Choosing a Tenant: What You May Ask, and What the AGG Forbids

Two rulebooks apply at once: the AGG (Allgemeines Gleichbehandlungsgesetz) and data protection (DSGVO).

AGG. §19(1) AGG bans discrimination on race or ethnic origin, sex, religion, disability, age or sexual identity in Massengeschäfte. Helpfully for you, §19(5) s.3 says letting housing for non-temporary use is generally not a Massengeschäft if the landlord lets no more than 50 flats. But §19(2) applies regardless: discrimination on grounds of race or ethnic origin is unlawful in any letting. §19(3) permits differentiation to maintain socially stable resident structures – a narrow exception, not a licence.

Consequences under §21 AGG: removal, injunction, damages and compensation for non-financial harm, claimable within two months. And §22 shifts the burden of proof once the applicant shows indications – paired testing by tenant associations is a real thing.

What you may ask – and when. Data-protection guidance favours a staged approach:

• At the viewing: name and contact details only. No ID copies.
• Once someone is seriously interested: number of occupants, income / economic capacity, whether insolvency proceedings are pending, and whether there are significant rent arrears.
• Only for the applicant you select: Schufa self-disclosure (they obtain it), the last three payslips or equivalent proof, ID for identification. Asking about material rent arrears in the last tenancy is defensible; a blanket Mietschuldenfreiheitsbescheinigung demand is not – no previous landlord is obliged to issue one.

Never ask about: pregnancy or family planning, marital status, religion, ethnicity or nationality, party / union / Mieterverein membership, illness or disability, sexual orientation, or a general criminal record. An applicant may answer an impermissible question untruthfully with no consequences – but lying about income or insolvency can justify Anfechtung or termination.

Practically: score every applicant on the same written criteria, keep the sheet, and delete rejected applicants' documents promptly (guidance points to a few months at most). Never keep a "problem applicants" list. A consistent, documented, income-based process is both your best tenant filter and your best defence.