Discrimination when Renting

In San Francisco1 and Oakland,2 landlords are expressly prohibited from discriminating based on gender identity. If transgender-specific discrimination occurs outside of these two cities, an individual is still protected under California state law. The Fair Employment and Housing Act (FEHA), asserts that “the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability … is hereby recognized as and declared to be a civil right.” In 2003, the Gender Nondiscrimination Bill (AB 196)3 amended FEHA to explicitly protect transgender people by adding a gender identity specification to the definition of “sex.”4 Relief under FEHA, then, is available to those who can make a claim for discrimination based on gender identity. However, it is important to note that for a claim to succeed, one must be able to prove that the discrimination was based on gender identity. Landlords often evict or refuse to rent to transgender people but cite a legally valid reason or no reason at all, rather than explicitly breaking the law.

Individuals outside of California should research their state's housing discrimination laws. In all states, no matter what the law, landlords frequently utilize discriminatory practices and claim to be basing their action on legally acceptable reasons. It can be very difficult to bring a discrimination claim against a landlord, so collecting and documenting evidence that the discrimination was explicitly related to gender identity is very important. Whenever possible, ask for things in writing, especially if a landlord explicitly tells you that something is based on gender identity. A map available from the American Civil Liberties Union can serve as a quick guide to discovering protections available in your jurisdiction, and is current through September 2011.

California law protects transgender tenants from a variety of discriminatory actions by landlords besides a refusal to rent property. A landlord might alter the terms of the lease so as to charge a transgender tenant a higher rent or provide terms that are less favorable than for other tenants. A landlord might also try to charge a higher fee for rental application. The fee itself is used to cover costs related to reference checking. A landlord is not able to take an application fee if he or she knows there are no rental units available or none available within a reasonable time. Any amount that is not used to perform those checks must be returned to the applicant. The landlord must disclose the name, address, and phone number of the tenant screening service, if asked, before the fee is taken.5

In California, tenants are legally entitled to certain rights.6 A landlord may neither enter a rented property without notice, nor monitor guests to a leased property. Doing so is a form of harassment and is illegal under FEHA. In cases of emergency, tenant abandonment, or surrender, a landlord or manager may enter a rental unit without notice. Otherwise, a landlord may enter a unit only after giving reasonable written notice with a valid reason. A landlord has a valid reason to enter when he or she must do one or more of the following: make a needed or agreed upon repair or alteration; show the unit to prospective buyers, tenants, contractors, lenders, or repair workers; provide agreed upon services; conduct an inspection related to a tenant's security deposit, prior to their move-out; or when he or she has a court order.7 Landlords and tenants may want to consider using an inventory checklist to document the condition of the property or address the need for repairs before problems arise.8

A landlord may not enter a rental unit simply to inspect the premises, even if the rental agreement specifies that this is allowed. Once the landlord has given notice, entry should be during normal business hours, unless the tenant consents otherwise. The right of entry shall not be abused by the landlord or used to harass a tenant. Reasonable notice has been deemed by the courts to be 24-hour notice. The notice should be personally delivered, left with someone at the premises of suitable age and discretion, or left at, near, or under the usual entry door where it is likely to be discovered. It can be mailed, but the landlord should allow six days between mailing and entry. There is an exception that allows oral notice of entry during the sale of a property provided certain procedures are followed.9 However, the landlord may enter the unit without giving prior notice when immediate entry is necessary to prevent injury to property, or people, or to determine tenant’s safety, or to comply with state law or local ordinance. The landlord must leave written notice if he or she enters without giving notice and the tenant is not present.

Landlords generally have a duty to make repairs to a rental unit. There are times that landlords may treat tenants badly or try to force them to move out by not making necessary repairs to rental units. However, landlords have a legal responsibility to ensure that the rental unit is fit to live in, or “habitable.”10 “Habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety.11 This does not mean that landlords always have a legal duty to repair just because they are violating codes. Under Green v. Superior Court, all residential leases and rental agreements in California have an implied warranty of habitability making it the legal duty of a landlord to repair conditions that seriously affect the rental unit’s habitability. On the other hand, landlords are not responsible for repairing damage caused by tenants, their families, guests, or pets.12 There are instances where a renter may be able to withhold a portion of rent from the landlord in order to make legitimate repairs that are necessary to make a rental unit “habitable” under the implied warranty of habitability. Transgender tenants and their advocates can find more information on habitability and landlord-tenant responsibilities for repairs here.

Background and Credit Checks
There are several issues about which a landlord may not inquire.13 A landlord may not ask a prospective tenant questions regarding their membership in a protected group,14 such as race, sex, or gender. Examples of questions which may be unlawful include: “What medications do you take?” or “Have you had sex reassignment surgery?” or “Are you transgender?” However, discrimination in the application process is not always obvious. To discern if one is being discriminated against, it is important to watch not only for intrusive questions but also to notice to whom these questions, or even other lawful questions, are being directed. A landlord is legally allowed to do a background check on an applicant, but is not allowed to run such checks only on certain groups of people. It can be very difficult to prove whether a landlord is running checks only on specific groups of people, so be sure to document any evidence or indications of this practice.

Many landlords run credit checks and will not rent to applicants with credit issues. In California, refusing to rent to a person based on bad credit is legal. Landlords can use information in the screening process, including whether tenants paid their rent on time, if they damaged previous rentals, whether they were subject to an unlawful detainer lawsuit, and whether past landlords considered them to be good or bad tenants.15 The best way for a tenant to prepare is to obtain a credit report and make sure to be aware of and fix any credit issues before having a potential landlord conduct a credit check.16 Landlords usually obtain credit information from the three major credit bureaus: Experian, Equifax, and Transunion. Some landlords will accept a tenant with poor credit history who also has a secure job and good references. Some landlords do not ordinarily run credit checks, and instead rely on other criteria to make a decision. There are very specific guidelines landlords must follow in order to use consumer reports to evaluate rental applications.17 Potential renters should familiarize themselves with these rules before submitting to a credit check for rental purposes. If income allows, another solution may be to offer to pay a higher deposit or provide a co-signer in lieu of a positive credit report.18

Landlords might also look at criminal records before deciding to rent to an individual. Like poor credit records, criminal records are likely to have a detrimental effect on a person's attempt to secure housing, and there is no law prohibiting landlords from refusing to rent to individuals based on these factors. In San Francisco, an applicant may be eligible to have his or her criminal record improved though an initiative called the Clean Slate Program.19 Governmental agencies and nonprofit organizations across California and throughout the country have begun offering similar criminal record improvement programs and initiatives. Individuals interested in improving their criminal record should research if such programs are offered through their local courts, county public defender’s office, or through nonprofit legal aid groups. People who have been arrested, convicted of a crime, or been found delinquent in Juvenile Court could be eligible to have their criminal record "cleaned" by a simple process. Some records, such as marijuana possession and juvenile offenses, can be totally destroyed. Other records can be changed from felony to misdemeanor status.20

In California, background checks run by prospective landlords to learn more about prospective tenants are called “tenant screenings.” A tenant screening is a written or oral report by a tenant screening service regarding a prospective tenant’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or lifestyle.21 A landlord is legally allowed to request a tenant report about an applicant, but is not allowed to run such checks only on certain groups of people. It can be very difficult to prove whether a landlord is running checks only on specific groups of people, so be sure to document any evidence or indications of this practice.

A tenant screening service must provide without charge any information that has been used within the past 30 days to deny the rental or increase the security deposit or rent of a residential housing unit to the individual, but you must make this request within 60 days. A tenant must be allowed to explain any eviction report or any disputed item not resolved by reinvestigation and it will be included in the tenant report, but a screening service may limit it to 100 words. The Fair Credit Reporting Act (FCRA) requires landlords to give an adverse action notice to each potential tenant whose credit report was used to deny their lease application.22 The notice should indicate which credit reporting agency was used, and how to contact them. Every consumer is entitled by the law to a free copy of their credit report.23 A prospective tenant who has been involved in a previous eviction proceeding may apply to the court to have their name expunged from the record.

Rent Control
Tenants can usually find information on rent control by searching for their local “rent board” or “rent control board.” California cities with rent control include Berkeley, Beverly Hills, Campbell, East Palo Alto, Fremont, Hayward, Los Angeles, Los Gatos, Oakland, Palm Springs, San Francisco, San Jose, Santa Monica, Thousand Oaks, West Hollywood, and Westlake Village.24 In San Francisco, rent control law and regulations provide that a landlord may increase a tenant's base rent once every twelve months by the amount of the annual allowable increase. The annual allowable increase changes every year on March 1 and is based on 60% of the increase in the Consumer Price Index for all urban consumers in the San Francisco Bay Area.25 San Francisco residents can obtain a list of the current and past annual allowable rent increases at the San Francisco Rent Board's office or by visiting their website.

San Francisco's rent control laws provide for just cause eviction protections: this means that tenants can only be evicted for specific reasons.26 Tenant harassment is prohibited. Examples of harassment include failing to perform required repairs or maintenance, trying to coerce tenants to vacate with offers of payment to vacate, accompanied by threats or intimidation, and refusing to accept or acknowledge the tenant's lawful rent payment.

A landlord can neither evict a tenant nor threaten to evict for being transgender.27 An eviction in the absence of any unlawful activity on the part of the tenant but motivated simply by a landlord's knowledge of his or her gender identity is unlawful. Threatening eviction without legitimate grounds to evict is a type of harassment and is also prohibited by law.28 Furthermore, many tenants are unaware that eviction must happen through a legal process. This means that a landlord cannot simply announce the eviction to the tenant, remove the tenant's belongings from the premises, or lock out the tenant.29 None of these actions constitute a legal eviction. There are two steps to eviction in California: first, a landlord must provide proper, legal, written notice, and then unlawful detainer (eviction) lawsuit occurs.30 Tenants living in homes that are in foreclosure or already foreclosed may also still have rights during eviction.31

If a landlord tries to evict a tenant or take some other action against a tenant within six months after the tenant has done any of the following, the law assumes the landlord was motivated by retaliation:32

• Using the implied warranty of habitability’s repair and deduct remedy, or the tenant telling the landlord that they are intending to use the repair and deduct remedy;

• Complaining about the condition of the unit to the landlord or to an appropriate public agency after having given the landlord notice and a sufficient amount of time to make necessary repairs or fix the problem;

• Filing a lawsuit against the landlord based on the condition of the rental property; or

• Causing a public agency to inspect the unit and/or issue a citation to the landlord.

Moreover, landlords, managing agents, real estate brokers, or salespersons are in violation of the California Fair Employment and Housing Act for harassing, evicting, or otherwise discriminating against a transgender person in the sale or renting of property when the “dominate purpose” is to retaliate against a person for opposing unlawful practices or aiding or encouraging a person protected by the Act to exercise their rights.33

For more information specifically on the eviction process in California, please click here.

Elder Protections
Elder tenants age 65 or over facing harassment or illegal eviction in California may have additional remedies available to them under the Elder Abuse and Dependent Adult Civil Protection Act. The act prohibits the financial abuse of an elder through the taking of real or personal property for wrongful use, with an intent to defraud, or through undue influence.34 The act also prohibits any form of harassment or intimidating behavior intended to cause an elder emotional distress.35 It has been applied in a case where a co-tenant unlawfully denied her roommate access to the apartment, and in case where a landlord illegally prevented a tenant from accessing her mailbox by installing a lock on it.36 The act allows elders to recover attorney’s fees if their claim is successful, which may act as an incentive for an attorney to take their case.37

Security Deposit
In California, the most a landlord can require for a security deposit is no more than two months of rent for an unfurnished unit or three months of rent for a furnished unit.38 There is no such thing as a non-refundable security deposit.39 If a landlord fails to return a security deposit within twenty-one days40 of the tenant's date of move out, or keeps a portion of the security deposit and the tenant disagrees with the charges, the tenant can write the landlord a “letter of demand.” The demand letter should be sent by certified mail with return receipt requested. Tenants should retain copies for their records. If the landlord does not respond to the letter of demand within ten days, the tenant can file an action up to $7500 in small claims court. If the tenant can prove that the landlord’s retention of the security deposit was willful, the tenant could be awarded up to $600 in punitive damages.41

  1. San Francisco Police Code, § Section 3304. Last visited June 3, 2013. 

  2. Oakland Mun. Code, Ch. 9.44. 

  3. AB 196: What It Means to You, Transgender Law Center. Last visited June 3, 2013. 

  4. Cal. Assem. Bill No. 196 (2003). 

  5. Cal. Civ. Code § 1950.6 

  6. California Tenants: Know Your Rights!, Tenants Together. Last visited June 4, 2013. 

  7. Cal. Civ. Code, § 1954. 

  8. Inventory Checklist, California Department of Consumer Affairs. Last visited June 4, 2013. 

  9. Cal. Civ. Code, § 1954. 

  10. Green v. Superior Court, 10 Cal.3d 616, 637-638 (1974); Cal. Civ. Code § 1941, 1941.1. 

  11. Id. 

  12. Cal. Civ. Code, § 1929, 1941.2. 

  13. Cal. Gov. Code §12955(b). 

  14. See Smith v. Fair Employment & Hous. Com., 12 Cal. 4th 1143, 1155 (1996), (Landlord may not ask two prospective tenants whether or not they are married and make a decision based on their response). 

  15. Schoendorf v. Unlawful Detainer Registry, Inc., 97 Cal.App.4th 227 (2002). 

  16. Credit Repair: How to Help Yourself, Federal Trade Commission. Last visited June 4, 2013. 

  17. Using Consumer Reports: What Landlords Need to Know, Federal Trade Commission’s Bureau of Consumer Protection Business Center. Last visited June 4, 2013. 

  18. Steps to Finding Affordable Housing, East Bay Housing Organizations. Last visited June 4, 2013. 

  19. Clean Slate Program: How to Apply, San Francisco Public Defender. Last visited June 4, 2013. 

  20. See Know Your Rights Manual for the Transgender Community: Criminal Law, National Lawyers Guild. Last visited June 4, 2013. 

  21. The Fair Credit Reporting Act, § 606, 15 U.S.C § 1681d, Federal Trade Commission. Last visited June 4, 2013. 

  22. The Fair Credit Reporting Act, § 615, 15 U.S.C. § 1681m,Federal Trade Commission. Last visited June 4, 2013. 

  23. Your Access to Free Credit Reports, Federal Trade Commission. Last visited June 4, 2013. 

  24. List of Cities with Rent Control, California Department of Consumer Affairs. Last visited June 4, 2013. 

  25. San Francisco Admin. Code, § 37.3. 

  26. Overview of Just Cause Evictions, San Francisco Rent Board. Last Visited June 4, 2013. 

  27. Cal. Gov. Code §12955. 

  28. Cal. Gov. Code, §12900-12996. 

  29. Cal. Civ. Code, § 789. 

  30. See Unlawful Detainer Procedures and Time Chart, San Francisco Tenants Union. Last visited June 4, 2013. 

  31. Q & A for Tenants Living in Properties Sold at Foreclosure, Tenants Together. Last visited June 4, 2013. 

  32. Cal. Civ. Code, § 1942.5. 

  33. Cal. Gov. Code, §12955(f). 

  34. Cal. Welf. & Inst. Code, §15610.30 

  35. Cal. Welf. & Inst. Code, §15610.53 

  36. Deprima v. Hermann, No. B148727, 2002 Cal. App. Unpub. LEXIS 9036; Van Horn v. Morgan, No. B233928, 2012 Cal. App. Unpub. LEXIS 3482. 

  37. Cal. Welf. & Inst. Code §15657.5 

  38. Cal. Civ. Code, § 1950.5(c). 

  39. Cal. Civ. Code, § 1950. 

  40. Cal. Civ. Code, § 1950.5 (g)(1). 

  41. Cal. Civ. Code, § 1950.