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Home · Property Management · Landlord Quick Tips : Member Q&A: Can I Deny All Tenants with Criminal Records?

AAOA Member Question: As an owner of a small apartment complex, I’ve had to deal with criminal activity on my rental properties in the past. I started running criminal background checks with AAOA a few years back to increase safety for my residents. I’d like to make a rule to not rent to anyone with a criminal background. Can you please provide me with how I can go about amending my rental policy for this?

Answer: There is no way to legally make a blanket policy that would exclude applicants with criminal backgrounds from renting a unit in your complex. This is especially true since the April 2016 US Department of Housing and Urban Development’s Office (HUD) released its guidance on “Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.”

HUD’s new guidance is now being used as the de facto best practices guide for handling criminal records and it clearly indicates that blanket policies should be eliminated. Although you may not be intentionally trying to discriminate against minorities, minorities may be disproportionately harmed by a blanket policy. How is this possible? Since 2004 an average of 650,000 individuals have been released from prison on an annual bases. Having a criminal background in many cases makes it extremely difficult for these individuals to access safe and affordable housing that can help them reenter society. A high percentage of these individuals are minorities, meaning more minorities would be negatively affected by your policy, even if you have no intent to discriminate. This is known as disparate impact and is a violation of the Fair Housing Act.

As a landlord you should implement policies that are the least discriminatory. However, this does not mean that you have to accept all applicants with criminal records. HUD’s guidance states you must show that you considered each individual conviction, when it occurred, and what the convicted person has done since then. If you deny an applicant based on a criminal record, you should be able to show that your decision was necessary to achieve a nondiscriminatory interest and there was no other option that would have been less discriminatory.

You may be able to deny applicants with certain types of crimes in your policy, but you must still be prepared to prove that the criminal conduct in the person’s background is directly related to the safety of your residents. We recommend avoiding this type of policy as well to reduce your likelihood of being taken to court.

 

  • Matt Johnson

    Thank goodness I am exempt from HUD laws. It’s not my fault minorities partake in criminal activity at a higher rate. This is PC run amok. What next? Saying denying applications due to bad credit disproportionately affects minorities as well. This is the very reason I would never be a landlord in a “blue” state because the democrat controlled state laws are just as bad and even worse than HUD. Hopefully HUD under Dr. Ben Carson will reverse these edicts from the Obama administration in short order for the rest of you poor landlords that are not exempt from HUD.

  • Buttyrcup

    This isn’t about red or blue states and in my opinion, Ben Carson is totally unqualified to be head of HUD. That said, a rental application should be a snapshot of several factors including eviction and credit history, employment history, income, etc. I’ve had tenants with crappy credit because of medical expenses, but had decent references, held steady jobs, and had no judgements of evictions. As a landlord, I have a right to know who is going to occupy my apartment and what kinds of things they engage in. What was the crime? How long ago? How are they doing now? As far as minorities–more caucasians on welfare and other public assistance than any other race in this country–and per capita, commit just as many crimes–go to rural America and see the stats. One wants to determine if a enter would be responsible and not bring incovenience and danger to other occupants on the property. But we’ve all made mistakes and paid for them. Imagine what it would be like if everything was closed to us because of it. I’d take this on a case by case basis.

  • Milton Trachtenburg

    I was lucky when I had an applicant with a long criminal record apply. He didn’t have a source of income sufficient to pay his rent on an ongoing basis. I did accept a tenant who had served a short term for a non-violent crime. He turned out to be one of the best tenants I ever had. Because he was grateful for my support, he took on small repairs himself that I usually had to pay for. I do not deal with HUD. The neighborhood is very upscale even though the building I own units in is old and contains low-priced studios. But, low-price is still higher than what you would pay for 2 bedrooms in a less desirable location. After 10 years, I am like the guy whose parachute wouldn’t open who is asked how he is doing as he fell. “So far, so good.”

  • Matt Johnson

    Go back and read the article, it states that the criminal record search would disproportionately affect minorities because they have higher rates of incarceration. I did pull not that out of thin air. HUD is making new laws by “interpreting” existing laws as they see fit.

  • Buttyrcup

    Matt, you are the one who wanted to bring politics into it and make this a PC slam and trash everyone who doesn’t support the rich frat boy in the White House and his minions who have no clue about the reality of life in many pockets in America. The “red” states have the highest numbers of drug addicts. Would I rent to a drug user? No. Bad credit is an indicator of inability to pay the rent or possibly a propensity to not prioritize rent. But all crimes are not the same and sometimes people make stupid mistakes. Should be on a case by case basis. Leave the politics out of it. Perhaps minorities do have a disproportionate incidence of incarceration. But I will never forget the white ex-con who lived in the building of the one-room apartments I rented in grad school who routinely disturbed in numerous ways the mostly Filipino immigrant tenants. It wasn’t until the day that I let him have a dose of my verbal response to his harassment of many of them that he stopped. The bowls of pancit and thank yous from my neighbors went on for days.

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