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New Fair Housing Rule

How you may and may NOT consider the criminal history of a rental applicant

On April 4, 2016 HUD’s Office of General Counsel issued new guidance with warnings about the use of criminal history when considering a new rental applicant.   Specifically, the new guidance addresses the chance of discrimination by a landlord in which a landlord justifies an adverse housing action – such as a refusal to rent or renew a lease – based on an individual’s criminal history

Quoting HUD Secretary Castro: “Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population.  Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.   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.   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”

Further, a landlord violates the Fair Housing Act when the landlord‘s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.  Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification (Business necessity defense).

Policy and Practice
Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the landlord, or if such interest could be served by another practice that has a less discriminatory effect.
Disparate Impact

According to President Obama’s Department of Housing and Urban Development (HUD), the “disparate impact” theory of racism says landlords who have a color-blind practice of excluding all felons from their buildings violate the Fair Housing Act. According to federal data, such policies have a greater impact on African-Americans because blacks tend to commit crimes at a higher rate than whites.
On June 25, 2015, the Supreme Court, by a five-to-four margin, upheld the application of disparate impact under the Fair Housing Act.  This gave the go ahead to HUD and others to include the doctrine of disparate impact to interpreting Fair Housing violations.

Disparate Impact is a legal doctrine under the Fair Housing Act which states that a policy may be considered discriminatory if it has a disproportionate “adverse impact” against any group based on race, national origin, color, religion, sex, familial status, or disability when there is no legitimate, non-discriminatory business need for the policy.

According to HUD Secretary Castro:  “The fact that you were arrested shouldn’t keep you from getting a job and it shouldn’t keep you from renting a home. When someone has been convicted of a crime and has paid their debt to society, then they ought to have an effective second chance at life. The ability to find housing is an indispensable second chance in life,” Castro said.
Affirmatively Furthering Fair Housing Rule (AFFH)

But disparate impact is just a small part of a much grander effort to force “affordable housing” schemes and “diversity” on every community in the country, by order of President Obama’s ever-evolving housing rules:  (AFFH) The Affirmatively Furthering Fair Housing Rule.  This rule “gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education,”. (National Review)

The plan has three elements:

  1. Inhibit suburban growth, and when possible encourage suburban re-migration to cities. This can be achieved, for example, through regional growth boundaries (as in Portland), or by relative neglect of highway-building and repair in favor of public transportation.
  2. Force the urban poor into the suburbs through the imposition of low-income housing quotas.
  3. Institute “regional tax-base sharing,” where a state forces upper-middle-class suburbs to transfer tax revenue to nearby cities and less-well-off inner-ring suburbs (as in Minneapolis/St. Paul).

To show how extreme the policy is, another part of the AFFH set about to re-engineer housing allocations that so drastically shuffled the map that it re-assigned Chicago’s low-income housing to Dubuque, Iowa, in order to force Dubuque to take on more low-income residents. That means the government can now transport lower-income minorities from less desirable real-estate south of Chicago to nearby towns such as Dubuque.
In the July 20th issue of National Review syndicated columnist Stanley Kurtz wrote:

It’s difficult to say what’s more striking about President Obama’s Affirmatively Furthering Fair Housing  (AFFH) regulation: its breathtaking radicalism, the refusal of the press to cover it, or its potential political ramifications. The danger AFFH poses to Democrats explains why the press barely mentions it. This lack of curiosity, in turn, explains why the revolutionary nature of the rule has not been properly understood. Ultimately, the regulation amounts to back-door annexation, a way of turning America’s suburbs into tributaries of nearby cities.

Back to Landlords and Criminal History
As interesting as that history may be every landlord in America needs to make immediate changes to the ways in which they advertise, communicate, and select rental applicants.  Lawyers everywhere are working to fully understand these new issues so they can develop new guidelines for landlords.  In the meantime there are a number of things which can be immediately be done to avoid intended and unintended violation of the law.

Update Your Company Policy

  • Obtain a National Criminal History report for EVERY person who completes a Rental Application and pays any required application fee or obtain them for NO ONE.  It is clearly discrimination to order reports for some applicants but not all.
  • Update your written company policy concerning tenant selection.  (Sample Rental Application attached).
  • Update your written telephone script (Sample Telephone script attached).
  • Always have at least one witness at all rental selection interviews.
  • It may be advisable to make a video and/or audio recording of the interview.

Tenant Selection Policy Regarding Criminal History - Ignore the following

  • Misdemeanors of any kind
  • Adjudication withheld, Dismissals, Pre Trial Diversions, Nolle Prossee, Acquittal, etc. on any offences.
  • Arrests on any offenses
  • Illegal drug or Controlled Substance or paraphernalia possession or use convictions.

Examples of situations where you are “probably” safe for which to deny an applicant:

  • Felonies or illegal manufacture or distribution of a controlled substance within the last 7 years.
  • Felonies resulting in bodily harm.
  • Felonies involving intentional damage or destruction of property.

Civil Liability
This may become an opportunity for rejected rental applicants to threaten to sue a landlord.  You should consult a competent Attorney immediately if this occurs.  In the meantime a little common sense may be helpful.  For example, remember that surreptitious recording can be done by anyone today.  Assume every telephone conversation and face-to-face conversation is being recorded.  Watch what you say.
When asking about criminal history, use caution

Rejecting the Applicant

All rental applicants must meet several criteria in order to qualify.  Among them:

  • Total Household Income - at least three times the monthly rent.  Your policy may be stricter
  • Credit Reporting - Credit history must demonstrate appropriate care and concern for all financial obligations.
  • Rental History - Rental history must reflect timely payment of rent, no complaints regarding noise, disturbance or illegal activities, proper notice to vacate, and only normal “wear & tear” to the property upon vacating.
  • Criminal History - No felonies for illegal manufacture or distribution of a controlled substance with the last 7 years.  No felonies resulting in bodily harm or intentional damage or destruction of property within the last 7 years.  No sexual offenses ever.
  • Pet Policy - No pets of any kind are permitted without specific written permission of landlord.
  • Tobacco Policy - Use of tobacco permitted or not inside and/or outside the dwelling unit
  • Occupancy Requirements - The number of occupants must be in compliance with general HUD standards and guidelines for the applied for unit – 2 heartbeats per bedroom.

Any one of these criteria is sufficient to disqualify an applicant.  So, if you must advise the applicant of rejection, be sure to indicate the exact reason.

Record Keeping

Finally, it may be months before a rejected applicant threatens legal action.  By then you may not remember anything about the incident and that may put you in a precarious position.  On the other hand, if you are able to review notes of the various conversations, meetings, etc. you will be far better equipped to deliver quick and decisive evidence of those meetings.

Summary

Yes, the long arm of the law has stretched over landlords and most will see this new regulation as distorted, tortured, and entirely illogical.  Alas, none of those opinions will support your case if you are sued by a lying felon who says you discriminated or a Federal Judge who says you discriminated.  Follow a few basic and fairly easy protocols and you should be able to move forward as though nothing happened.  

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