What Is a Landlord Allowed to Ask a Prospective Tenant Who Is Applying to Rent An Apartment?

A Landlord May Ask a Prospective Tenant For Rental History Details and Credit References As Well As Performing a Credit Check With Equifax or TransUnion When Authorized By the Applicant. A Landlord Must Avoid Discriminatory Questions and Decisions.

What May Constitute As Human Rights Code Violations When Advertising For, and Screening Out, Tenant Applications

Residential Lease Document The business of a landlord is indeed treated as a genuine business; and accordingly, whereas a home is generally viewed as a vital service, significant protections are put into place to regulate and govern the residential rental industry so as to provide various prescribed duties, obligations, and responsibilities, applicable to both the landlord and the tenant.  In addition to governance of the tenancy relationship, various protections also apply to concerns prior to, and leading to, a landlord and tenant relationship.

The Law

As a Regulation to the Human Rights Code, R.S.O. 1990, c. H.19, the Business Practices Permissible to Landlords in Selecting Prospective Tenants for Residential Accommodation, O. Reg. 290/98, prescribes various practices in which a landlord may engage when reviewing tenancy applications.  In full, the Regulation states:

1. (1) A landlord may request credit references and rental history information, or either of them, from a prospective tenant and may request from a prospective tenant authorization to conduct credit checks on the prospective tenant.

(2) A landlord may consider credit references, rental history information and credit checks obtained pursuant to requests under subsection (1), alone or in any combination, in order to assess the prospective tenant and the landlord may select or refuse the prospective tenant accordingly.

(3) A landlord may request income information from a prospective tenant only if the landlord also requests information listed in subsection (1).

(4) A landlord may consider income information about a prospective tenant in order to assess the prospective tenant and the landlord may select or refuse the prospective tenant accordingly only if the landlord considers the income information together with all the other information that was obtained by the landlord pursuant to requests under subsection (1).

(5) If, after requesting the information listed in subsections (1) and (3), a landlord only obtains income information about a prospective tenant, the landlord may consider the income information alone in order to assess the prospective tenant and the landlord may select or refuse the prospective tenant accordingly.

2. (1) A landlord may require a prospective tenant to obtain a guarantee for the rent.

(2) A landlord may require a prospective tenant to pay a security deposit in accordance with sections 105 and 106 of the Residential Tenancies Act, 2006.

3. In selecting a prospective tenant, a landlord of a rental unit described in paragraph 1, 2, 3 or 4 of subsection 7 (1) or subsection 8 (1) of the Residential Tenancies Act, 2006 may request and use income information about a prospective tenant in order to determine a prospective tenant’s eligibility for rent in an amount geared-to-income and, when requesting and using the income information for that purpose only, the landlord is not bound by subsections 1 (3) and (4).

4. Nothing in this Regulation authorizes a landlord to refuse accommodation to any person because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

5. Omitted (provides for coming into force of provisions of this Regulation).

Permitted Inquiries

In accordance to O. Reg. 290/98, as a Regulation to the Human Rights Code, the business practices available to a landlord when selecting tenants include various confirmations of financial capacity and dependability including review and investigation of past rental history, reference checks, as well as requesting authorization to perform credit checks via Equifax or TransUnion.  The right to review, investigate, and consider, these details as qualifiers for tenancy applicants is provided per section 1(1) of the Regulation; and accordingly, a landlord may make inquiry for deeper information related to any of these concerns such as performing reference checks such as contacting a prior landlord for information regarding any concerns relating to timely rent payment, damage issues, among other things.  Interestingly, per section 1(3) of the Regulation, a landlord may only request income information if the landlord also makes inquiry into the criteria listed in section 1(1), being credit references, rental history, and credit checks, or any of the three; and accordingly, it is unlawful for a landlord to inquire solely of income details.  The requirement that a landlord make inquiry of rental history or credit reference in addition to income inquiry, rather than solely making income inquiry is stated in the case of Kurti v. 2730979 Canada Inc., 2017 HRTO 1181 where it was said:

[128]  The respondent has provided a credible, non-discriminatory explanation for its denial of the applicant’s rental application. O. Reg. 290/98 under the Code permits a landlord to request and consider credit references, credit checks and rental history information in order to assess a prospective tenant: see s. 1(1) and (2). Further, this regulation permits a landlord who has requested the foregoing information also to request and consider income information in order to assess a prospective tenant, as long as such income information is considered together with all of the other information provided by the prospective tenant: see s. 1(3) and (4).

Requiring a Guarantor

Where a landlord is concerned with the capacity of an applicant to fulfill the obligations and responsibilities of tenancy, the landlord may, per section 2(1) of the Regulation, require a guarantor (co-signer) as a person willing and able to step up financially on behalf of the applicant should the applicant become a tenant and subsequently default on the various obligations and responsibilities of a tenant.  Interestingly, the Regulation is silent on criteria that may be asked of, and reviewed, in regards to the person who shall stand as the guarantor.

Security Deposit

A landlord is allowed to require a security deposit for rent per section 2(2) of the Regulation; however, whereas such permits so only in accordance to section 105 and section 106 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, such a deposit is permissible only for the risk of unpaid rent and in a maximum amount of the rent applicable to one rental period or one month.

Avoiding Discriminatory Decision

When reviewing tenancy applications, a landlord must refrain from engaging in any conduct that selects, or denies, an applicant on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.  Discrimination on the basis of any of these factors may be deemed as a violation of the Human Rights Code.

Summary Comment

The information that a landlord may request from a tenancy applicant is governed, in part, by various regulations of the Human Rights Code.  A landlord is permitted to request rental history information and credit references and may, with authorization from the tenant, perform credit checks via agencies such as Equifax and TransUnion.  If a landlord inquires of rental history information or credit references, the landlord may also make inquiry regarding income details.  Surprisingly, without also inquiring of rental history or credit references, a landlord is precluded from inquiring of income details alone.    Most significantly, a landlord must avoid discriminatory conduct such as selecting a tenant based on protected factors such as race, gender, family status, among many others.

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