Tenant Screening Criteria: Write It Before You List

The decision arrives as a small stack of paper on a kitchen table. Two households want the same house. One has the better income and the thinner rental history; the other has it the other way round. You would like another week. The vacancy is already running a meter, and your screening criteria have never existed anywhere except in your head.

Whatever you decide in that hour becomes your policy. If nothing was written down before the listing went up, your policy is whatever you can reconstruct afterwards — and reconstruction is exactly what a fair housing complaint asks of you, eighteen months later, in front of somebody whose job is finding the inconsistency between the two files.

That is the usual argument for writing criteria first. There is a narrower one that gets far less airtime: in a growing number of states the written page is not best practice at all. It is the condition on which you may charge an applicant a screening fee, and the penalty for skipping it does not wait for a complaint.

Where each section below was read matters as much as what it says, so it is stated rather than implied. California and Washington were read on 23 August 2026 at leginfo and the Washington Legislature's own RCW pages, and the federal material at the Federal Register and the eCFR, with the United States Code sections linked to Cornell's Legal Information Institute. Colorado's revisor and the Oregon Legislature would not serve their text that day, so those two states are quoted from commercial publishers and are flagged as such where they appear. None of this is legal advice, and every figure below belongs to one state and stops at its border.

Three states make the page a precondition, not a courtesy

California puts it inside the fee statute. Civil Code § 1950.6, as amended by Stats. 2025 ch. 67 and effective 1 January 2026, lets you charge a screening fee only if you offer one of two processes. The first requires that completed applications be considered in the order received, that "the first applicant who meets the landlord's established screening criteria is approved for tenancy," and that "the landlord's screening criteria shall be provided to the applicant in writing together with the application form." The alternative is simpler and dearer: refund the whole fee to everyone not selected, within seven days of picking somebody or thirty days of the application. Subsection (f) adds a duty most owners miss — where a fee was paid, the applicant gets a copy of the credit report within seven days of your receiving it.

The cap on that fee is $30 per applicant, adjustable annually for the Consumer Price Index since 1 January 1998. Read subsection (b) closely, because the statute says the landlord may make that adjustment and no state agency publishes the resulting figure. Whatever you charge is therefore a calculation you should be able to show, not a number to copy off a form.

Washington runs the same idea through disclosure. RCW 59.18.257(1)(a) requires that prior to obtaining any information about a prospective tenant you notify them in writing, or by posting, of what will be accessed, "what criteria may result in denial of the application," the reporting agency's name and address with the applicant's dispute rights, and whether you accept a reusable screening report. Then (1)(b) closes the loop: you may charge for the report only if you gave that notice. Subsection (3) makes a violation of subsection (1) worth "an amount not to exceed one hundred dollars" per prospective tenant, with court costs and reasonable attorneys' fees to the prevailing party.

Oregon sets the price of getting it wrong. ORS 90.295 requires written notice, before you accept a screening charge, of your screening or admission criteria and the process you typically follow. One charge per applicant in any sixty-day period, with refunds inside thirty days if you filled the unit before screening them. An applicant charged in violation recovers twice the charge plus $250. Oregon's own legislative site would not load on 23 August 2026, so ORS 90.295, 90.303 and 90.304 are quoted here from Public.Law's edition, which states that it carries the 2023 code plus the 2024 regular session — a 2025 amendment would not yet appear there.

None of these states asks whether your criteria are wise. They ask whether the criteria existed, in writing, before money changed hands.

What actually goes on the page

Seven headings, one side of paper, every entry a number or a document rather than an adjective.

Income. State the ratio and state what it is measured against. Where a subsidy is in play, California Government Code § 12955(o)(1)(A) makes it unlawful to use a financial or income standard "not based on the portion of the rent to be paid by the tenant," so a blanket multiple of the full contract rent is not a neutral rule there. Source-of-income protection has spread far enough that assuming its absence is now the risky move — PRRAC's compendium, updated March 2026, puts over 57 percent of voucher holders under a state, county or city law of that kind, against 34 percent in 2018. Whichever ratio you pick should fall out of the rent you actually set, not a number half-remembered from a forum.

Credit. Name the threshold, or name the specific derogatory items, and name the look-back. Colorado legislates that last part. C.R.S. § 38-12-904 provides that a landlord using rental or credit history as criteria "shall not consider any rental history or credit history beyond seven years immediately preceding the date of the application." The state revisor's own site refused every request on 23 August 2026, so that wording comes from FindLaw's published text, marked current as of 1 January 2025 — a secondary source, and one that would not show an amendment made since. Open the revisor before you rely on the figure.

Rental history. How many previous landlords you call, how far back, and what you ask each of them. Oregon's ORS 90.303, on that same secondary text, bars evaluating an action to recover possession that was dismissed or decided for the applicant, or a judgment entered five or more years back, and bars unpaid rent accrued between 1 April 2020 and 1 March 2022. Worth holding onto everywhere, because a filing on a report is not a judgment — the process runs through several stages and most of them are not outcomes, and reports routinely surface the first page of a case the tenant went on to win.

Criminal history. The hardest heading, and the one where the ground moved last year. More on it below.

Occupancy. 42 U.S.C. § 3607(b)(1) preserves "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants." Write your figure by reference to the code that sets it, citation beside the number. A limit chosen because you prefer a quiet house is a familial status problem with a citation-shaped hole in it.

Animals. Keep assistance animals out of the pet section entirely — not as a discount inside it, but as a separate line on a different subject. The reasonable accommodation duty sits in the statute at § 3604(f)(3)(B), and a statute is not what HUD withdrew last year.

Documents and conditional approval. What you require in hand, and what a conditional yes means in writing. If your version of conditional is a larger deposit, that figure still has to sit inside your state's deposit cap and holding rules — a different statute, with its own penalties, indifferent to what your criteria page says.

The guidance most screening advice still cites was withdrawn in 2025

Search for how to write a criminal-history criterion and you land on summaries of HUD's April 2016 Office of General Counsel guidance. That document is gone. HUD's OGC withdrew it effective 25 September 2025 and published the notice at 91 FR 44867 on 17 July 2026. The Office of Fair Housing and Equal Opportunity withdrew a parallel list effective 17 September 2025, published at 91 FR 17291 on 6 April 2026 — the 2022 implementation memo, FHEO-2020-01 on assistance animal requests, the 2013 service animal notice and the 2024 digital advertising guidance among them.

The sentence owners most need sits in the FHEO notice rather than the OGC one, printed directly beneath its table of withdrawn documents: "Any actions that do not comply with the text of the Fair Housing Act continue to be subject to enforcement by the Department." The same paragraph adds that complainants may file a civil action in an appropriate federal district court or state court within two years of the alleged discriminatory housing practice. The guidance was an interpretation. The statute it interpreted was not touched.

The discriminatory effects regulation is a separate thread and still live. 24 CFR § 100.500 is still in the Code of Federal Regulations with its three-step burden-shifting structure intact; the eCFR version history read on 23 August 2026 shows its last amendment on 1 May 2023 and no removal. HUD proposed striking subpart G on 14 January 2026 at 91 FR 1475, and a supplemental proposal published 10 August 2026 — this one aimed at the parallel Title VI regulations — reopened that comment period until 9 October 2026. Whatever becomes of the rule, the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015) that disparate impact claims are cognizable under the Act, and a rescinded regulation does not undo a holding.

For a two-unit owner the translation is short. The individualized-assessment approach that guidance described no longer comes with a federal document you can hold up in your defence, but it remains the cheapest way to write a criminal-history criterion you can explain to a stranger: what conduct, how recent, why it bears on this tenancy. Several states put their own version into statute anyway. Colorado's § 38-12-904, on that same published text, bars an arrest record from any time and any conviction older than five years, excepting a named short list — methamphetamine manufacture and distribution, possession of the materials for making it, offences carrying sex offender registration, and certain crimes against the person.

The exemption that reads better than it works

Somebody will tell you the Fair Housing Act does not apply to a small owner. The provision behind that claim is real and narrower than the version that gets repeated. 42 U.S.C. § 3603(b) exempts a single-family house rented by a private owner of no more than three such houses, and units in a building housing no more than four families where the owner occupies one of them.

Four things it does not do. It expressly does not reach § 3604(c), so your listing language is covered no matter how few doors you own. The single-family branch applies only where the house is rented "without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman" or of anyone in the business of renting dwellings — whether a large listing platform sits inside that phrase is not answered on the face of the statute, and it is a poor thing to bet a policy on. 42 U.S.C. § 1982, read in Jones v. Alfred H. Mayer Co. (1968) to reach private conduct, carries no exemption for racial discrimination in property. And your state act, which is what a complaint most likely arrives under, usually has a narrower carve-out or none.

Order received, not best qualified

The instinct in a first vacancy is to hold applications open for a week and then pick the strongest household. California's first option forbids that shape outright: considered in the order received, first qualified approved. The reasoning has nothing to do with California.

"Best qualified" is a comparison. "Meets the criteria" is a test. The comparison is the thing you cannot document, because the reasoning lives in your head and the losing applicant's file holds no sentence explaining the loss. The test leaves a file that either matches the page or does not, and anyone can check which.

So the criteria are not there to justify a rejection. They are there to end the search. When the first complete application clears the page, the ones behind it never get compared to anything — which is the whole point, and it fills the unit sooner than a week of collecting ever does.

Denying somebody, on paper

Every denial reason has to be a sentence that already exists on the criteria page. If it is not there, you amend the page before the next vacancy or you do not use the reason. That one rule does more work than any wording you can pick.

The form of the denial is separately regulated in several places. Washington prints its adverse action notice inside the statute at RCW 59.18.257(1)(c) — a checkbox form covering rejection and each flavour of conditional approval, including an increased deposit, a qualified guarantor and increased rent, with the reporting agency's details wherever a report contributed. Colorado's § 38-12-904 requires a written notice of the reasons for the denial and, where a consumer report was obtained, a copy of that report with an advisement of the applicant's right to dispute its accuracy at the reporting agency, delivered not more than twenty calendar days after the decision. Oregon puts the duty in a section of its own: ORS 90.304 requires a written statement of one or more reasons for the denial within fourteen days, and hands the applicant $100 if it never arrives.

Layered on top of that is the federal Fair Credit Reporting Act, which imposes its own adverse action duties whenever a consumer report contributed to the decision. Separate mechanism, separate required contents, and satisfying a state form does not discharge it.

The page is shorter than you think

One side of paper holds all of it: the income ratio and what it is measured against, the credit threshold and look-back, how many past landlords you call and how far back, the conviction categories and window, the occupancy figure with its code section beside it, the documents required at application, and what a conditional approval means in dollars. Assistance animals appear nowhere on it, deliberately.

The only maintenance rule that matters is timing. Change it between vacancies, never during one, and keep the superseded versions with their dates. Two different pages applied to two applicants for one unit is the exact fact pattern this whole exercise exists to prevent.

The page is not there to make you look careful. It is there so that in eighteen months the answer to "why them and not us" is a document rather than a memory.

Warren Ashby is not an attorney. This describes how these statutes are written and where to find yours; it is not legal advice about your unit or your applicants.