Question: The property has never been in Section 8. Don’t landlords have to apply for this program before accepting applicants from this program? Do Section 8 tenants pay a security deposit? Do I have to participate In Section 8? How can someone with a voucher meet my screening criteria?
Answer: If an applicant with a voucher applies for your property, the fact that you have not yet participated/been approved is not a legal reason for denial. Voucher holders have to pay a security deposit, like any other resident – see Security Deposits: Collection and Return. You may not refuse to participate in Section 8 – although you may deny a particular applicant based on your screening criteria. In addition, special rules apply during the screening process for Section 8 voucher recipients. Each of these protections is discussed below.
Section 8 fair housing protection
As of Jan.1, 2020, California law prohibits landlords from discriminating against applicants and tenants based simply on the fact that they receive a Section 8 voucher. The law that prohibits discrimination based on source of income includes Section 8 and applies to all rental housing in California. This means that you can’t deny a tenant who otherwise meets your lawful screening criteria just because they will pay with a Housing Choice (Section 8) voucher. In addition, policies that have the effect of excluding applicants who would pay with voucher, could be found to constitute disparate impact discrimination. For an overview of the Section 8 program and information about Screening Criteria/Source of Income, please see: Overview of the Section 8 Housing Choice Voucher Program and Developing Appropriate Screening Criteria for Residents.
The law also made it unlawful, as of Jan.1, 2020, to make, print, publish, advertise, or disseminate in any way, a notice, statement or advertisement that indicates that an applicant for rental housing will be declined because the applicant’s source of income includes a Section 8 voucher rent subsidy. This means that properties cannot state “No Section 8” or “We do not participate in Section 8” or state other source of income-based preferences in their advertisements.
Special screening protocol for Section 8 Recipients
Further, effective January 1, 2024, California law prohibits landlords from using the credit history of a prospective tenant with a Section 8 voucher as part of the application process without offering the prospective tenant the option, at the prospective tenant’s discretion, of providing “lawful, verifiable alternative evidence of … [their] reasonable ability to pay the portion of the rent to be paid by the tenant, including, but not limited to, government benefit payments, pay records, and bank statements.” If the prospective tenant chooses to provide such alternative evidence of their reasonable ability to pay their portion of the rent, the landlord must: (i) provide the prospective tenant “reasonable time to respond” with such alternative evidence; and (ii) “reasonably consider” such alternative evidence in lieu of the prospective tenant’s credit history in determining whether to approve the prospective tenant’s rental application. In other words, landlords are likely prohibited from obtaining and reviewing the credit history of a prospective tenant with a Section 8 voucher in the event the prospective tenant elects to provide lawful, verifiable alternative evidence of their reasonable ability to pay their portion of the rent.
Considering this change in the law, CAA updated the Application to Rent (Form CA-001) in December 2023 to allow qualifying Section 8 applicants to indicate their election of the alternative evidence option. For further information on the use of credit histories in screening rental applicants, see the accompanying instruction sheet to the Application to Rent (Form CA-001) and the Industry Insight paper – Screening Potential Tenants: Using Consumer Reports. For information about developing screening criteria and screening procedures, please see Developing Appropriate Screening Criteria for Residents.
