While landlords have the final decision on which tenants to place in their rental properties, there are certain rules that must be followed. As part of the screening process, landlords can access applicants' criminal records, but they still must follow certain guidelines when using that information. Here's what to look for in a criminal record and what to include in a criminal history policy to avoid being accused of discrimination.
The Federal Fair Housing Act has pros and cons for landlords when it comes to dealing with applicants who have a criminal past. It's important to understand what is good about the act for landlords as well as what can make managing rental properties more difficult.
Justifiable policies enforced consistently are protected.
Landlords have opportunities to prove their cases.
Those with certain drug-related convictions have fewer protections.
Reasonable protections for tenants or property are not discriminatory.
Even a minor inconsistency in enforcement could hurt a case.
Rulings can be unpredictable, no matter how strong a landlord's case.
Landlords have no protection if there is no conviction.
Defending policies from challenges can be costly and time-consuming.
What to Consider
When reviewing a prospective tenant's criminal record, there are multiple factors that need to be taken into account.
- Was the individual convicted? There is a big difference between being arrested for a crime and being convicted of a crime. An arrest does not make a person guilty of anything, so a landlord should not reject a prospective tenant based only on an arrest.
- What was the offense? What offense did the applicant actually commit? What was the nature of the crime? If this is not clear, consult a lawyer or police officer for clarification.
- How serious was the offense? Did the applicant have to pay a fine or serve actual jail time for the offense committed? Did they steal a shirt from the mall, or did they shoot someone?
- How recent was the offense? Did the applicant commit the offense last year, or did it occur 20 years ago?
- How many offenses are there? Does the applicant have one criminal act to consider, or do they have a long list of offenses?
- When did the offense(s) occur? If there are multiple offenses, did they all occur around the same period, or did the offenses take place over several different years?
- Would other tenants be at risk? Does the nature of the crime the applicant committed put other tenants at risk? Some examples could be drug dealing, rape, child molestation, or assault and battery. A landlord is responsible for maintaining a safe environment for tenants.
- Could the offense influence the applicant’s ability to pay rent? If the person has no past or current employment, you have the right to refuse to rent to the applicant based on an inability to make rent payments.
- Could the offense put your rental property at risk? A landlord has the responsibility of keeping the rental property safe. Does the applicant's criminal record put the rental property at risk? Some examples of potential risks are arson or vandalism.
Limitations to Denying Applications
A broad policy of denying housing to any prospective tenant with any type of criminal history would be considered discriminatory under the Federal Fair Housing Act. Landlords are allowed to have policies in place that deny housing to those with specific criminal pasts that could jeopardize the safety of other tenants or the property. When looking at an applicant’s criminal history, a landlord also must consider the type of offense, the severity of the offense, and the length of time since the offense occurred.
Legal Protections for Applicants
The Federal Fair Housing Act does not specifically protect those with criminal records from discrimination in housing-related activities. Rather, HUD’s Office of General Counsel has issued guidelines regarding how landlords and others should approach those with criminal records to minimize the chances of being accused of discriminatory practices.
Under the act, it is illegal to discriminate based on color, disability, familial status, national origin, race, religion, and gender. HUD believes that refusing to rent to those with criminal records could have the result of discriminating against minorities.
African Americans and Hispanics are arrested, convicted, and jailed at much higher rates than the general population. According to data from the National Association for the Advancement of Colored People (NAACP), African Americans and Hispanics make up approximately 30% of the U.S. population, but they comprise close to 60% of all incarcerated people in 2015, the most recent year for which data is available.
HUD believes a landlord policy that restricts tenants based on criminal history would disproportionately affect minority groups. Therefore, such a policy is considered a discriminatory practice.
HUD breaks this down into two categories, unintentional discrimination and intentional discrimination.
HUD uses a three-step process to determine if a landlord’s criminal history policy is discriminatory and violates the Federal Fair Housing Act.
- Does the policy have a discriminatory effect? Accusers must provide evidence to show that a policy adversely affects those of a certain race or national origin more than other groups. State or local statistics should be used to prove this point, but if they are not available, national statistics also can be used. Each case is unique and must use specific facts such as tenant records, local criminal statistics, and census data to support claims.
- Is the policy necessary to achieve a legitimate nondiscriminatory interest? Landlords must provide evidence to prove their policies is not a form of discrimination and necessary for another legitimate reason. Many landlords claim the reason for a policy is to protect the safety of other tenants at their property. This is generally considered a legitimate reason to refuse to rent to a tenant with a criminal history. However, the landlord must provide a specific reason as to why the tenant’s specific criminal history threatens the safety of the property and tenants. A general claim that anyone with a criminal history is more dangerous than anyone without a criminal history is not acceptable. Policies must be specific in stating that a landlord will not rent to those with criminal convictions that could endanger the safety of the tenants or property. In addition, landlords cannot refuse to rent to prospective tenants who have been arrested but not convicted. Finally, landlords must take into account how recently a crime occurred. It will be harder to justify refusing to rent to a prospective tenant if the crime occurred 20 years ago.
- Is there a less discriminatory alternative? If a landlord can prove that there is a legitimate reason for having a criminal records policy in place, it is up to an accuser to emphasize a less discriminatory approach. This could include looking at factors in addition to criminal history, such as an applicant’s history of tenancy, age at the time of a criminal offense, or an applicant’s efforts to rehabilitate after the offenses.
A landlord's policy is intentionally discriminatory if tenants with similar criminal records are treated differently. If two prospective applicants have similar criminal pasts but are from two different races, and the landlord makes exceptions for one applicant and not the other, this could be a violation of the Federal Fair Housing Act.
It is up to prospective tenants to provide evidence that a landlord discriminated against them because they are a member of a certain demographic. Landlords have to provide evidence to prove that there is some nondiscriminatory factor that led them to exclude a tenant. Landlords still can use other qualifying standards not considered discriminatory, such as a tenant’s ability to pay rent on time.
Landlords cannot be convicted of unintentional discrimination for refusing to rent to a tenant who has been convicted of the illegal manufacture or distribution of a controlled substance. However, denying housing only to members of a certain race, national origin, or other group based on this standard could be considered intentional discrimination.