As many as 100 million — or 1 in 3 — American adults have a criminal record, according to the Bureau of Justice Statistics. That number includes people who’ve been convicted, as well as those who’ve been arrested but never charged, meaning an estimated 30% of the American population have a record attached to their name.
In 2016, the Department of Housing and Urban Development (HUD) released a guidance memo to advise landlords on how to use a tenant’s criminal background information when evaluating them as a potential renter. Because criminal histories are not addressed in the Fair Housing laws, landlords have long been free to adopt their own screening policies for tenants with a criminal background.
The newer HUD guidelines, however, are an attempt to provide applicants with a criminal history better access to rental housing. HUD’s guidelines suggest that landlords evaluate each tenant with a criminal background on a case-by-case basis, and state that blanket discrimination policies against any tenant with a criminal record could violate the Fair Housing Act.
Note that while HUD’s guidelines do not have legal authority, they will influence a judge’s decision in court, so it’s important that they’re followed. Here’s what landlords need to know about screening tenants with a criminal background.
While Fair Housing laws protect tenants from discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability, they don’t extend protections to those with a criminal past.
But according to HUD, landlords could be violating Fair Housing laws when refusing to rent to tenants with a criminal record, due to “widespread racial and ethnic disparities in the U.S. criminal justice system.” The department notes that because African Americans and Hispanics are arrested, convicted and incarcerated at a rate “disproportionate to their share of the general population,” a widespread policy against renting to anyone with a criminal record disproportionately affects minority home seekers and is therefore discriminatory.
In their guidelines, HUD states that a landlord who upholds a blanket policy against renting to anyone with a criminal record could be seen as using intentional discriminatory screening practices and may be found in violation of the Fair Housing Act. Therefore, it’s important that landlords do not have policies against renting to any person with a criminal background.
If you are screening prospective tenants with a criminal record, it’s essential to understand and follow these guidelines outlined by HUD:
HUD guidelines specifically state that arrest records are not a valid reason to deny a rental applicant, saying that “arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual.”
When evaluating a criminal background check, it’s important to keep in mind that an arrest is not the same thing as a conviction. An arrest means that an individual was arrested for suspicious activity and taken into custody. Unless there is a conviction following the arrest, having an arrest record doesn’t mean the individual actually committed a crime.
A conviction, on the other hand, is the formal declaration that an individual was found guilty of a criminal offense after they’ve been arrested.
While the HUD guidelines don’t go as far as outlining specific convictions a landlord should or shouldn’t deny a tenant over, the guidelines do recommend a variety of factors that should be considered each time a landlord evaluates a tenant with a criminal history.
HUD recommends that a landlord look at each case of criminal history on a granular level, considering:
While landlords should not deny a tenant just because they have a criminal record, they can have policies in place to deny housing to tenants who could affect the wellbeing of other tenants on the property, or prevent the tenant in question from meeting tenancy obligations. Note that a landlord needs to be able to prove that such a policy or practice actually assists in maintaining the safety of other residents.
As an example, a recent assault conviction could be a justifiable reason to deny housing to a tenant, according to Nolo, a legal information e-library. On the other hand, a nonviolent conviction from years past doesn’t necessarily mean that a tenant will cause problems, and based on HUD guidelines, would likely not qualify as valid proof that a landlord’s policy of screening is justified and nondiscriminatory. In this case, a court may find a landlord to be using discriminatory screening practices based on HUD’s criteria.
Along with assessing each criminal background on a granular level and evaluating each tenant’s history on a case-by-case basis, HUD also advises landlords to use consistent screening practices for each and every tenant that applies to rent their property. Landlords should have a standard set of screening policies in place that abide by both the Fair Housing laws and HUD guidelines, and they should use those policies each time they screen a tenant, regardless of the tenant’s background.
In the event a tenant claims a landlord has used discriminatory screening practices against them, the landlord must be able to prove they haven’t by demonstrating their standardized, consistent policy of screening that shows an absence of discrimination.
To further avoid accusations of discrimination, HUD also suggests that landlords delay consideration of a criminal history until the very end of the application review, after considering all other application requirements (like employment, credit, and financial qualifications).
Similar to HUD’s attempt to provide applicants with a criminal history better access to rental housing, some cities have taken their own tenant screening laws a step further, limiting a landlord’s ability to reject a tenant based on their criminal history. Cities like Minneapolis have prevented landlords from screening based on old criminal records, while Oakland has banned screening based on a criminal background altogether.
As more cities and states evaluate and potentially update their laws surrounding criminal history in the rental application process, it’s important to stay up to date on legislation and understand how new policies could affect your property and screening policies.
The most important part of tenant screening is ensuring you have a fair and consistent screening process that you apply to each applicant. Use a tenant screening checklist to ensure your screening process is always consistent, or reference our guide to tenant screening to learn more about reviewing applications and accepting or denying applicants.
Avail offers free, standardized rental applications that help you obtain the information you need to rent your property, along with screening reports (credit, criminal, and eviction) that can be purchased together or separately, depending on your screening needs and your local laws.
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