What if a landlord wants to exclude applicants who have been convicted of other crimes? Other than the safe harbor addressed above, the HUD memo does not specify what types of criminal convictions would warrant a denial to rent.
However, the HUD guidance does provide some general guidelines which landlords must consider if they choose to go beyond denial of applicants convicted of illegal manufacture or distribution of controlled substances: Finally, the guidance states even if a Landlord’s use of criminal background checks is narrowly tailored by taking into consideration the nature and severity of the crime, the length of time since conviction occurred, and where individualized assessments are carried out, a Landlord” Based on this guidance from HUD, the only sure way a Landlord can avoid fair housing liability if he/she wants to consider an applicant’s criminal history is to limit the policy to exclude only applicants with prior convictions for illegal manufacture or distribution of controlled substances. If a landlord wants to deny an applicant for any other convictions, the landlord must be able to prove that the particular policy is necessary in order to achieve a substantial, legitimate, non-discriminatory interest, and that there is no less discriminatory way to achieve this interest.
The HUD guidance states that due to the higher than average incarceration rates among certain races (Hispanics and African Americans) in the United States relative to their percentage of the total population and when compared against the incarceration rates of non-Hispanic Caucasians, the use of criminal history to deny housing can cause a disparate impact on these particular races.
Can Landlords take into account the criminal background of applicants as part of their screening criteria without violating fair housing laws?
This latest HUD guidance does confirm that there is one “safe harbor” available to landlords: If a landlord uses criminal background checks and only excludes applicants who have been convicted of the illegal manufacture or distribution of a controlled substance, a landlord will not run afoul of fair housing laws.
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This is because the Fair Housing Act specifically states that landlords do not have to make housing available to persons with such a conviction.