Here's what landlords are allowed to ask prospective tenants

Huge backlog drawing out landlord, tenant disputes Lawyer Michael Thiele says major backlogs at Ontario's Landlord Tenant Board is leading people to wait months, even years for a hearing.

The demand for rental units in Canada is on the rise, placing a greater spotlight on the rental application process and landlord-tenant relationships across the country.

Finding a suitable candidate for tenancy involves sifting through applications and asking the right questions, said Douglas Levitt, a Toronto-based lawyer with Horlick Levitt Di Lella LLP, whose practice focuses on residential and commercial tenancy law. However, this may be easier said than done, as there isn’t specific legislation that outlines what landlords are allowed to ask prospective tenants when deciding who to lease their unit to, he said.

An important place to start when determining how to vet prospective tenants and what information to consider is a province’s Human Rights Code, Levitt said.

“The Human Rights Code basically says that you cannot discriminate against code-protected people in [different] social areas, one of which includes accommodation or housing,” he told CTVNews.ca in a phone interview on Tuesday.

Under the legislation in Ontario, landlords are not allowed to refuse accommodation to anyone based on a number of different factors, including race, sexual orientation, age, marital status and disability. Provincial jurisdictions across Canada have their own human rights codes with similar stipulations in order to protect prospective tenants in the selection process.

It’s important that landlords be mindful of what they ask of prospective tenants when vetting rental candidates, said Levitt. Otherwise, they may be at risk of directly or indirectly discriminating against tenants.

“You almost have to be a lawyer and sort of interpret [whether] you are asking the right questions [or] can these questions get you in trouble,” Levitt said.

When determining what to consider in the rental application process, it comes down to the relevance of the information, said Hunter Boucher, director of operations for LandlordBC, an organization offering support to those who own and manage rental housing in British Columbia.

“If it's something that is relevant to renting someone a home, generally speaking, it’s something that you're going to consider,” Boucher told CTVNews.ca on Tuesday in a phone interview. “Things like, were they paying their rent on time in their previous accommodation [and] their credit report, which would show whether or not they pay their bills on time.”

It’s also important for landlords to consider what information is being gained with each question they ask a prospective tenant, Levitt said.

“You really have to think about what the answer gets you, and the benefit you can get from those answers, as opposed to the costs,” Levitt said. “The costs [refer to] being potentially offside the Human Rights Code and exposing yourself to some sort of legal proceeding.

“A lot of the unintentional discrimination that exists could be prevented by some sort of thoughtfulness.”

Levitt and Boucher, along with Kristin Ley, a lawyer with Cohen Highley LLP based in southwestern Ontario who specializes in residential tenancies, each break down some of the questions that landlords are able to ask prospective tenants, and other queries that should be avoided.

Can you ask a tenant about income? Yes.

The question of how much money a person makes is an important one to consider when assessing rental applications, said Boucher.

“The point of tenant selection is determining whether or not it's going to be a sustainable tenancy,” he said. “One of the key factors of a sustainable tenancy is that the person that you're renting to can, in the long term, pay the rent.”

In Ontario, provincial legislation outlines that landlords are allowed to request credit references and details pertaining to rental history, as well as consent to conduct credit checks. In addition to these details, landlords are also allowed to request further income information.

“Typically, in practice, [this information] is all requested at one time, it's part of a landlord's rental application process,” Ley told CTVNews.ca in a phone interview on Tuesday. “Landlords are looking to make sure that tenants are going to be a good fit in the building [and] that the rent is going to be paid.”

Credit checks are useful tools in determining whether a prospective tenant keeps up with their existing payments and delivers them on time, Boucher said, making it another key consideration landlords should keep in mind when selecting tenants.

Should you ask a tenant what their nationality, race or ethnicity is? No.

While nothing prohibits a landlord from asking this question, refusing accommodation to tenants based on factors such as race, ancestry, place of origin, skin colour, ethnic origin or citizenship is generally not allowed.

As a result, if a landlord asked this question and later decided to turn down a prospective tenant, even if for a different reason, they could still be at risk of facing a lawsuit, Levitt said.

“You could, as a landlord, be faced with a lawsuit later on the basis that you've discriminated against them because of nationality,” Levitt said. “Practically speaking, the Human Rights Code would result in landlords not being able to ask for that. Certainly, it’s advisable not to ask for it."

Can you ask a tenant about past tenant-landlord disputes? Yes.

Considered part of a person’s rental history, it is acceptable for landlords to ask prospective tenants about legal disputes they may have had in the past with previous landlords, said Ley. Landlords will often do this, along with asking for the contact information of past and current landlords, to conduct reference checks.

“[Landlords] could certainly ask about their past experiences as tenants,” she said. “Tenants could refuse to share that information, but it can certainly be requested.”

These types of questions will always be relevant to landlords, Boucher said.

“[Landlords] generally want to make sure that this is going to be a long-term, sustainable tenancy,” he said. “If the person that you're renting to had issues in the past, specifically with any other landlords, then that’s something that they would want to heavily consider.”

Should you ask a tenant whether they have pets? It depends.

In British Columbia, for example, tenancy agreements can prohibit pets on residential properties, as well as place limits on their size. This makes the question of whether a prospective tenant has pets a valid one, Boucher said.

However, landlords in Ontario are not allowed to include clauses in their lease agreements stating tenants cannot have pets, based on the province’s Residential Tenancies Act. According to the legislation, any provisions that prohibit the presence of pets in or around a residential complex is void and not enforceable.

While it’s possible to ask this question to prospective tenants, this creates the potential for discriminating against them based on these grounds, Levitt said.

“From a best practices point of view, it's not a question you want to ask,” he said. “It's a dangerous question to ask as landlords because if you end up refusing a prospective tenant having asked that question, then you might expose yourself to an argument that you rejected the tenant on the basis that they had pets.”

It's also possible that asking this question could raise human rights concerns, Levitt said, as it may negatively impact tenants who require assistance from service animals to help with disability-related needs. In provinces such as British Columbia, however, there are protections in place that prohibit discrimination against tenants who are blind and require the services of a guide dog.

Ultimately, Levitt urges caution and suggests that landlords consult with their own province’s legislation when it comes to asking about pets.

“When you ask [for] that type of information, you may be opening up a can of worms, so you need to be careful,” Levitt said.

Can you ask a tenant if they’re a smoker? Probably not.

Both Ley and Boucher say it’s possible for landlords to ask prospective tenants whether or not they are smokers. Smoking is not something typically protected under human rights codes, so there’s nothing wrong with asking the question, Boucher said. Landlords are also allowed to set policies around whether or not tenants are allowed to smoke on the rental property, Ley said.

However, Levitt urges landlords to consider the goal of asking the question in the first place.

“What's the purpose of the question, really? Is it because you don't want smoking in the building?” Levitt said. “Just because somebody smokes, doesn't mean they're going to smoke in the building.”

It’s still possible to include no-smoking provisions in lease agreements and make it clear to any prospective tenants that they cannot smoke on the rental property, Levitt said. Once these terms have been communicated, it will be up to the tenant to decide whether or not they are prepared to agree to them. However, Levitt said he would avoid asking the question.

“It’s probably not a question I would ask,” Levitt said. “If you're going to look at whether [someone] smokes or not and reject them on that basis, I don't think that that is a good approach for landlords. It has very superficial logic to it.”

Should you ask someone if they are receiving social assistance? No.

While it is possible to ask tenants to disclose information about their income, it is generally not acceptable to ask whether or not they are receiving social assistance, said Boucher. Landlords are also not allowed to discriminate against prospective tenants based on where their income is obtained from, so long as it’s sourced legally, such as through social assistance, he said.

“At the end of the day, the decision [to rent] cannot be based on where that income comes from, so long as it’s a legal source of income,” Boucher said. “Social assistance of any type is generally going to be a lawful source of income.”

Refusing to allow a prospective tenant to rent a unit based on the fact that they receive social assistance would be considered discriminatory under human rights codes, said Ley.

Can you ask a tenant how old they are? Yes.

A tenant’s date of birth will typically be provided during the rental application process one way or another, so landlords will have access to this information and there should be no problem asking for it, Boucher said. Still, it’s crucial for landlords to be mindful of the fact that they are not allowed discriminate against prospective tenants based on their age, he said.

“There are situations where you're going to ask questions that are going to overlap with the things that are protected under the Human Rights Code,” Boucher said. “The importance there is not making a decision based on it, and that you have a good reason as to why you're asking that question.”

Should you ask a tenant about their marital or family status? No.

Asking questions about whether a prospective tenant is married or has children and if so, how many, would not be permissible, Ley said.

“That’s personal health information, for one [and] it's not a relevant consideration [for tenancy],” she said. “There would be no reason for a landlord to require that information.”

Should you ask someone how many people will be living in the unit? Yes.

While a landlord can’t necessarily ask about marital or family status, they do have the right to know how many people will be living in the rental unit with the tenant. Typically, as part of rental applications, landlords will ask for information on who the prospective tenant is, and who the occupants of the unit would be, Ley said.

“It's important to know who the proposed tenants are because they are, in fact, responsible for the rent for the unit,” she said. “[Information on] the occupants, or who is going to be living in the unit, is collected for fire and life safety issues."

According to Boucher, it’s also possible for landlords to select tenants based on the number of people that will be living in that space.

“Landlords, when renting out a space, must consider the feasibility of the number of people that are going to be living in the space,” Boucher said. “Landlords must consider what is sustainable within that rental unit.”