The United States Department of Housing and Urban Development cautions housing providers to proceed with caution when adopting criminal history rules or procedures for housing decisions.
This warning comes after the Supreme Court's ruling that disparate impact claims are punishable under the Fair Housing Act.
If you are a landlord, understanding what the law has to say about convicted felons and their right to housing is important. In this article, we'll provide an overview of Fair Housing Act standards to help you understand regulations that protect people with criminal records.
Understanding the Rules
The US Department of Housing and Urban Development (HUD) protects certain classes of people from discrimination. This includes discriminatory practices based on the following:
- Familial status
- National origin
Although the HUD permits landlords to conduct background checks on potential tenants, it has issued guidelines on how the Fair Housing Act applies to criminal conviction screening.
Checks on applicants' criminal convictions are frequently used as eligibility criteria for leasing accommodations. However, these checks have made it more difficult for those with criminal backgrounds to find housing.
Many people who have served their time in prison and paid their duty to society nevertheless face consequences outside of the legal system because they are shut out of the property market in large numbers. In the criminal justice system, ethnic and racial discrimination are acknowledged by the HUD.
These inequalities include unequal detention rates and convictions, as well as more severe penalties for African Americans and Latinx communities in particular. These discrepancies cause these protected classes to bear an unfair disadvantage, which is against the Fair Housing Act. HUD has therefore issued guidelines to alleviate this housing barrier.
Are Those with a Criminal Record Protected?
The Fair Housing Act could be violated by adopting arbitrary or generalized criminal-based regulations or limitations because people with criminal histories disproportionately affect people who typically fall under protected classes under the Act, even though they are not considered a protected group under the Act.
Let's put it this way: The HUD's recommendations are not intended to forbid housing providers from developing criminal history-based rules or procedures, but it makes it clear that they should do so with care and in accordance with nondiscriminatory objectives, such as keeping other tenants safe.
What Does the HUD Prohibit?
The HUD's guidelines prohibit the denial of lodgings by private housing providers or public housing agencies based purely on their arrest records. It also urges property owners not to set blanket prohibitions in the form of a strict criminal history policy in place that denies anyone with a record in the criminal legal system from qualifying for housing.
Furthermore, the guidelines also warn property owners running background screenings to check one person's criminal record while not running those same checks on another person when it comes to real estate-related transactions. The housing provider violates the Fair Housing Act if his or her behavior concerning the rejection of a housing application can be proved to be discriminatory.
Can You Deny Housing?
As we have mentioned before, it is possible to deny someone housing based on their conviction record. However, there must be legally sufficient justification, or the housing provider is seen as being discriminatory.
This means that you cannot base your denial on speculation or go by what you think - you must base your denial on hard evidence.
Your denial must offer proof that the landlord has a significant, reasonable, and non-discriminatory interest in denying the request for accommodation.
Moreover, you must be prepared to differentiate between criminal behavior that poses a verifiable risk to the safety of residents or property and criminal conduct that does not, according to the housing policy.
Two permanent exclusions are mandated by HUD regulations controlling certain federally assisted housing. These include the following:
- Applicants that must register as sex offenders for the rest of their lives.
- Those who have been found guilty of producing methamphetamine on federally assisted properties.
The Dos and Don'ts
We understand that navigating the Fair Housing Act can be confusing, which is why we have drawn up a list of dos and don'ts when you receive an application from a potential tenant who has a criminal history.
- Take care when drawing us criminal record policies, ensuring they cannot be seen as discriminatory.
- Make sure you're looking at the nature, seriousness, and reason for the criminal record before denying a person housing. A one-time drug possession might not be grounds for denial, for example.
- Ensure that when you reject someone's application based on their criminal records, you do so because they present a risk to the safety of others.
- Consider how much time has passed since the crime was committed.
- Ensure that all applicants are treated fairly, regardless of whether they fall under a protected class or not.
- Be sure to familiarize yourself with the law and regulations in play, ensuring that you are fully compliant.
- Never include a blanket ban on people with criminal records.
- Don't exclude someone based on their arrest records alone.
- Avoid broad or unclear policies.
- Never include a clause that may be seen as discriminatory in any way.
- Don't treat applicants differently if they have a criminal record.
- Avoid using criminal history prohibitions differently for protected classes.
As a housing provider, it's important that you understand the Fair Housing Act and how it impacts the tenant screening process. Never discriminate against a potential candidate based on their criminal history, and ensure that your reason for denial is unbiased and based on a legitimate concern for property and people.
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