Do you use criminal records in your tenant selection process?

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If so, you’ll want to read this.

 

All levels of government should adopt requirements making it clear [that housing] cannot be denied to those with a criminal justice history, unless there is a legitimate public safety reason for doing so.”

-Deborah De Santis, President and CEO of CSH (Corporation for Supportive Housing)

ball-and-chain

 

In November last year, HUD released a memo specifically addressing a practice employed by many rental property owners and managers – the use of an applicant’s criminal records to determine eligibility for rental housing. Just today, HUD released additional guidance for housing providers, further clarifying the memo. That’s when the news media picked it up.

As expected, you’ll hear much talk out there on both sides of the issue. Some claim it’s government overreach. Others celebrate efforts to provide needed support to those reentering communities from incarceration. In my view, as a housing provider, if you’re using clear and objective criteria for evaluating rental prospects, you’re not likely to run afoul of HUD’s position. In simple language, it says:

  • Housing providers should have policies that apply to everyone, and are evenly enforced.
  • An arrest history is not the same as conviction history. Simply because someone was arrested for a crime does not mean he/she committed the crime.
  • If a housing provider considers criminal background when evaluating potential tenants, the housing provider should not have a blanket “one-strike” rule that fails to take into consideration the type of crime, the length of time since the crime was committed, and the applicant’s actions/activities since the crime.
  • Applicants should have the right of “due process” when it comes to the landlord’s qualification criteria. In other words, the applicant should have the opportunity to explain extenuating circumstances, and have the landlord reconsider its decision.
  • Some crimes can be “one-strike” offenses, provided the housing provider is able to justify their policy protects the safety of others, and/or the property.

One important piece of HUD’s guidance on this issue is contained in the following excerpt from HUD’s FAQ on the matter:

…when owners make the decision to reject an applicant on the basis of a criminal record, the owner must provide the applicant with a written rejection notice.  This notice must state the reason for the rejection, advise of the applicant’s right to respond to the owner in writing or to request a meeting within 14 days to dispute the rejection, and advise that persons with disabilities have the right to request reasonable accommodations to participate in the informal hearing process.

Since most of us already provide written notices to prospects when we deny their applications to rent, this shouldn’t be much of a burden. We simply need to remember to inform the prospect of his/her right to request a meeting to dispute a rejection based on criminal history. So far, our credit reporting agency has not, to my knowledge, amended our “Adverse Action Notice” to include such a provision. Until they do, should the need arise, we’ll be adding language to comply with HUD’s rule.

How do you view criminal background information when evaluating a prospective tenant? Will this new guidance change your policies or procedures? If so, how?

 

 

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2 thoughts on “Do you use criminal records in your tenant selection process?

  1. Judy
    George Trombley - 2 years ago

    Hey Judy,

    Did they add felons to the protected classes?

    Maybe they should as I can see this being a big bucket of worms with property managers deciding not to rent because of the felony and then being sued over it. Who has the burden to provide the court records. Maybe this will clean up the system. I had a problem with an HOA not wanting to allow a tenant into a high rise condo a few months back because someone with a similar first name with the same DOB committed an armed robbery in the state of Texas. Christy and Christine were the first names. Same DOB, what a mess. If the records of the criminal had a photo attached to it since tax id numbers are not used by the Department of Corrections, it could help.

    George

    1. Judy
      Judy - 2 years ago

      All good ideas, George. No, convicted felons have not been added as a “protected class” under federal Fair Housing Law. However, it’s well-established that people with criminal histories have a really hard time finding housing. This rule is meant to guide housing providers in making sound, logical decisions. A blanket policy disallowing someone with a criminal background from renting is not logical, nor is it based on sound business judgment. We are to take into consideration the type of crime, length of time since the crime was committed, and what the individual has done since incarceration. Crimes like drug manufacturing and sales, rape, murder, arson…those are all crimes that, we may argue, would have the potential of risking damage to life or property. A 10-year-old DUI, although it may have been a felony, does not have the same potential for harm to our properties, owners, and renters. Thanks for reading and commenting, George!

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