On April 4, 2016, the United States Department of Housing and Urban Development Office of General Counsel issued a “guidance” effective immediately on permissible housing applicant selection criteria. This “guidance” declares what selection criteria will be deemed discriminatory under the Fair Housing Act. Based on their study of arrest and incarceration rates of blacks and latinos being disproportionate to their percentage of the general population, it will now be deemed discriminatory to use arrest records as a criteria for denial of a rental applications. Convictions, however, may be used as a selection criteria if the landlord takes into account the “nature and severity” of the offense, and the length of time since the conviction. HUD recommends that landlords perform an “individualized assessment of relevant mitigating information” such as the “facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the offense; evidence that the individual has maintained a good tenant history … and evidence of rehabilitation efforts.”
HUD stated that the Fair Housing Act does not prohibit denial of housing based on a conviction for the illegal manufacture or distribution of controlled substances.
Landlords should update their screening procedures to disregard the following
2. Misdemeanor convictions
3. Any adjudication that is other than guilty, such as adjudication withheld, nolle prosse
4. Convictions for possession of drugs or drug paraphernalia.
5. General felony convictions over ten years old ( you should particularize offenses that directly relate to the safety of the leased premises and other tenants)
Click here to read the entire HUD Guidance Statement.
Comments from attorneys and landlords are encouraged.