Landlords, property managers, and renters themselves often want to know what the law says about renting to people with criminal records. Can you refuse to rent to someone with a criminal record? Is refusal discrimination? Is it illegal to deny housing to a felon?
Can You Refuse To Rent To Someone With A Criminal Record?
Current estimates say that 70 million adult Americans have a criminal record. Landlords are often unwilling to rent to offenders, yet research shows that offenders reentering society with fair access to housing and employment are less likely to re-offend.
So, is it illegal to not rent to a felon? No, it isn’t illegal to refuse to rent a home to an applicant with a felony on their record. Landlords can also refuse to rent to applicants with a misdemeanor offense on the record.
An individual with a criminal record isn’t a protected class under fair housing laws. This means a landlord can legally discriminate against prospective tenants who have a criminal record.
The Fair Housing Act makes it an offense to refuse to rent to an applicant because of their race, color, gender, religion, disability, family status, marital status, age, or national origin.
Landlords Can’t Use Blanket Bans
What landlords can’t do, according to the U.S. Department of Housing and Urban Development (HUD) is impose a blanket ban on renting to applicants with criminal records.
In guidance issued to landlords, HUD advises that blanket bans are likely to be considered discriminatory. Landlords should instead consider criminal backgrounds on a case-by-case basis.
This is because HUD considers systemic racism to be the reason minority groups have higher rates of arrest and incarceration than white Americans.
Since race is a protected class under the Fair Housing Act, landlords imposing a barrier to housing by operating a blanket “no criminals” policy may unwittingly discriminate against minority applicants, which is a violation of the Fair Housing Act.
While landlords can’t impose a blanket ban on renters with criminal records, landlords can carry out background checks and evaluate an applicant’s criminal record as part of the rental application process.
The criminal record must be evaluated against the criteria in the landlord’s screening policy, and the decision to deny a rental cannot be arbitrary.
Landlords must also be consistent when applying their policies. Approving one applicant with a particular type and age of conviction, but denying another applicant with the same background, would not be consistent.
When a criminal record is reported on a background check, landlords can lawfully decide to reject the rental application as long as they have justifiable reasons, and those reasons are clearly stated in their screening policy.
What Are Justifiable Reasons For Refusing To Rent To Someone With A Criminal Record?
To balance their rights and potential risks against the rights of prospective tenants, landlords should take professional advice before drawing up a screening policy.
As a landlord, you can’t refuse to rent to people with criminal records just because you prefer not to.
For your screening policy to be fair, you need to be able to show that the exclusion criteria in your policy reduce the risk to yourself, your property, and your other tenants.
Consider The Age Of The Offense
HUD agrees with the conclusion of a study on recidivism (reoffending) rates, showing that offenders who don’t commit another crime within seven years have the same risk of offending as someone who has never committed a crime.
While it would be reasonable to screen out offenders who were released from prison or probation less than seven years ago, a longer disqualification period would be harder to defend if a rejected applicant complained to HUD.
The exception to this is when an applicant’s background check reveals they’re a sex offender. Evidence backs up the position that sex offenders are at greater risk of reoffending, no matter how much time has passed since their conviction.
A landlord renting apartments in a complex that houses families with young children would be justified in rejecting sex offenders.
Does The Nature And Severity Of The Offense Suggest A Current Risk?
Was the offense a violent offense? Landlords can easily justify refusal to rent to an offender with a recent history of violence.
Was the conviction for personal drug use or for drug manufacture or distribution? A landlord refusing to rent to an offender convicted of drug distribution or manufacture is taking reasonable steps to protect their property from the consequences of drug related crime if the offender decides to continue their former enterprise.
But it would be harder to justify refusing to rent to someone convicted of drug possession 10 years ago, with a clean record since then, and a good rental and employment history. There’s no reason to suspect they wouldn’t be a suitable tenant.
Did the crime involve arson or other property damage? Landlords can refuse to rent to someone with a recent conviction or repeat convictions for property crimes.
Federal guidelines for local housing authorities and private landlords participating in subsidized housing programs, state that landlords can refuse to rent to individuals convicted of a drug-related crime, a violent crime, a sex offense, or a crime that threatened the safety of other residents.
Landlords basing their screening policies on federal guidelines are on safe ground.
These are just a few examples of issues landlords need to address in their screening policy. It’s also important when you’re making a case-by-case assessment to look at the applicant’s employment and rental history, and to follow up on any character references the applicant provides.
Criminal background reports are an essential tool for landlords, but they only show a limited view of a prospective tenant.
Can a felon be denied housing? Can you refuse to rent to someone with a criminal record?
Landlords have the right to refuse to rent to applicants with a felony or misdemeanor conviction as long as they carry out an individual assessment and make a decision on a case-by-case basis.
Landlords should also have a policy detailing their tenant screening criteria and make sure that the policy is applied equally and consistently to every applicant.
Charles Greg is the Co-Founder, Author, & Head Developer behind RentingtoFelons.org
With a lifelong passion for humanity.