Owners and operators must ensure when drafting a lease application and interviewing prospective residents that they do not seek unlawful information. They also must ensure they request the same type of information from each applicant. The logical inference from requesting unlawful information is that the owner or operator considered that information when deciding whether to accept the prospective resident. An application procedure that is more burdensome for one group than another when that group is a protected class violates the Fair Housing Act (FHA).

An application should set out sufficient specific questions to allow the owner or operator (or third-party vendor): (1) to identify potential issues concerning an applicant, and (2) to contact references easily. Each person expected to reside in the apartment should be listed on the application, along with additional other identifying information that later allows the owner or operator to determine whether persons other than those identified in the application live in the unit. This identifying information also is helpful when a person requests access due to lost keys or some other reason, and an owner or operator must decide whether to grant access. Step-children and children of non-custodial parents should be included if they are expected to visit regularly. The application should require a signature from each person whose name appears on the lease (generally, every adult) and each person for whom references will be checked. The application must include specific reference to and consent for the criminal background check, as well as a disclaimer of any obligation to check the criminal background of any other resident or applicant. It is good policy for the application to contain the prospective resident’s agreement that the owner or operator may gather additional data using the information contained within the application, including a credit report.

The application should state that any false information supplied by the applicant constitutes grounds for denial. If it is determined to be false after a lease is granted, it constitutes grounds for eviction. The application should clearly state that the owner or operator will verify the information in the application, check references, and run a criminal background check. Such a statement may be sufficient to lead the applicant to reveal a disqualifying situation without the expense of a reference check. Each person who desires to enter a lease for an available apartment should be offered the opportunity to apply to avoid accusations of discrimination by turning away an applicant without any record.

Of specific concern in the application process is balancing the privacy of a disabled person against the need to know what accommodations and modifications might be requested or necessary. The Fair Housing Act prohibits an owner or operator from asking if a prospective resident has a disability or handicap. Owners and operators may inquire about the need for accommodations or modifications, but they must address this request to all prospective residents if they choose to ask anyone at all.

Owners and operators also may use applications to gather information useful in unexpected or emergency situations, such as unexplained absences, accidents, or illnesses. Beginning in 2021, property owners are required to obtain a “tenant representative” for each resident who might become incapacitated or deceased. [To learn more about this obligation, visit “Residents who become deceased or incapacitated during a tenancy”]  However, owners and operators must use caution to avoid the appearance they assume a duty to notify relatives of an absence or a duty to contact doctors, other medical providers, or emergency services for a resident.

Although security deposits are discussed more thoroughly in this section under Security Deposits, it is important to note here that an application fee likely does not fall within the definition of security deposit because the applicant has not executed a lease agreement or entered an owner/operator and resident relationship at the time it is collected. Basic contract law governs this fee with the prospective resident offering money for the owner or operator’s promise to process the application. Lease applications should be in the form of a contract. The lease application and lease should clearly state that the deposit stands as security for the performance of all the covenants, conditions, and agreements of the lease.