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Tenants with a criminal history

By: Brougher, Desiree on in

For years you have been told that by treating all people similarly, you can avoid Fair Housing Act violations.

However, in 2016, HUD’s Office of General Counsel stated that a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. So now what?

According to HUD’s report citing U.S. Department of Justice and U.S. Census Bureau data, African Americans and Hispanics are arrested, convicted and incarcerated at rates higher than their share of the general population. Consequently, disqualification for housing based on criminal convictions is likely to have a disproportionate impact on minorities.

Where a policy or practice has a higher adverse effect on individuals of a particular race or national origin, the policy or practice is unlawful under the Fair Housing Act if it does not serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect. HUD explains in its report that this interest cannot be “hypothetical or speculative,” “bald assertions based on generalizations or stereotypes” are not sufficient. One must be able to provide evidence proving both that the housing provider has a substantial, legitimate, nondiscriminatory interest supporting the policy and that the policy actually achieves that interest.

A good policy will be tailored to consider the nature, severity and timing of criminal conduct, and will accurately distinguish between criminal acts that suggest a risk to resident safety or property and conduct that does not. Further, a case-by-case evaluation of relevant mitigating information is likely to have a less discriminatory effect than blanket bans that do not take such additional information into account. Therefore, to minimize liability, there are questions one should ask beyond whether an applicant has a criminal history.

It is important to note that persons with criminal records are not a protected class under the Fair Housing Act. If it were a protected class, landlords and property managers wouldn’t even be permitted to consider whether the tenant has a criminal history, just like they can’t consider my gender or race. What the Fair Housing Act forbids are housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. It does not prohibit housing providers from considering appropriate information when making housing decisions, but arbitrary bans are likely to lack a legally sufficient justification.

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Comments (4)


  • Laurie Wightman   April 27, 2018 at 1:59 pm

    What the heck does this actually really mean? The article gives not real guidance or examples. It is full of doubletalk.

    Reply to Laurie Wightman
  • Andrew Wetzel   April 27, 2018 at 3:50 pm

    While I agree with, support and have taught classes on Fair Housing, I think that some of the rules, especially those recently presented in this forum, such as suggesting that an owner cannot ending a lease without “cause” even after it converts to month-to-month, have made it nearly impossible to know what to without fearing the mighty hand of a government which seems inclined to favor tenants and buyers over property owners who have so much to risk both in terms of dollars AND the law. It has become increasingly riskier and more costly to try to own investment units. So sad.

    For example, in Delaware County, many refuse to accept Section-8 housing vouchers because it seems that many using the voucher are just bad tenants. Look at neighborhoods dominated by rental housing. The reaction is to not advertise the voucher as an option but to do so “under the radar”. Bottom line: abuses to what should be a good program largely go unpunished which stigmatizes the program for those who really need the assistance. Of course some/ much of this falls on landlords greedy for the high subsidy that the “open market” does not seem to offer.

    As far as this specific PAR article, if a person commits a crime and is fully adjudicated AND found guilty, why should they get a pass just because it is POSSIBLE that they were adversely impacted by something other than what they actually did? We need to hold people accountable for what they did and stop making excuses. Giving some a “pass” is really “reverse discrimination.

    Rather than placing the burden on landlords and sellers to ignore documented issues, why not look at the underlying causes that make certain groups disproportionately do bad things so that we can all be judged solely by the content of our character?

    Reply to Andrew Wetzel
  • Andrea Balkiewicz   May 2, 2018 at 9:19 am

    This doesn’t seem very fair to the landlords though. So what it’s really saying is you can do a background check, but no matter what you find you better let them in because if not you’re discriminating? This is crazy. A landlord should have a right to not want a felon in his/her house, or someone with a criminal record if he/she chooses. Isn’t it better for the neighborhood too? The law shouldn’t completely take away a landlord’s rights. They aren’t the ones fixing the homes or dealing with these problems. This is what happens when you’re held accountable for your actions, no matter what race you are. You can’t say it goes for everyone except these two races. How is that fair??

    Reply to Andrea Balkiewicz

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