A landlord or property manager that imposes a blanket refusal to rent to any person with any criminal conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then — may be violating fair housing law.
“Disparate Effect”
New guidance from the US Department of Housing and Urban Development (HUD) aims to curtail housing discrimination against criminal ex-offenders. As HUD states, “Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.” Thus, prohibitions against renting to ex-offenders may have a disparate effect on such minority groups. (See HUD’s official guidance here: http://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf)
May Constitute Discrimination Even if not Intentional
This is the case even when a landlord or property manager may have no intention to discriminate. A policy or practice – even a facially neutral one such as not renting to an ex-offender – may still constitute illegal discrimination unless necessary to serve a substantial, legitimate, nondiscriminatory interest of the landlord or property manager, of if the landlord or property manager could adopt a practice that has less discriminatory effect.
How to Use Criminal Records in the Screening Process
Is it still legal to take into consideration a criminal record of a prospective tenant in approving an application? Yes. The use of criminal records as part of the overall tenant screening process may serve the valid business and security functions of protecting tenants and the property from former convicted criminals. But it’s important to follow some basic guidelines.
First, do not exclude prospective tenants based upon prior arrests. Only a record of conviction (as opposed to an arrest) will serve as sufficient evidence to prove that an individual engaged in criminal conduct.
Second, any such policy must consider the length of time that has passed since the criminal conduct occurred. HUD’s guidance cites to research indicating that after six of seven years the risk of reoffending by someone with a prior criminal history is about the same as a non-offender.
Third, the policy must take into account the nature and severity of the individual’s conviction. Of course, a landlord or property manager must consider resident safety and protection of property. However, any policy implemented must accurately distinguish between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.
Policy Must Be Applied Equally
Finally, it goes without saying that a landlord or property manager must treat everyone equally. Even if a screening policy involving criminal convictions is maintained, it can never be used as a pretext for unequal treatment. If a landlord or property manager refuses to rent to a person for certain convictions, then the landlord or property should not be renting to anyone similarly convicted.