When talking to landlords they sometimes seem to be a bit confused about what their rights and obligations are when choosing tenants.
So let’s take a look at this.
When it is unlawful to discriminate
According to the gov.uk website here (and they should know), it is unlawful to discriminate against anyone for any of the following reasons:
- being or becoming a transsexual person
- being married or in a civil partnership
- being pregnant or on maternity leave
- race including colour, nationality, ethnic or national origin
- religion, belief or lack of religion/belief
- sexual orientation
These are called ‘protected characteristics’ – and buying and renting property is one area where the law protects you from discrimination.
So if you are a landlord you cannot refuse to rent a property to someone simply because:
- They are over 70
- They are black
- They are Muslim (or Christian)
- They are men, or because
- They have mental health issues
If you do, you will be breaking the law.
However, this does not mean that if someone who is disabled, gay, etc applies to rent your property you have GOT to rent to them.
- It is illegal if you refuse to rent to them because (for example) they are gay.
- However, it is not illegal to refuse to rent to them because you don’t think they can afford the rent.
When you should discriminate
Discrimination does not necessarily mean unlawful discrimination. So, for example, it is perfectly acceptable, and indeed in most cases advisable, for a landlord to discriminate against someone who clearly cannot afford the rent for the property. In that context ‘discrimination’ is another way of saying ‘choose’.
Here are some other situations where ‘discrimination’ (or not choosing someone) may be a good idea:
- People who you believe will not look after the property properly
- People who have numerous county court judgements registered against them
- People whose former landlord gives a bad reference for them, or even
- People who you feel uneasy about – your subconscious may be warning you that this person is going to be a bad tenant.
The anti-discrimination legislation is not there to force you to rent your property to someone you consider will be a bad tenant.
When you can discriminate
In fact, you can ‘discriminate’ against anyone, for whatever you like, so long as it is not in respect of one of the ‘protected characteristics’.
So it is perfectly legal (if perhaps not very nice) to ‘discriminate’ against people because:
- They have red hair
- You don’t like them
- They ride a motor bike
- They are plumbers, or
- Because they are on housing benefit (or whatever it is called nowadays) – but see the note below.
If someone is aggrieved about being refused a property and suspects that this is down to unlawful discrimination by the landlord – there are always going to be problems proving this – unless the landlord admits it.
So for example
- If Landlord X tells Tenant Y to push off as he’s not having any nancy boys in his property – Tenant Y may have a case.
- However, if Landlord X just tells him to push off, without using any other offensive language, and rents the property to someone who has a higher paying job – Tenant Y won’t have a case. As the landlord’s decision to choose the other tenant is perfectly reasonable.
Landlords need to be careful therefore about telling tenants what their reasons for refusal are.
You also need to be careful about selecting people for reasons unconnected with their ability to pay for or look after the property – as you may be discriminating unlawfully without realising it. For example, if you have a policy of not renting to people with certain jobs – this may be unlawful discrimination if those jobs are invariably done by people of a particular race or religion.
Note by the way that positive discrimination is allowed, if people with a protected characteristic:
- are at a disadvantage, or
- have particular needs
Which is why it is all right to have accommodation specially adapted and reserved, for example, for disabled people in wheelchairs or the elderly.
Discrimination v. Unlawful discrimination
In short, it’s all about your reason for refusal to rent. If your reason is connected to a protected characteristic – you are in the wrong.
Apart from this, you can choose who you want to live in your property.
I have not discussed ‘right to rent’ checks in this article but note that landlords are all bound by the Code of Practice issued by the Government on avoiding unlawful discrimination when conducting right to rent checks in the Private Residential Sector.
If you are a tenant and you believe you have been illegally discriminated against, you should contact the Equality Advisory Support Service for advice.
Note 28/2/2018 – there has been a case (which was settled) which indicates that in some circumstances discriminating against tenants on benefits could be unlawful.