Published by Kartik Subramaniam
You’re a landlord and you receive an application for one of your vacant units. You get excited, looking forward to the income, but then you learn that the applicant has a criminal record. What do you do?
Maybe it matters what the crime is. You might feel comfortable renting to a nonviolent offender convicted twenty years ago. Maybe mental illness was involved and the convicted individual has demonstrably undergone successful treatment.
But what about a sex offender or someone recently convicted of running a meth lab in their last residence? Obviously the type of crime and amount of time since the conviction will impact your perception of risk. So what do you do? You want to protect your property and other tenants.
Landlords must be careful to ensure that their reaction to these situations is not perceived as unlawfully discriminatory. While no state or federal law prevents discrimination that solely targets criminal offenders, it is illegal for the practice to discriminate against protected groups such as racial minorities, regardless of intent.
On April 4th, 2016 the U.S. Office of Housing and Urban Development (HUD) announced that their interpretation of the Fair Housing Act is that any policy or practice that is “facially neutral” but has a “disparate impact on individuals of a particular race, national origin, or other protected class” is “unlawful”, unless the policy or practice is “necessary to achieve a substantial, legitimate, nondiscriminatory interest”. This is where the type of offense and the period of time since the conviction come into play. While refusing to rent to an arsonist who burned down his last apartment building can be considered legitimate, discriminating against someone with a petty theft conviction may be more difficult to justify. Especially if it turns out that you are turning away members of an otherwise protected class and you don't have uniform standards.
The last requirement is an evaluation of potential, less discriminatory, alternatives. In the event a policy is challenged and upheld as lawful, HUD or the rejected tenant can examine alternatives. The landlord does not need to search for alternatives to their legal policy—this burden falls on HUD (or the potential tenant to recommend a HUD-approved policy). But change could be prompted if HUD finds the necessary interest of the policy “could be served by another practice that has a less discriminatory effect”. This could be a mandate to include an “individualized assessment” that allows the potential tenant to prove good tenant history since the conviction, evidence of rehabilitation, etc. This may not change the decision for the individual appealing the rejection of their application, but in theory it would make the policy less discriminatory over time. And in October of last year HUD allocated $38 million to more than 100 groups to fight housing discrimination. Legal challenges to these policies should be anticipated.
So, unless you end up rejecting candidates in proportions that match your population, you could wind up on the wrong end of allegations of illegal discrimination. Thus, it is important to have a well thought out, comprehensive, consistent standard for these situations. And, if in doubt, contact legal counsel specializing in these issues.
In summary, here are the rules to keep in mind to best protect yourself: