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Posted on April 25, 2016 by Gale Joyce

You have an apartment for rent. Maybe it’s the second floor of the four family house you live in. Will you be forced to ignore the criminal records of your prospective tenant pool? Maybe.

On April 4, 2016, the United States Department of Housing and Urban Development issued a warning to private landlords: a blanket policy or practice that rejects prospective tenants because of criminal records may be violating laws designed to prevent discrimination against certain protected classes as defined by the Fair Housing Act. Criminals, of course, are not a protected class but wholesale refusal to rent to them might still be prohibited. If the policy or practice of not renting to anyone with a criminal record has a disparate effect on any class protected under the Fair Housing Act, that policy or practice might be found to be a violation of the Act.

Landlords Must Evaluate Whether The Particular Criminal History of Prospective Tenants And Surrounding Circumstances Accurately Predict a Threat to Other Residents or Property

No. Seriously!

HUD is advising landlords that rather than adhering to a policy or practice that denies tenancy to anyone with a criminal record, landlords are required to evaluate the specific circumstances of a prospective tenant’s criminal record to determine whether there is any basis to refuse to rent to them. For example, HUD discusses a hypothetical situation where a landlord claims that its policy of refusing to rent to anyone with a criminal record is based on the need to protect other tenants. The Department outlines a three step process that would be used to determine if that policy runs afoul of the law.

First, a complaining party (the prospective tenant who was refused occupancy) or HUD must prove that the policy of refusing to rent to people with a criminal background to protect other tenants (or yourself) has a disparate or unbalanced effect on a protected class. This step must take into account national, local or state statistics on the rate of arrests and incarceration for certain protected classes. If the complaining party or HUD can prove that there is a disparate effect, the burden will shift to the landlord to defend its position.

Spoiler alert: This is where the “Wait! What?” reaction kicks in.

If the complaining party or HUD is successful, the second step is that the landlord (you) must prove that the policy that caused the rejection of the prospective tenant is “…necessary to achieve a substantial, legitimate, non-discriminatory interest of the provider [of the housing]. The interest proffered by the housing provider (you) may not be hypothetical or speculative, meaning the housing provider (you) must be able to provide evidence proving both that the housing provider (you) has a substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the challenged policy actually achieves that interest.”


So, in the case where a landlord claims that the policy is for the protection of other residents, the landlord must “…be able to prove through reliable evidence that its policy …actually assists in protecting resident safety and/or property. Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden.”


Only Arrested But Never Convicted?

The advisory goes on to say a blanket policy of refusal to rent to applicants based upon arrests without convictions will never pass muster. So, it appears, that if a prospective tenant has a history of 10 arrests for varying degrees of criminal activity but no convictions, you may not make any assumptions except that, as HUD puts it, “[a]n arrest shows nothing more than that someone probably suspected the person apprehended of an offense.”

What if the policy only excludes prospects who have prior convictions? No good. What about only certain levels of convictions? Nope. The landlord 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.”


Does that mean you have to properly assess whether and how often a conviction of auto theft predicts the commission of future crimes that endanger people or property? Maybe.

And When That Crime Happened Matters

You will also be required to prove that you accurately considered when the conviction took place since there is “…criminological research showing that, over time, the likelihood that a person with a prior criminal record will engage in additional criminal conduct decreases until it approximates the likelihood that a person with no criminal history will commit an offense.”


What if the conviction took place twenty years ago but your prospect just got out of jail yesterday? There’s probably “criminological research” on that.

If you or your team of lawyers can successfully make it to here, the complaining party or HUD will have the opportunity to prove that there was a less discriminatory way to protect the interest that you so arduously and expensively proved was legitimate. Here’s the whole paragraph right from the advisory:

Although the identification of a less discriminatory alternative will depend on the particulars of the criminal history policy or practice under challenge, individualized assessment of relevant mitigating information beyond that contained in an individual’s criminal record is likely to have a less discriminatory effect than categorical exclusions that do not take such additional information into account. Relevant individualized evidence might include: the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct; and evidence of rehabilitation efforts. By delaying consideration of criminal history until after an individual’s financial and other qualifications are verified, a housing provider may be able to minimize any additional costs that such individualized assessment might add to the applicant screening process (emphasis added).


That’s right. If there was a less discriminatory way to achieve that legitimate goal you are SOL. But, at least HUD has supplied some advice on how to save money by avoiding that expensive assessment and possible resultant federal litigation altogether! Just delay the consideration of criminal history. This seems to imply that if an applicant appears otherwise acceptable, a criminal background check may be unwarranted. That’s just my personal opinion, not a legal one. The advisory is completely without comment on what liability a landlord might incur if a criminal background check is not done or wrongly evaluated and another tenant falls victim as a result.

HUD is not without a heart though. They have carved out exceptions based on crimes they feel warrant exclusion:

Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit “conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).”37 Accordingly, a housing provider will not be liable under the Act for excluding individuals because they have been convicted of one or more of the specified drug crimes, regardless of any discriminatory effect that may result from such a policy.

Limitation. Section 807(b)(4) only applies to disparate impact claims based on the denial of housing due to the person’s conviction for drug manufacturing or distribution; it does not provide a defense to disparate impact claims alleging that a policy or practice denies housing because of the person’s arrest for such offenses. Similarly, the exemption is limited to disparate impact claims based on drug manufacturing or distribution convictions, and does not provide a defense to disparate impact claims based on other drug-related convictions, such as the denial of housing due to a person’s conviction for drug possession.

Go get your copy of Section 807(b)(4) of the Fair Housing Act and Controlled Substances Act (21 U.S.C. 802). Waddaya mean you don’t have one. No excuse. Google has a copy. Look it up!

When I first saw this, I discussed it with friends who I regard highly, newspaper publishers as it happens. We agreed immediately that it is difficult for people with criminal records to find acceptable housing. We also agreed, albeit, without doing the research, that barriers to housing after incarceration must contribute to the rate of recidivism. This is not news. I accept those assumptions. I also have respect for the complexity of the problems surrounding the criminal justice system. But implicating landlords, ESPECIALLY SMALL ONES, and expecting them to make relevant investigations sufficient to protect themselves from federal prosecution seems absurd. However, whether absurd or not, you are there.

Please pay special attention to the disclaimers all over the place that say this is not legal advice. All of the quotes above come directly from the Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. There is more to it so use the link and read it for yourself. PLEASE.

Please pass this on to EVERY landlord you know.