New guidance has been issued by the U.S. Department of Housing and Urban Development (HUD) to explain legal use of evaluating criminal history when performing tenant screening for your rental properties. In clarifying what constitutes discriminatory behavior when reviewing a rental applicant’s criminal background, landlords and property managers may find they need to revisit their tenant screening criteria.
HUD enforces policies outlined in the Fair Housing Act which prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status or national origin. HUD recently examined how housing providers were using criminal history for rental applicants and wants to prevent discriminatory effects and disparate treatment that lead to adverse housing action. In other words, housing providers were seen to unfairly screen certain types of criminals or types of crimes and even deny housing to applicants based on arrest records but not convictions – and HUD created new policies to prevent this type of behavior.
In order to protect the 100 million U.S. adults that have a criminal record of some sort, HUD issued the Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions on April 4, 2016.
HUD explains how criminal history can be used in a discriminatory way be housing providers, whether intentionally or unintentionally:
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability). 9 Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability). (Section III).
HUD is now limiting the use of arrest records for tenant screening for housing providers. The guidance goes on to explain that arrest records can be incomplete and do not actually indicate any criminal activity has occurred unless a conviction has been made.
To prevent any discriminatory behavior, housing providers must create explicit screening criteria that denotes what type of criminal convictions will result in denied housing. Additionally, housing providers will need to demonstrate that deniable criminal convictions would put their residents and/or property at risk.
To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.
What HUD’s new Guidance means for housing providers:
- Arrests records are not a valid reason to deny a rental applicant housing.
- Convicted criminals may be denied housing if the reason for their convictions clearly demonstrates that the safety of your residents and/or property are at risk.
- Blanket terms in your screening criteria that say “Any criminal convictions will be denied” are now considered discriminatory and in violation of the Fair Housing Act.
The new Guidance does not make criminals a protected class, but rather establishes requirements to clearly prove why you are denying an applicant based on a criminal conviction.
Remember that a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate
Ryan Green with Apply Connect offers great advice for landlords and property managers on how to manage these new policies from HUD by following these simple steps:
- Review your policy to make sure the language is clear, and conforms to the HUD guidelines (and have your housing specialist attorney read it over).
- Educate your staff, or anyone involved in reviewing background checks, so they are aware of the new guidance.
- Consider contacting your tenant screening provider to ask about their ability to restrict records that cannot be used in the decision.
If you use integrated tenant screening services in your property management software, make sure the reports provided comply with these new policies. Rentec Direct has already taken the steps to filter our criminal background checks to exclude arrest records in order to mitigate our clients from Fair Housing enforcement and civil litigation.
Not yet a Rentec Direct user, learn more about how easy it is to start screening your tenants today by watching this short video on tenant screening.
If the tenant is not the one who eventually we found living and after as we discovered was not same person who file application and initially move in and sigb contract and he is sex offender discovered when he got in altercation with another teant , have been using pot smoking on property although not have doctors permit . How to evict such when he don’t pay rent and on question on application claim have no criminal record as he was in fact in jail 2 times f.sex probation violation discovered thereafterr and been relleased from jail due to Cov.19 The person who file application did not tell through the one who file was his relatives and on Records present tenants Have NUMEROUS use FALSE NAMES per after all records more than 12 times , this cause danger to other tenants and property future including minor kids and use of drug without permit , and more What is remedy as He Violate Probation, Identity Fraud ,accessory and causing exposing property to drugs use without concern and also Not Identify him self properly to Unemployment where he file reqhuest for Unemployment relief without disclosing actual status of his release due to Covid 19 .
Svetlana, this sounds very complex. Right now, evictions for non-payment due to the pandemic are restricted if they complied with the eviction moratorium order. And, if you accept money, that could be considered a non-verbal contract which could create a tenant-landlord relationship. I would highly recommend you contact an attorney to discuss your options. If there is criminal activity, contact the police.
I searched in DuckDuckGo “is it legal to use criminal background check for housing.“ That’s how I found this article.
This article would be better if you also included how people can report seemingly discriminatory housing actions under the Fair Housing Act.
But it appears the purpose of this site is not to give balanced information as much as to give information to protect landlords, and honestly that’s fair… that’s your apparent audience.
Being that’s the case, I hope landlords will STRONGLY CONSIDER, in our area (Boise & vicinity) landlords already have an inordinate amount of power because of the serious shortage of housing in general, and a severe lack of affordable housing in particular.
Housing prices have tripled over the last five years whether it’s rents or purchase prices.
Even so many properties that have been paid off many times over (unless the owners are fiscally incompetent) and NO UPKEEP OR UPDATES are done because they have retirement goals.
We are the new California apparently, with the explosion in traffic as well. (And I’ve lived and driven from literally one end of the country to the other & lived here for 9 years to see the difference).
“Everyone” apparently thinks they’re coming to the promised land and ruining it in the process.
Thank you for this info though; although often clear to see, it’s hard to prove when most applicants & people in general in this area are lighter-skinned.
With this drastic inflation of housing prices, a landlord or property manager can just use other discriminatory benchmarks that mask if they’re discriminating against you for literally any other status because most are requiring 3x the rent in income…
so everyone who doesn’t have an income of at least $3,000 a month (for a minimum $1,000 per month rent for only the cheapest 1-bedrooms, so that cuts out most families, especially single parents, looking for a place) is disposable & most landlords or tenants don’t care who’s on the streets as long as they aren’t.
$3,000 monthly means someone is earning $18.75 per hour minimum & working 40 hours every week with no illness or taking a break for any reason.
Few in our area are earning that much in spite of whatever education they’ve earned along the way.
My children & most I know will probably never be able to rent or buy a home of their own at $350,000 & rising daily. For a fixer upper.
Otherwise so many college grads wouldn’t be living with their parents all over this country because they can’t afford rents, even without student loans. It can’t be that all those people got a generic liberal arts degree, etc.
I agree with you! My monthly income is $8??..??! I’m 62 years old and I get SSI. I’ve never been able to own my own house and just recently bought my own used car to drive so I don’t have to beg for a ride to the grocery store. Grocery shopping is the only form of entertainment I have. About 10 years ago I tried to get a senior handicap Apt. and I was turned down they said that I had a felony on my record! … Boy, if that didn’t piss me off!!! I waited for a year for my name to get to the top of the list! And when it finally did, look what happened!!!
Brenda, if you run into this situation again, a landlord has the obligation to give you a formal denial letter (also called an adverse action letter) that contains the contact information which then allows you to request a copy of the report pulled. From there you would be able to request a database correction or see if the landlord may have inadvertently confused a similar match as being you — as criminal reports are simply a list of potential matches based on the information provided.