Question of the day: If an applicant has a felony charge on their tenant screening report would you rent to them? Or better asked, should a felony charge disqualify a prospective tenant? The answer might not be so cut and dry. Knowing the criteria for approval and denial of a rental applicant with a criminal history and the regulations regarding discrimination are key to making the right decision.
When we think of discrimination we usually think of intentional acts against certain groups that limit opportunities such as education, employment, and housing. The Fair Housing Act identifies seven classes protected by law against discrimination based race, color, national origin, religion, sex, familial status, and disability.
These federal civil rights laws protect against intentional acts of discrimination such as a refusal to rent, discriminating terms or conditions, and/or denying availability to name a few. Applicants with a felony charge may or may not fall under one of these protected classes so take care to treat everyone the same to avoid even the appearance of discrimination.
DISPARATE IMPACT IN HOUSING
Understand that these federal regulations not only protect these groups from direct discrimination but also against seemingly neutral acts that result in a discriminatory impact on those protected groups. This round-about unintentional discrimination is known as disparate impact or an adverse impact.
That means, it is possible to be liable for unintentionally violating the law when you implement a policy or act in a manner that has no intent of discrimination but the ultimate effect discriminates. For example, you may have a blanket denial for applicants with any criminal history and that policy might be deemed discriminatory depending on the situation.
STATE AND LOCAL PROTECTED CLASSES
In addition to Federally protected classes, some states and jurisdictions may have additionally protected groups. For instance, state and local laws may have extended protected rights in housing for characteristics such as sexual preference, age, student status, eviction history, and even credit scores and criminal history.
Going a step further, recently some jurisdictions voted to ban landlords from investigating the criminal history of a rental applicant. As more and more states and jurisdictions modify their regulations new protected classes are created which makes keeping informed on local and state rental laws vitally important.
CRIMINAL HISTORY RENTAL POLICIES
Let’s paint a picture from perspective of reviewing a credit report. If your state or local area doesn’t have any regulation on using credit scores to make renter determinations, you likely can set that bar as high or as low as you wish. As you set that arbitrary number you may be disqualifying potentially great renters who may have had money management mistakes, suffered horrible health issues, or are paying back huge student loans. A credit score is just a number but the details tell the story.
Same is true when it comes to criminal history. A blanket automatic denial for any criminal status on a tenant screening report may make decision making easier but it might not be for the best for either party. Take time to learn the story behind the item in the report.
SHOULD A FELONY CHARGE DISQUALIFY A PROSPECTIVE TENANT?
Short answer: No For instance, a criminal felony charge is very different than a criminal conviction.
Denying housing for a previous criminal charge for which they were not convicted could be deemed a civil rights and fair housing laws violation. Think and read the tenant screening report very carefully to make sure of the final status. Many states and local areas have passed regulations that restrict denying any tenant based on arrest or charges unless it results in a conviction.
Long Answer: That Depends In creating policy or reviewing an individual criminal report, take into consideration how long ago the crime occurred. Some items on a criminal report may have happened well in the past. Typically a jurisdiction maintains records for seven years. The further back the incident occurred should have some weight in your decision making.
Know your area’s regulations as they may have changed. In 2019 for example, Portland, OR changed to require landlords to accept rental candidates who have gone three years without a misdemeanor and seven without a felony.
Additionally, there may have been extenuating circumstancing, from youthful mistakes, desperation, coercion, or any number of other factors that might have lead to a felon charge or conviction.
The last item to consider is the type of criminal activity. It is certainly a different circumstance for someone to have been convicted of voter fraud than murder. A felony conviction can come from violating fishing regulations to not wearing a mask in some areas during a pandemic. Consider if the type of crime relates to the potential renter’s ability to be a good tenant today.
This is not to say throw caution to the wind. There should be a concern to find someone on a sex offender list or convicted of a violent crime, methamphetamine production, or drug and human trafficking. Section 8 housing denies felons who are lifelong sex offenders or convicted of manufacturing meth. Some local public housing authorities can deny for violent crimes and drug trafficking and some types of fraud.
WHERE DO EX-FELONS LIVE ONCE RELEASED?
There are over twenty million ex-felons who have been released from prison facing barriers to reintegrate after their debt is paid to society. In many cases, those barriers to meeting basic needs such as housing lend itself to recidivism.
If so many landlords automatically deny access to housing based on a felony charge, we can imagine the slim opportunities for housing exist for convicted, incarcerated, and released individuals.
The Department of Housing and Urban Development (HUD) and the American Civil Liberties Union (ACLU) are working towards making public housing more accessible for ex-felons. In addition, there are many faith-based and other non-profit organizations working to provide housing help for this population. Some landlords are making policy changes giving these disenfranchised a second-chance.
SHOULD I CHANGE MY RENTAL CRITERIA?
Operating under all applicable laws, landlords have the final decision who occupies their rentals. Just make sure you follow all the rules and regulations. Your application processes should be reviewed to make sure you are not only in compliance but also are avoiding the pitfalls of both direct and unintentional discrimination practices.
Showing partiality for some equates to discrimination of others. Whatever your decision, be consistent and fair.
A blanket denial policy shouldn’t be replaced with a blanket acceptance policy – balance and discernment are key.