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(For clarity: Applicant - the adult financially responsible for the lease. Occupant - anyone over the age of 18 that will be residing with the Applicant but is not financially responsible for the lease.)

Is it legal for a landlord to refuse a lease application for the sole reason that an Occupant included in the application is an undocumented immigrant despite the Applicant being a US Citizen?

Examples would include a US Citizen who is seeking housing to live with his/her legal spouse or adult child who is an undocumented immigrant. In this case, the Citizen would be the Applicant and the spouse or child would only be included in the rental application as an Occupant.

One justification some landlords give is that they are unable to process a background or credit check without an SSN, however some resources such as this one seem to make that defense untenable.

I'm not an attorney but it seems to me that refusing to lease housing to an undocumented immigrant, who meets all other requirements and is only an Occupant, based solely on their immigration status is nearly equivalent to refusing to sell other necessities such as food, water or clothing to a person simply because of their immigration status. Or perhaps even worse, refusing to sell those necessities to a Citizen who is buying those necessities with or for an undocumented immigrant.

(Potentially relevant is the case of Lozano vs City of Hazleton where the Supreme Court denied to City of Hazleton their appeal to an earlier decision that ruled as unconstitutional a city ordinance that prohibited landlords to rent to undocumented immigrants. The basis for the decision was mostly due to local government being deemed to have overreached into the arena of immigration enforcement - an area explicitly reserved for the Federal government.)

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  • What state are you in? Even though immigration is governed by federal laws, due to federal inaction, some states have laws dealing with landlords and requirements to know the immigration status of housing lease applicants. Apr 26 '16 at 18:23
  • I'm in Pennsylvania
    – Genaro
    Apr 26 '16 at 18:41
  • To me, you are asking two different (though related) questions in your title and answer. Perhaps if you clarified which you want answered, you may get an answer. A landlord not being restricted from refusing housing to someone (especially in the case described), does not mean it is illegal for the landlord to restrict a lease on the grounds of immigration status of a tenant/resident (or to restrict the presence of sub-leasees or guests, to the limit provided in local law)
    – sharur
    Mar 13 '17 at 18:26
  • @sharur Good point. I've updated the title and question based on your feedback.
    – Genaro
    Mar 13 '17 at 18:43
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+100

The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case.

There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question.

If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice.

If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered.

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  • In terms of the size of the property, this is usually seen in communities with many buildings of apartment and townhome units. Also, this leads me to ask (if it requires a separate Question, I can create one as well): are there Civil Rights laws that may apply that include immigration status as a protected class? Oddly, I can't seem to find any and it seems as though courts have been reluctant to include that together with either "race" or "national origin."
    – Genaro
    Mar 13 '17 at 18:45
  • 1
    @Genaro: no "race" and "national origin" are completely separate from immigration status. I've tried to give examples in my answer; please let me know if it is not clear, and I will try to improve it.
    – sharur
    Mar 13 '17 at 18:52
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California...

In general, has been working towards providing more and more protections to "undocumented" or "illegal immigrants", or persons who have not been paroled, admitted, deemed inadmissible, ordered to be removed or deported under federal law. For e.g., one may not be inquired into their immigration related information effective January 1, 2020:

Cal. Civ Code §1940.3

a) A public entity shall not, by ordinance, regulation, policy, or administrative action implementing any ordinance, regulation, policy, or administrative action, compel a landlord or any agent of the landlord to make any inquiry, compile, disclose, report, or provide any information, prohibit offering or continuing to offer, accommodations in the property for rent or lease, or otherwise take any action regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.

(b) A landlord, or any agent of the landlord, shall not do any of the following:

(1) Make any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.

(2) Require that any tenant, prospective tenant, occupant, or prospective occupant of the rental property disclose or make any statement, representation, or certification concerning his or her immigration or citizenship status.

Another more powerful statute is Cal. Code of Civil Procedure § 1161.4.

Additional statutes relating to the matter include, but may not be limited to: Cal. Bus. & Prof. Code § 6103.7; Cal. Civil Code §§ 1940.05, 1940.2, 1942.5, 1940.35, et seq.

And one of the more powerful civil statutes in addition to the above is:

Cal. Civil Code § 3339

The Legislature finds and declares the following:

(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.

(b) For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.

(c) The provisions of this section are declaratory of existing law.

(d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

All in all, I personally don't think this provides that they cannot discriminate per se, but you may have a better chance to proactively defend yourself, in, for example, refusing to relate immigration related information.

As a practical matter, in case one doesn't yet have a California Driver License, one may be required to provide other forms of identification to enter the contract, and one may be denied if one fails or refuses. But these statutes may provide protection from being compelled into providing, for example, the pages of a passport that could indicate these protected informations, effectively one may deny to provide the pages on VISA stamps etc.

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I'm not an attorney but it seems to me that refusing to lease housing to an undocumented immigrant, who meets all other requirements and is only an Occupant, based solely on their immigration status is nearly equivalent to refusing to sell other necessities such as food, water or clothing to a person simply because of their immigration status. Or perhaps even worse, refusing to sell those necessities to a Citizen who is buying those necessities with or for an undocumented immigrant.

There are a couple of problems with this view.

A) There is no requirement for a landlord to rent to any particular person (or for that matter to sell food, water, clothing or other necessities to a particular person). There are only (in the US, under federal law, I will research PA law later and update if necessary) restrictions on certain categories that a landlord cannot use to discriminate or screen tenants.

B) Immigration status is not a legally protected category. It is often confused with "national origin" or "citizenship" which are protected categories but are different from immigration status.

Immigration status is whether or not an individual has the legal right to remain in the country indefinitely. National origin is the country in which an individual was born. Citizenship is to which nation an individual belongs. If one was born in say, Norway, but later emigrated to the US and received a green card, their national origin would a) still be Norwegian, and b) not be legal to discriminate against. If one was born in say, Norway, and traveled to the US on a 30-day VISA, then it would be completely legal to refuse to rent a house to them on say a 12-month contract.

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  • Given B, would it then be legal for a restaurant, for example, to refuse to serve an undocumented immigrant? If not, what is the civil rights or discrimination law(s) that applies there but doesn't apply to housing? If yes, at what point does the 14th amendment apply in terms of guaranteeing basic rights for all persons? (I suspect this may require a separate question but I find it the logical consequence of your answer)
    – Genaro
    Mar 14 '17 at 5:07
  • I think it does require a separate question. But yes, it would be legal to refuse to serve an undocumented immigrant (there is the question of do you require all patrons to prove their documentation status, and if not, how do you determine who to question and refuse, which could be illegal as it could be based on race, which is a protected category, and so basing this requirement to prove ones immigration status on race would be illegal). The law you want would be the Civil Rights Act of 1964, and I'm sure it's been amended by later laws.
    – sharur
    Mar 14 '17 at 16:07
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Jurisdiction: England and Wales

In E&W, not only is it legal, a landlord must refuse a tenant who lacks the correct immigration status, pursuant to Section 22 of the Immigration Act 2014. This is known informally as "right to rent" checks.

In R. (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department, the Court of Appeal overturned the High Court's declaration that right to rent checks were incompatible with Articles 8 and 14 of the European Convention on Human Rights.

Note however that landlords should proceed very carefully and make sure that the applicant genuinely is disqualified to rent, otherwise they risk breaching Section 13(1) of the Equality Act 2010.

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