According to the U.S. Department of Housing and Urban Development (HUD), refusing to rent based on a criminal records is a form of racial discrimination, due to racial imbalances in the U.S. justice, despite the fact that criminal history is not a protected class under the federal Fair Housing Act.
The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics under HUD’s guidelines.
While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.
About 25 percent of Americans have some kind of criminal record, which can range from felony convictions to arrests that never led to charges.
HUD says that landlords may be allowed to bar those with criminal records, but they will have to prove that such a policy is necessary for protecting the safety of other tenants, and designed to avoid illegal discrimination. This guidance recommends that landlords consider factors such as the severity of the criminal history and how long ago it occurred.
Practice Pointer: Blanket prohibitions denying applicants with criminal histories will get landlords into major trouble under the new HUD policy.
HUD’s revised guidance discusses the three steps used to analyze claims that a housing provider’s use of criminal history to deny housing opportunities results in discriminatory effect in violation of the Act.
- Evaluating whether the criminal history policy or practice has a discriminatory effect
- Evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest
- Evaluating whether there is a less discriminatory alternative
In Massachusetts, a CORI (Criminal Offender Record Information) report contains only the basic of information of the offense such as the date of arrest/conviction, disposition, court and sentence, if any. There is nothing in the CORI report showing the underlying facts of the crime and it does not include police reports.
Under the new HUD policy, landlords now have the burden of playing criminal investigator and assessing whether a crime is not truly serious.
The federal Fair Housing Act does not apply to owner-occupied rental properties of up to 4 units.
For those landlords who request criminal record information they will have to offer an applicant the opportunity to explain the circumstances of their arrest/conviction before making a final decision.
As with all rental application decisions, it’s best to make the decision based on financial considerations such as credit, income, and employment.
Whether you are the landlord or tenant looking to rent an apartment in Massachusetts, contact the Law Offices of Renee Lazar at 978-844-4095 for further guidance on navigating this policy.