Apartment Living BlogFair Housing › How Do I Handle Applicants with Criminal History?

Doug Chasick, President of The Fair Housing Institute, Inc.

 

Dear Fair Housing Expert,

 

We received a leasing application from someone with a criminal background. It occurred many years ago and was for a non-violent crime. We have a pretty broad policy here, so I’m not quite sure how to handle this one. Any advice?

 

– Property Manager in TX

 

 

Dear Property Manager,

 

You’re not alone. These decisions can be tricky and not always as cut and dry as they may seem. After all, the essence of fair housing is equal opportunity, equal access and equal enjoyment and multifamily pros must comply with Federal, state and local fair housing laws that govern those areas.

 

When we treat someone differently based upon their membership in one or more of the Federal and state protected classes, we can be held liable for discrimination due to different treatment. So, as long as we treat everyone exactly the same, we should be fine, correct? Not exactly.

 

 

People who have a criminal history do not constitute a specific protected class. So, we should be able to (and most of us do!) have a policy that says we don’t accept anyone with a criminal history since our job is to protect the residents and the owner of the community, right? Not anymore.

 

The 2016 guidance memo from HUD recognizes several minority groups including African Americans and Hispanics who, “are arrested, convicted and incarcerated at rates disproportionate to their share of the general population.” In other words, when a policy restricting occupancy to those persons who have no criminal history is enforced, it will have a disparate, disproportionate impact on people of color and that policy could be considered a violation of the Fair Housing Act.

 

The immediate effect of the 2016 HUD guidance memo has been the reexamination of rental qualifying guidelines with regard to criminal history. It is generally agreed that a blanket policy disallowing any and all criminal history is no longer appropriate. So, here are two considerations to keep in mind when reviewing your policy:

 

1. Adopt a policy that identifies the specific nature of a crime, severity of the crime, and how long ago the crime was committed so that you can justify the policy as being necessary to protect the other residents and the owner. HUD states, “Policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction.”

 

 

2. Don’t consider an arrest when evaluating the rental application. An arrest is an allegation of wrongdoing. Unless a conviction is obtained, it would be extremely difficult to prove the applicant represents a threat to the community; only actual convictions should be considered.

 

Here’s a sample policy, courtesy of The Alexander Company in Madison, WI:

 

Background and criminal record checks. All applicants and household members over 18 years of age will be screened for criminal history. All applicants shall disclose in their application if any household member(s) have criminal charges pending at the time of application and, if so, where and what the pending criminal charges are. A history of any of the following by any household member is cause for rejection of an application for housing:

 

I. A felony conviction or adjudication other than an acquittal of sex offenses including but not limited to forcible rape, child molestation, and aggravated sexual battery, arson, crimes involving explosives, and the illegal manufacture of controlled substances or manufacture of illegal drugs.

 

II. Within 10 years from the completion of any sentence, probation, or parole for a felony that involved damage to or destruction of property, bodily harm against a person, including but not limited to murder, homicide, manslaughter, armed robbery, aggravated assault, or any felony of violence that may establish that the applicant constitutes a direct threat to the health or safety of other individuals or to the property.

 

III. Within five years from the completion of any sentence, probation, or parole for a felony that involved stalking, weapon offenses, burglary, theft, auto theft, buying receiving or possession of stolen property, or sales or trafficking in an illegal drug or controlled substance.

 

IV. Within three years from the completion of any sentence, probation, or parole for any other felony for a crime involving the illegal personal use of a controlled substance (other than sales, trafficking, or manufacture), illegal gambling, prostitution, commercialized vice, embezzlement, or forgery.

 

V. Within three years from the completion of any sentence, probation, or parole for any misdemeanor or ordinance violation for a crime of violence that may establish that the applicant constitutes a direct threat to the health or safety of other individuals or the property.

 

VI. Within three years from the completion of any sentence, probation, or parole for any felony or any misdemeanor involving trespass.

 

VII. Except, the following shall be excluded from consideration: Juvenile adjudications that do not qualify as convictions under state law; and expunged, purged, or sealed convictions.

 

As you can see, this policy addresses the issues of severity and recency. It illustrates a focus on specifics and is clear about what will be considered in the application process. As always, any policies dealing with fair housing and other legal issues should be reviewed and approved by counsel prior to implementation.

 

To that end, property managers should evaluate neutral policies that advise treating everyone the same especially in regards to applicants with criminal convictions. As always, do your due diligence, review your state and Federal guidance and consult with your attorney to ensure you’re not compromising any laws around applicants with criminal history.

 

Doug Chasick, CPM®, CAPS, CAS, is the President of The Fair Housing Institute, Inc. and is “The Apartment Doctor”, restoring rental health to ailing communities and multifamily professionals for the past 41 years. Awarded his CPM® in 1979, and a member of the IREM National Faculty for eight years, he is a Senior Instructor member of the NAAEI Faculty, leading the Advanced Instructor Training course and NAAEI designation courses. He is the 2010 recipient of the NAAEI ACE Award, a licensed Real Estate Broker in Florida and Georgia, and a licensed Expert Fair Housing Instructor in Virginia. Email Doug at Doug.Chasick@FairHousingInstitute.com.

Doug Chasick

About

Doug Chasick, CPM®, CAPS, CAS, is the President of The Fair Housing Institute, Inc. and is “The Apartment Doctor”, restoring rental health to ailing communities and multifamily professionals for the past 41 years. Awarded his CPM® in 1979, and a member of the IREM National Faculty for eight years, he is a Senior Instructor member of the NAAEI Faculty, leading the Advanced Instructor Training course and NAAEI designation courses. He is the 2010 recipient of the NAAEI ACE Award, a licensed Real Estate Broker in Florida and Georgia, and a licensed Expert Fair Housing Instructor in Virginia.

Speak Your Mind

*

Pin It on Pinterest

Share This

Ask a Question