Renting to Tenants With Criminal Records
Using Criminal History in Tenant Screening
While it is ultimately a landlord’s decision which tenants to place in their rental property, there are certain rules that must be followed. As part of the screening process, a landlord can access a tenant’s criminal record; however, a landlord must follow certain rules when basing a tenant decision on a criminal record. 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.
What to Consider When Looking at an Individual's Criminal Record
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 Is the Offense? What offense did the potential tenant actually commit? What was the nature of the crime? If this is not clear, consult a lawyer or police officer for clarification.
How Serious Is the Offense? Did the prospective tenant have to pay a fine or serve actual jail time for the offense they committed? Did they steal a shirt from the mall, or did they shoot someone?
How Recent Is the Offense? Did the tenant commit the offense last year, or did it occur 20 years ago?
How Many Offenses Are There? Does the prospective tenant have one criminal act to consider, or do they have a long sheet 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?
Are Other Tenants at Risk? Does the nature of the crime the prospective tenant 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 their tenants.
Could the Offense Influence the Tenant’s Ability to Pay Rent? If the tenant has no past or current employment, you have the right to refuse to rent to this tenant based on their inability to make their rent payment.
Could the Offense Put Your Rental Property at Risk? A landlord has the responsibility of keeping their rental property safe. Does the tenant’s criminal record put the rental property at risk? Some examples of potential risks are arson or vandalism.
Can You Deny Housing to Any Tenant With a Criminal History?
No. 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 a tenant’s criminal history, the landlord must also consider the type of offense, the severity of the offense, and the length of time since the offense occurred.
Does Fair Housing Protect Tenants With Criminal Records?
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 Fair Housing 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 the latest data from the National Association for the Advancement of Colored People (NAACP), alhough African Americans and Hispanics make up approximately 30 percent of the U.S. population, they comprised close to 60 percent of all incarcerated people in 2015.
HUD believes that 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 discrimination down into two categories, unintentional discrimination and intentional discrimination.
Unintentional Discrimination Against Minority Tenants With Criminal Records
HUD uses a three-step process to determine if a landlord’s criminal history policy is discriminatory and violates the Fair Housing Act.
1. Does the Criminal History Policy Have a Discriminatory Effect? The accuser must provide evidence to show that the 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 can also be used. Each case is unique and, therefore, must use specific facts such as tenant records, local criminal statistics, and census data to support their claim.
2. Is the Policy Necessary to Achieve a Legitimate Nondiscriminatory Interest? It is now up to the landlord to provide evidence to prove that their criminal history policy is not a form of discrimination but, rather, a necessary policy for another legitimate reason. Many landlords claim that the reason for the 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 accceptable. Landlords do have the right to refuse to rent to prospective tenants with a history of criminal convictions; however, this policy cannot be a blanket policy that excludes any person who has ever been convicted of any offense. The policy must be specific in stating that the landlord will not rent to those with criminal convictions that could endanger the safety of the tenants or property.
For example, an individual with a history of traffic violations will not likely pose an increased threat to other tenants, but an individual who is a convicted drug dealer might.
In addition, landlords cannot refuse to rent to prospective tenants who have been arrested but not convicted because an arrest does not mean the person was guilty of any crime. Therefore, the landlord cannot prove that this individual poses any increased risk to the other tenants at the property.
Finally, the landlord must take into account how recently the crime occurred. It will be harder to justify refusing to rent to a prospective tenant if the crime occurred 20 years ago.
3. Is There a Less Discriminatory Alternative? If the landlord can prove that they have a legitimate reason for having their criminal records policy in place, it is up to the accuser to emphasize a less discriminatory approach by the landlord. This could include looking at other factors in addition to looking at the tenant’s criminal history, such as the tenant’s history of tenancy, age at time of criminal offense, or the tenant’s efforts to rehabilitate after the offenses.
Intentional Discrimination Against Minority Tenants With Criminal Records
A landlord could be accused and convicted of discrimination if tenants with similar criminal records are treated differently. If two prospective tenants have similar criminal pasts but are from two different races, and the landlord makes exceptions for one tenant and not the other, this could be a violation of Fair Housing.
For example, if all other factors are similar, renting to an Asian man who was convicted of stealing a car but refusing to rent to a Hispanic man who was convicted of stealing a car could lead to an accusation and potential conviction for housing discrimination.
It is up to the prospective tenant to provide evidence that the landlord discriminated against them because they are a member of a certain demographic. The landlord will have to provide evidence to prove that there is some non-discriminatory factor that led them to exclude a tenant. The landlord can still use other qualifying standards not considered discriminatory, such as the tenant’s ability to pay rent on time.
Denying a Prospective Tenant for Drug-related Crimes
A landlord 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. This does not include tenants who have been arrested but not convicted of such offenses or tenants who have been convicted or arrested for drug possession.
While a landlord has a legitimate right to deny housing to an individual who has been convicted of illegal drug manufacturing or distribution, if a landlord only uses this conviction to deny housing to members of a certain race, national origin or other group, the landlord can still be accused and convicted of intentional housing discrimination. This is because the landlord is using the drug conviction as a cover for racial discrimination.