How to Avoid Discrimination Based on Public Assistance

By Kimberly Rau, MassLandlords

Massachusetts is one of only a few states that prohibit discrimination based upon whether an applicant receives public assistance. If you have been reading MassLandlords content for a while, you probably already know that the only appropriate answer to “do you take Section 8?”is “yes, of course I do.”

In Massachusetts, discriminating against someone because they receive housing subsidies, or other forms of public assistance, is illegal. But don’t stress! Public subsidies can be learned and mastered so they’re an asset to your business.
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But there are other forms of public assistance besides Section 8, and making sure you’re doing right by your potential tenants across the board is important.

An Overview of Types of Housing Assistance

Section 8

Also known as the Housing Choice Voucher Program, Section 8 works in one of two ways: either unit-based (in other words, your rental units are approved for Section 8 already and available to anyone with the voucher), or individual-based (tenants who receive Section 8 apply for any available unit). If you’ve got unit-based Section 8 rentals, you’re already well familiar with the program. But if you’ve never had an applicant with Section 8 before, you might be caught off guard.

We recommend you review our entire Landlord’s Guide to Section 8. But in a nutshell:

  • you cannot deny someone a rental because you do not want to participate in the Section 8 program;
  • you cannot say you don’t accept Section 8 because your unit will not pass an inspection;
  • you cannot reject someone by citing a requirement (“I want to rent to you, but I don’t want an annual inspection.”)

Section 8 can be a bonus for landlords. Tenants who receive Section 8 typically stay longer than tenants who do not, and you are guaranteed your rent during their tenancy (the government pays a portion, as does the tenant, but the tenant must pay their portion to keep receiving the government benefit). Yes, you may have to wait if there is a government shutdown, but you will be paid when things open back up.

The Massachusetts Rental Voucher Program

Typically referred to by its acronym MRVP, the Massachusetts Rental Voucher Program operates a lot like the Section 8 program, but with some key differences. MRVP offers both project- and tenant-based subsidies. Like Section 8 providers, regional nonprofit housing agencies and local housing authorities administer this program.

The subsidies offered through this program are state-funded, and, like Section 8, you cannot turn someone way because they receive this assistance.

RAFT, ERAP, ERMA and HomeBASE

There are multiple programs that aim to help those experiencing homelessness, or who are at risk of becoming homeless, get into or remain in stable housing. Unlike Section 8 and MRVP, these are one-time subsidies that do not necessarily have to go to rent.

RAFT stands for Residential Assistance for Families in Transition and is a state-funded program designed to help those experiencing homelessness or in danger of losing their housing. Funds can cover rent arrears, a deposit on a new residence, future rent payments, or transportation and furniture. Section 8 recipients are not eligible for this program. Some eligibility requirements have been relaxed during the Covid-19 pandemic.

Emergency Rental and Mortgage Assistance, or ERMA, is a Massachusetts program that was created to address housing issues due to Covid-19. Funds are meant to cover rent or mortgage arrears, and some future payments.

The Emergency Rental Assistance Program, or ERAP, is a federal program that was announced in May 2021 in response to the Covid-19 pandemic. It specifically targets tenants who are at risk of losing their housing due to impacts from the coronavirus pandemic. Subsidies can go to arrears, future rent payments and past utility bills.

HomeBASE is geared toward families in emergency shelter situations, and is distributed as a one-time payment with funding limits. Families who receive HomeBASE may also receive RAFT.

You may not deny someone a tenancy because they receive these forms of assistance. However, you should remember that these are not ongoing subsidies. You will want to make sure your tenants with temporary sources of income can cover their rent for the term of the lease. This is the same tool you will want to use if your tenant is receiving unemployment assistance or temporary disability insurance payments.

Factor in SNAP

Formerly known as food stamps, the Supplemental Nutrition Assistance Program (SNAP) is a federally funded program that provides grocery assistance for qualifying families or individuals. While this is an electronic (not cash) benefit, this reduction in a person’s grocery bill may allow them to afford more in rent.

If someone is applying for an apartment and does not initially look like they will meet income requirements (typically three times the monthly rent in income), but they volunteer that they receive SNAP, ask them to furnish proof of their benefit amount. Factor that in to your calculation to see if they qualify.

Ask for Proof of Ability to Pay, Not Wages or Pay Stubs

Though it may seem like a technicality, the terms “wages” and “income” imply different things. A wage is money earned from employment. Income can come from a variety of sources. Asking for proof of wages or salary can be seen as discriminatory. You must consider all sources of income for your potential tenants.

Therefore, a paystub is not going to suffice as evidence of all forms of income. Retirement funds, a military pension and Social Security benefits are not considered “wages.” Someone on permanent disability (SSI) is probably not going to have a paycheck to show you (or at least, probably not one that will cover the entire rent). RAFT recipients are not going to have that reflected on a paystub. Our article outlining different ways you can verify your potential tenant’s income should provide you a jumping-off point.

Keep Your Opinions to Yourself

If you are interviewing a potential tenant or showing your rental, you may not yet know what forms of income your tenant has. Don’t set yourself up for trouble by discussing controversial assistance-related current events, or using offensive terms like “welfare queen.” Don’t talk in stereotypes or make jokes about people who receive SNAP or unemployment benefits. Try not to assume you know who has a standard salaried job and who is on assistance, and definitely do not behave differently toward one group or the other based on your assumptions.

Housing Assistance FAQs for Landlords

What if I am asking more rent than someone’s subsidy allows?

Your potential tenants may not know how much their housing voucher will cover. You won’t know what portion the government program will cover and how much the tenant is expected to cover until lease signing.

However, programs such as Section 8 will cover fair market rent for the neighborhood that a unit is located in. If you are not sure what the fair market rent is in your area, the Department of Housing and Urban Development (HUD) has a query tool that will help you find out.

If your rent is above FMR, you may not be able to rent the apartment to that individual. You can ask the potential tenant to have their subsidy administrator call you. They may be able to approve a waiver or adjust the renter’s share to make it work. Of course, if you are below FMR, the program is sure to pay.

Can I Deny Someone on Public Assistance for Any Reason?

You cannot deny someone a rental because they receive public assistance. However, if you have a legitimate, non-discriminatory reason to deny a tenancy, you are within your rights to do so. Examples include criminal history (you cannot deny someone based on an arrest record, but convictions are another story, as long as you are fairly applying the rule to all applicants); a conviction based around manufacturing or distributing controlled substances; credit history; and eviction history. You can read more about tenant screening here.

Is Asking for Proof of Subsidy a Privacy Violation?

In a word, no. If your tenant is using a subsidy to pay the rent, they need to be able to prove they’re getting that subsidy. You should feel confident in requesting this proof; your potential tenant will have a stock letter or standard form from their housing administrator that they can provide. The same applies for subsidies such as SNAP. If a tenant is telling you that they receive SNAP and asking you to factor that in as income, they need to be able to show evidence of that income.

Conclusion

Receiving public assistance is not a moral failing, nor is it indicative of someone’s character (or ability to pay rent). More than half of the U.S. population lives paycheck to paycheck (and 40 percent of Americans making more than $100,000 a year report living paycheck to paycheck as well), meaning many of us are one layoff or other hardship away from being in the same boat as those receiving some kind of subsidy. Treat your tenants with compassion, run the numbers, and if everything works out, move on with your screening as you would anyone else.

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