Renting to Tenants With Criminal Records
Using Criminal History in Tenant Screening
While it is ultimately a landlord’s decision about which tenants they will place in their rental property, there are still certain rules that must be followed. As part of the screening process, a landlord can access a tenant’s criminal record. A landlord must follow certain rules when using this criminal record to accept or reject prospective tenants. Learn what to look for in a criminal record and what to include in a criminal history policy to avoid being accused of discrimination.
9 Things to Consider When Looking at the Criminal Record
- Was the Individual Convicted?: There is a big difference between being arrested for a crime and actually being convicted of a crime. An arrest does not make you guilty of anything, so be careful if you try to reject a prospective tenant based only on an arrest.
- What Is the Offense?: What offense did the tenant actually commit? Do you understand the nature of the crime? If not, 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?
- Do the Offenses Span Multiple Years or Clustered Into One Period?: If there are multiple offenses, did they all occur at around the same time or do the offenses take place over several different years?
- Could It Put 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 in which his or her tenants can live.
- Could the Offense Influence Tenant’s Ability to Pay Rent?: Will the tenant’s criminal history influence his or her ability to pay the monthly 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 this could be 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 which deny housing to those with specific criminal pasts that could jeopardize the safety of other tenants or of the property. When looking at a tenant’s criminal history, the landlord must also take into account the type of offense, the severity of the offense and the length of time since the offense.
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 in housing related industries should approach those with criminal records to minimize the chances of being accused of discrimination.
The specific groups that are protected under Fair Housing include color, disability, familial status, national origin, race, religion and sex. 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. In 2014, for example, 36 percent of the total prison population in the United States was African American, but African Americans were only 12 percent of the total population, and Hispanics made up 22 percent of the prison population, but Hispanics were only 17 percent of the total population. Due to this fact, HUD believes that a landlord policy which restricts tenants based on criminal history would disproportionately affect these minority groups more than prospective tenants of other races, so it could be 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 of people. 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 the other tenants at their property. Since one of the main responsibilities of a landlord is to protect the safety of their tenants and of 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 of the tenants. A general claim that anyone with a criminal history is more dangerous than anyone without a criminal history will not hold up. A specific example could be, refusing to rent to a prospective tenant who is a convicted sex offender because it could put your other tenants at risk.
Landlords do have the right to refuse to rent to prospective tenants who have 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 tickets will not likely pose an increased threat to other tenants, but an individual who is a convicted drug dealer could.
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 is 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 is able to prove that they have a legitimate reason for having their criminal records policy in place, then it is now up to the accuser to prove that there is another, less discriminatory way, for the landlord to achieve this goal. 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 offenses 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 he or she treats tenants with similar criminal records differently. If two prospective tenants have similar criminal pasts, but are 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 you to be accused of and potentially convicted of housing discrimination. Another example of intentional discrimination during the tenant screening process would be telling someone who sounded African American over the phone that their criminal record would disqualifying them from renting your property, but allowing someone who sounded Caucasian over the phone to view the property despite having a similar criminal record.
It is up to the prospective tenant to provide evidence to prove that the landlord discriminated against him or her because he or she is a member of a certain group and treated other prospective tenants with similar criminal histories differently because they belong to a different race or group. The landlord will have to provide evidence to prove that there is some other factor, besides race, that caused him or her to rent to one tenant and not the other. The landlord can still use other qualifying standards, which are not considered discriminatory, in order to choose a tenant, 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.