There are over 70 million Americans with arrest records. By providing rentals for felons, you can increase the pool of renters for your apartments while enjoying the satisfaction of knowing that you are helping an ex-convict get back on his or her feet. Yet there’s a bigger reason to rent to felons: By denying potential renters for criminal records, you risk getting sued for violating the Fair Housing Act. Learn how to avoid a lawsuit over housing for ex-felons, while protecting the safety of your other tenants.
Why Rent to Felons?
The U.S. Department of Housing and Urban Development (HUD) has pledged to “use the full force of the law” to protect the rights of ex-cons to housing after serving time for crimes. Under the new HUD policy, landlords may still ask tenants about their criminal history, such as whether they were convicted of a crime or what crime they committed. However, landlords do run the risk when taking this information into account that their denial of a rental application could be successfully challenged in court.
Bans that are deemed “arbitrary” or overly broad are more likely to be challenged. If you’ve held a policy not to rent to felons, your best bet is to revise this broad policy and start renting to felons so you may avoid a lawsuit.
However, you must protect the safety of all tenants. Consider the safety needs of apartment residents and determine how to balance the needs of others with HUD’s commandment to offer apartments that take felons.
Rentals for Felons: Screening Tenants Without Violating the Fair Housing Act
If you live in your property and rent four or fewer units, you are exempt from following the Fair Housing Act. Thus, you can decide personally what you are comfortable with, without worries of being sued. An attorney can help you explore the issue further and answer any questions about housing discrimination.
Assuming you do not live in the rental property, you must determine what makes sense for your property. You may reasonably decide that anyone who committed a felony five or more years ago and has not re-offended is a low risk, and screen by years passed since the incident. Or you might decide, based on a personal belief, that you are comfortable renting to those with drug or alcohol offenses, but not murderers. If you house families with children, you may not be able to rent to anyone on the Sex Offender Registry. Thus, denying a felon who is a registered sex offender would not constitute a violation of the Fair Housing Act.
It’s a smart idea to determine how you feel about renting to felons before anyone with a felony record applies. Then, you can write (and date) your personal guidelines for evaluating rental applications from felons. This creates a record in case anyone tries to challenge a denied rental application.
To reduce the risk of a lawsuit, offer the applicant a chance to explain in writing the circumstances around his or her arrest. This provides a written record, which you can use if you are sued. It also gives the individual a chance to explain what happened and may increase your level of trust that the person will be a good tenant.
The American Apartment Owners Association offers tenant screening forms*. If you want to make sure your form is compliant with the Fair Housing Act, become a member to enjoy free access to our form library.
* AAOA Disclaimer: The information provided herein is for advisory purposes only and AAOA takes no responsibility for its accuracy. AAOA recommends you consult with an attorney familiar with current federal, state and local laws.