Dear Fair Housing Lady: Social Security Numbers

| June 21, 2012 | 8 Comments

Dear Fair Housing Lady,

The rental company I work for is thinking about requiring all applicants to have a social security number and not accepting TIN’s. I’m concerned about potential Fair Housing issues (national origin). Could you please advise on if there would be an issue?

Brenda

 

 

Hello, Brenda, and thank you for your question.  I will remind you that my input is not legal advice – first because it isn’t (!) and secondly because fair housing teachers and lawyers are split pretty well down the middle on this issue.  So on which side of the divide does Fair Housing Lady stand?  On the side that suggests that there is some level of risk in requiring an SSN in order to qualify to rent.  And now I should offer my rationale (I can be rational!):
1. As you pointed out, the SSN issue is tied to the protected class of national origin (because all US born citizens have an SSN but folks from other countries, even if here legally, may not – international students for example).  Thus the “neutral” policy of requiring SSNs of all applicants will statistically impact those from other countries.  This is called  a “disparate impact”.
2. Fair housing advocates and HUD are pushing for the courts to recognize “disparate impact” as a civil rights violation under the Fair Housing Act.
3. Landlords like to check credit (that is legal and makes good business sense); however, an SSN is not needed to check credit (no, it is not).
4. Landlords like to check criminal background (at the moment that is legal, although that might not be the case in the near future – and we will hear lots of squealing about that; and it makes good business sense); however, an SSN is not needed to check criminal background (no, it is not).
5. So if any applicant does not have an SSN a landlord can still get the information on that applicant with an SSN.
6. If the landlord/tenant act in your State does not preclude such, consider a Plan B.  Something along the lines of this non-legal advice language:  “Should any applicant not provide us with an SSN, the security deposit required for that applicant if he otherwise qualifies to rent shall be at two times the amount required of those qualified applicants who do provide an SSN”.  This provides the landlord with some extra financial protection in the case of lease default and provides the applicant with an enhanced opportunity to rent, notwithstanding that he may not “be from around these parts”.
It is an interesting fair housing matter; perhaps someday there will be a case that provides some measure of clarity.  Let’s just hope that it is not your case!
Sincerely, FHL

 

Category: National Origin

About Nadeen Green: Nadeen Green has been an attorney since 1979. She has taught Fair Housing law to the multi-family housing industry since the Fair Housing Amendments Act when into effect in 1989. She has been asked to speak numerous times for the National Apartment Association and the Multi-Housing World annual conventions. Her reader-friendly articles on Fair Housing appear regularly in industry publications. Nadeen is proud to be Senior Counsel with For Rent Media Solutions, which offers print and online advertising products for all communities, whether through For Rent Magazine®, ForRent.com, Para Rentar, Senior Outlook, After 55, or specialized publications for condominiums and student housing. .

Comments (8)

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  1. Hi Brenda & Fair Housing Lady,

    I have to respectfully disagree with the non-legal advice in #6 above. It seems that charging an individual without a SSN a higher deposit would also have a disparate impact on those from other countries. Perhaps it would be better to accept another identifying number for credit checks & criminal background checks.

    Best of luck,

    Metro Fair Housing Services, Inc.

    • Nadeen Green says:

      Hi, Ashley. I do see your point and think that you and I are looking at this like the age old “glass half empty/ glass half full” adage. Through the years I have met many landlords who use the SSN for credit/criminal checks…no number = no checks = no renting. And years ago even Mr. Green with HUD (no relation at all to Fair Housing Lady) did not see a problem with this. So I began to suggest that in order to be more inclusive from a national origin standpoint (that is of course the protected class that is impacted by this issue) landlords should consider other ways to protect their financial interest as to whom they rent. The theory is that credit can be somewhat of a predictor of a resident’s ability or willingness to pay rent (a very important thing for a landlord!). Without a credit check there is an enhanced risk. But if a landlord is willing to offer an alternative (such as an increased security deposit to reduce the risk of non-payment) then more folks without SSNs might be able to rent. Rather than not being rented to at all, there is at least another option for some folks to get in the door (the glass half full from my perspective); the enhanced payment was never intended to be punitive or discriminatory (the glass half empty). I do appreciate your feedback and input, and I am sure the readers of this blog do as well.
      And if you have ideas or suggestions on any fair housing topic (whether I have covered it at all), please weigh in. I respect the position and viewpoints of those on the advocacy and enforcement side of fair housing, and your experience and perspective is welcomed. I hope I hear from you again.

      • Joy F says:

        Hi Dear Housing Lady,

        I wanted to point out a discrepancy in your argument supporting charging an additional security deposit for applicants without a SSN number. You said that it would offer landlords additional financial security in lieu of a credit check, but had already said that a SSN is not required for a credit check. Since that is the case, what is the reasonable argument for charging additional security deposit?

        Thank you.

        • Nadeen Green says:

          Hi, Joy, and thank you for the feedback, as I am always pleased to know that folks are reading this blog, even though you are pointing out a discrepancy on my part. (I am being far more gracious with you under this circumstance than I am with hubby when he points out discrepancies in my logic). I have looked at what I posted previously within the context of your observation and am thinking that maybe if I qualify #6 ,that will create a segue that will make my rationale a bit more logical. So here is the new version of #6:

          In the rare event that it is unreasonably difficult for you to access the necessary information without an SSN (or if your vendor that handles this for you is not willing to occasionally go this extra mile on your behalf), you should consider a Plan B.
          Provided that the landlord/tenant act in your State does not preclude such, consider something along the lines of this non-legal advice language: “Should any applicant not provide us with an SSN, the security deposit required for that applicant if he otherwise qualifies to rent shall be at two times the amount required of those qualified applicants who do provide an SSN”. This provides the landlord with some extra financial protection in the case of lease default and provides the applicant with an enhanced opportunity to rent, notwithstanding that he may not “be from around these parts”.

          Perhaps now I am making a tad more sense. And if not, I will try again – just let me know if I need to do that.

          Respectfully, FHL

  2. Lori says:

    If a social security number is required to file eviction on a tenant, then it makes sense that a landlord should be able to require a social security number, doesn’t it? Most of our tenants are in Multnomah County and the filing paperwork that we submit to the company that does our FEDs for us requires a SSN when filing in Multnomah County.

    • Nadeen Green says:

      If in fact your court system absolutely requires an SSN in order to file an eviction, then I believe you have a valid reason to require them as a landlord. But something tells me that your courts do not really require this. After all, if Defendants all had to have SSNs to be sued, no one would want to have one – I could run you over with my car on purpose (I would not of course do this – LOL) and then I could say “You can’t sue me, I don’t have an SSN!”. So first verify that an SSN is needed to legally evict someone. Now this doesn’t mean that your vendor who assists you with evictions or other legal processes doesn’t WANT to have an SSN for folks you are evicting (it can make things easier), but I would verify with them that it really is impossible to file without one. (And just because your vendor wants one, that may not be a good enough rationale for you to require them.) So head out and do some verifying – I suspect things may not be as they seem to you.

  3. James says:

    Hi, the property that I work for just raised the required deposit for individuals without a SSN from 3x the rent to 5x the rent. This seems unreasonable and I believe it is because that don’t want the international students to be able to easily lease here. Of course, I can’t prove that, but I know that is why. Is there any law that limits the amount of deposit required. (I’m assuming there isn’t otherwise this change would not have been made)
    Thanks

    • Nadeen Green says:

      James, your interesting question has both fair housing and landlord/tenant considerations. Let’s take a quick gander at both (although technically all ganders are quick).

      The landlord/tenant issue is that some states, cities and/or counties have limits on how much an apartment security deposit may be. In some instances the limit is 2x or 3x the rent for unfurnished apartments. So the first smart thing to do would be to check the state and local landlord/tenant laws to see whether the 5x requirement is in fact compliant for where your community is located.

      Assuming there is no limit or cap on security deposits (which could well be the case), the next smart thing to do would be to be sure that in your company’s policies there is a “why” for this policy. If others (international students or those advocating on their behalf) believe this might be a fair housing matter, the best insurance is a written policy that explains the business reason for the 5x requirement. (For example, leasing policies often require government issued IDs for property tours; the business reason is that leasing agents have been assaulted and even killed when touring with prospects and having photo identification on hand in the office or with colleagues might reduce that risk – a good business reason indeed!) So something along the lines of “For those without a Social Security number, or for those who do not wish to provide such to us, we will require a security deposit of 5x the rent because _________________” is a plan. And if no one can fill in the blank with a good answer, that is one risky policy.

      Why might this be a fair housing issue? Some people think that fair housing is only about “denying” housing. But the FHA talks about “discouraging” people from renting. So without a good business reason for the 5x policy, the conclusion that is reached might be that there is an intent to discourage a certain protected group – national origin. And even if a charge or complaint is not directly brought because of this policy, this might be enough to pique the interest of fair housing groups who will come to the community and do national origin based testing. As to what they may find, who knows – but why invite trouble?

      And a special and personal cautionary note to you (which is absolutely, positively, in no way whatsoever legal advice): if a charge or complaint should ever issue over the 5x policy, you could be named as a defendant for your role in executing the policy. Please be aware of that.

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