What the Latest Fair Housing Guidance on Criminal Background Checks Means for Real Estate
HUD’s guidance released on April 4, 2016, states that as many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort. When individuals are released from prisons and jails, their ability to access safe, secure and affordable housing is critical to their successful reentry to society. Yet formerly incarcerated/non-convicted individuals encounter significant barriers to securing housing, because of their criminal history.
While persons with criminal records are not a protected class under the Fair Housing Act, HUD’s guidance maintains that criminal history-based barriers to housing have a disproportionate impact on minority groups. Because minorities are a protected class under the Fair Housing Act, HUD’s guidance says that creating blanket criminal-based policies and restrictions could potentially violate the Fair Housing Act.
In light of HUD’s Guidance, please consider the following:
- You may still deny an applicant based on other factors in your criteria, i.e. if they do not qualify financially or have unfavorable rental history
- Eliminate policies that require denial of all ex-offenders regardless of criminal history or exclude applicants based solely upon arrest records.
- You must perform an individualized assessment on the applicant, but maintain certain guidelines and apply them evenly
- Screening criteria reflects a willingness to look into individual circumstances such as:
- The facts surrounding the criminal conduct
- The age of individual at time of conduct
- Evidence the applicant has maintained good tenant history before or after the conviction or conduct and
- Evidence of rehabilitation efforts
- Review screening policies for the following:
- Give greater weight to convictions for violent offences than non-violent offenses
- Give greater weight to convictions than arrests or
- Give less weight to criminal activity that occurred years ago
- You may exclude an applicant who was convicted of the distribution or manufacture of drugs without further inquiry
- Provide updated fair housing training for on-site staff and refresh resident screening policies.
Chuck Sheldon is the President of the Apartment Association of NM, Owner and Qualifying Broker for T & C Management, LLC. Contact us or your attorney for more information.
T & C Management, LLC
1701 Moon St. NE | Suite 400
Albuquerque, NM 87112