent out my townhouse. I wish it was better integrated with Zillow, but it took care of tracking all of my leads and appointments in one place. Plus it was free for me.

  • Kevin

    Taking this topic one step further (possibly into the realm of overly paranoid). I’m purchasing a home to use as an investment rental. I haven’t close on the property so I’m not accepting applications at this time. I am, however, listing the property on the normal for-rent sites as “coming available soon” and building a list of interested parties. Do I need to be cautious about respecting the order in which I was contacted by these potential applicants?

    • Lucas Hall

      Hi Kevin

      Generally speaking, “order” isn’t really a factor until a person submits a completed application. Until then, they can’t even be considered to have applied.

  • DJ

    We have a popular rental. Currently, we have it advertised with an ‘open house’ date 3 weeks away and have been receiving applications from prospective tenants. We have decided to move up our open house to next week and after people have seen it, to then review all the applications. Do we still need to essentially take the first applicant (or can we consider all applications as ‘received at the same time’ because we are not reviewing until after the open house)? And, in the future, can we post our plan to review applications at a specified time so that we may legally consider all applications as received at the same time? (Thus allowing us to pick from among them?)

    • Harry

      There’s a date on the rental application. And you have received the rental application. There’s no doubt that you have to look at the date received when making decision. A mouse can close eyes and think the Cat is gone, but is it really gone?

      • Matt

        On the contrair, date received applications means nothing. As a slumlord, you can legally rent to the most qualified candidate. No law states you have to rent to the first qualified person. Just make sure to follow fair housing act and not to discriminate.

  • Brian

    My girlfriend recently went to look at a house that was for rent. They had it listed on the internet on a popular site and we emailed them and got a response back that they would be at the property the next day at a specified time.we arrived on time, paid a few for a background and credit check and the rental application. I have a small service dog for a disability and they posted no pets. We had the dog with us and they indicated they would consider an exception. A wwek plus later they are still taking applications and fees and when I asked about the rental they responded that they are still taking applications. Can they keep raking in fees and not tell us yes or no?I feel that if a check was made we need to know the results.

  • Cindy

    I have two applicants for same condo.
    Applicant 1 (in order of submittal) will need a co-signer.
    Applicant 2 (in order of submittal) will not.
    Can I legally and/or ethically choose Applicant 2 becduse they meet income criteria without co-signer?

  • Tom T

    I have a 692 credit score. My Friend and his wife have a 558 and 514 respectively. The apartment for rent is $2200 a month and our income is approximately $15k a month. Today we received word that the landlord denied our application due to credit.

    • Kayla

      Yes, he can deny you. Since all 3 of you are responsible for paying the rent and two of the three have low credit scores they can be considered a credit risk. Therefore the landlord has the right to deny you. I think you need to reconsider your roommates, if possible? Their credit scores could potentially ruin your chances of finding a decent place to rent.
      Sorry. I wish you luck.

    • Kayla

      Yes, he can deny you. Since all 3 of you are responsible for paying the rent and two of the three have poor credit scores they would be considered a credit risk. A landlord is not obligated to rent to anyone who is a credit risk.

      I think you need to reconsider your roommates, if possible? Their credit scores could potentially ruin your chances of finding a decent place to rent.

      Sorry. I wish you luck.

  • Sam

    Does anyone know if there is a legal amount of time a landlord has to respond to an application? I put in an application 2 weeks ago, when I spoke with the manager she said everything looks great on my screening but I have an emotional support animal so they do not know if they will accept me because of that.

  • Alexus Torres

    Hello, I recently applied for an apartment but was not told I signed the lease till after I had completed the forms online they company said I needed a co-signer in order to qualify and I do not have one nor do I meet the income qualifications. The company is now saying that I am bound to the lease even though I do not meet the qualifications. Is this legal? No payment transactions have been made. The company will not let me speak to the manger I have went in, called, and emailed and have not had a reply. It is now been about five months.

  • Corinna

    I applied for a townhouse my report came back glowing and the landlord says in her text she really likes me but she has 1 more showing but texts me and tells me i am in the running . what does that mean?

  • Nicole Pearson

    Hello!

    I have an attached studio to my home. I live in California. My process is that I hold a minimum of 1 open house during the open application period, allow applications to come in until my predetermined close date that I freely share, run the tenant screening reports and pick the best application based on the tenant screening report results, income ratio and references. Based on the information you have provided, you would be considered a qualified applicant; however, I do look at my total qualified applicant pool at the close of the open application period to pull the top qualified applicant to move forward with.

    Is this ok?

    Thanks!

  • Marie

    My daughter in law qualifies for a rental house. She meets all the qualifications. How can she prove she is being discriminated against for her race? The realtor keeps delaying the approval but she is realtor ready.

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