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Tuesday, April 12, 2016

Denying a tenant based upon a criminal record is not Fair Housing…

On April 4, the U.S. Department of Housing and Urban Development (HUD) released a 10-page memo on the "Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions." The Cliff’s Notes version of which may be stated - Landlords and property managers who adopt a blanket policy of refusing to rent to applicants with criminal records are in violation of the Fair Housing Act and can be sued and face penalties for discrimination. You can read the entire HUD document by clicking here.

The basis for HUD’s guidance can be found in their background material, which reads in part –
As many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort. The United States prison population of 2.2 million adults is by far the largest in the world.  As of 2012, the United States accounted for only about five percent of the world’s population, yet almost one quarter of the world’s prisoners were held in American prisons. Since 2004, an average of over 650,000 individuals have been released annually from federal and state prisons, and over 95 percent of current inmates will be released at some point. When individuals are released from prisons and jails, their ability to access safe, secure and affordable housing is critical to their successful reentry to society.

Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration. For example, in 2013, African Americans were arrested at a rate more than double their proportion of the general population. Moreover, in 2014, African Americans comprised approximately 36 percent of the total prison population in the United States, but only about 12 percent of the country’s total population. In other words, African Americans were incarcerated at a rate nearly three times their proportion of the general population. Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population, with Hispanic individuals comprising approximately 22 percent of the prison population, but only about 17 percent of the total U.S. population.  In contrast, non-Hispanic Whites comprised approximately 62 percent of the total U.S. population but only about 34 percent of the prison population in 2014. Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males.

HUD found that landlords often do criminal background checks and then use what they find to refuse to rent their properties to people with backgrounds that include criminal convictions or even arrests, even if no conviction resulted from the arrest. HUD concluded that people of color and Hispanic people are statistically more likely to have had arrests and convictions at a rate that is disproportionate to their representation on the general population; thus using those records constitutes basic discrimination against them, with no actual proof of any predisposition that would prevent them from being good tenants. One exception apparently was made for those convicted of the manufacture of illicit drugs. A landlord can apparently be excused for not wanting their property to be turned into a Meth lab or a “grow house.”

Our criminal justice system is based upon is the concept of paying for your crime and the thought that the incarceration for crimes will serve as a deterrent to future crimes. While stories of repeat or habitual criminals often make the nightly news, there are few stories that document the many convicted felons who do turn their lives around and become productive citizens when they have served their time. There is a premise that the convict who has served his time will be given a second chance at a normal life within our society.  That second chance is made more difficult if that person is denied housing due to their past record. Thus, the new HUD guidelines.

If you are a landlord you need to be aware that a practice of doing a background check and then automatically denying the applicant based upon finding arrests or even felony convictions in their background will not be tolerated. The burden of proof that you did not follow that practice is on you. For the applicant, it is still up to you to provide convincing evidence that you are capable of paying the rent and that you will be a trustworthy tenant. That usually takes the form of references and employment proof and perhaps a record of making reliable payments on an apartment or wherever you’ve been living since leaving incarceration. If you believe that you have been denied solely or primarily because of your past criminal record you should contact local HUD officials and lodge a complaint.  

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