ASK THE LAWYER
DEBBIE WILSON | SPRINGMAN , BRADEN , WILSON & PONTIUS , PC
Have You Reviewed Your Criminal Screening Policies Lately ?
The Department of Housing and Urban Development dropped a bombshell last April 2016 when it published a new Guidance memo on the use of criminal records in screening applicants in housing .
Essentially , HUD said it is no longer acceptable for Landlords to use arrest records in denying applicants . Furthermore , a Landlord is no longer entitled to have a blanket prohibition on “ anyone with a criminial record .” A Landlord must , instead , develop a criminal screening policy which actually assists in protecting its residents and / or the property .
HUD makes it clear that an overly broad criminal policy which leads to denial of applicants is discriminatory and a violation of the Fair Housing Act , unless it takes into account :
1 . The nature and severity of the crime
2 . The amount of time that has passed since the crime occurred
3 . The age of the applicant at the time of the crime
4 . The applicant ’ s rental history before and or after the criminal conduct
5 . Any evidence of rehabilitative efforts
Exemption ( s ): Under the April 4 , 2016 HUD Guidance , Landlords may still deny an applicant who has been CONVICTED of the illegal manufacture or distribution of a controlled substance , as defined under the federal Controlled Substances Act .
Furthermore , HUD has already recognized that certain criminal behavior may justify denial of housing . Examples include :
1 . If a household member has been evicted from federally assisted housing for drugrelated criminal activity within the past three years
2 . If a household member is currently engaging in illegal use of a drug
3 . If there is reasonable cause to believe that a household member ’ s illegal drug use or pattern of illegal drug use threatens the health , safety , or right to peaceful enjoyment of the premises by other residents
4 . If any household member has been convicted of drug-related criminal activity for manufacturing or producing methamphetamine on the premises of federally assisted housing
5 . If any household member is subject to a lifetime registration requirement under a State sex offender registration program
6 . If there is reasonable cause to believe that a household member ’ s abuse or pattern of abuse of alcohol may threaten the health , safety , or right to peaceful enjoyment of the premises by other residents .
The National Apartment Association and National MultiFamily Housing Council published a White Paper in May 2016 entitled “ Criminal Conviction Screening Policies : Best Practices to
Avoid Disparate Impact Liability .” In a nutshell , screening policies or practices which have an unjustified discriminatory effect ( even without intent ) violate the Fair Housing Act . If challenged , a Landlord may be required to prove that decisions based on criminal history actually assist in protecting resident safety or property .
HUD encourages landlords to screen for noncriminal criteria first . If the applicant meets or exceeds your non-criminal screening criteria , then it is proper to screen for criminal records / history as needed .
All landlords should create a more tailored screening policy which distinguishes between ( 1 ) criminal conduct which presents a demonstrable risk to resident safety or property , and ( 2 ) criminal activity which does not . If you have not already done so , it is important to contact your attorney for a full screening policy review . www . aamdhq . org MARCH 2017 • TRENDS | 33