In April 2016, The Department of Housing and Urban Development (“HUD”), through its Office of General Counsel issued new guidelines regarding the use of criminal records by providers of housing and real estate-related transactions in screening rental applicants. Specifically, landlords will need to take a look at their current policy and modify same as it relates to the use of criminal history in screening rental applicants. HUD determined that if a landlord’s policy or procedure regarding the use of criminal history in screening rental applicants has a disparate impact on individuals of a protected class then landlords must demonstrate that a denial of housing serves a substantial, legitimate, nondiscriminatory interest, or if such interest could be served by another practice that has a less discriminatory effect.
A landlord will essentially have to evaluate a rental applicant’s criminal record on a case-by-case basis. A landlord will not be allowed to just have a blanket policy or procedure allowing for the denial of rental applicants with any criminal record of conviction. HUD indicates that criminal arrests and even in certain cases, prior criminal convictions will not be sufficient to deny housing to a rental applicant. A landlord will ultimately have the burden of proving a demonstrable risk to the safety of other residents and/or property when denying a rental applicant housing based on criminal history or record. Ultimately, a landlord will now have to look into the particulars of a rental applicant’s criminal conviction, such as the nature, severity and time period of the criminal conduct prior to rendering a decision to deny an applicant housing. It is important to note that there is a statutory exemption from liability under the Fair Housing Act for exclusion because of illegal manufacture or distribution of a controlled substance. However, this exemption has specific limitations which are mentioned in more detail in the HUD guidelines.