The Federal Fair Housing Act has a few rules for landlords when it comes to dealing with applicants with a criminal past.
The Pros
- Justifiable policies enforced consistently protects landlords
- Landlords have opportunities to prove their cases
- Applicants with drug-related convictions have fewer protections
- Allows reasonable protections for current tenants and/or property
And The Cons
- Rulings can be widely unpredictable
- Any inconsistency in screening hurts landlord’s case
- Landlords have no protection if there was an arrest, but no conviction
- Challenging rulings are costly, time-consuming, and unpredictable
Limitations for landlords
A broad policy of denying any prospective tenant with any type of criminal history would be considered discriminatory under the Federal Fair Housing Act.
Protections for applicants
HUD believes a landlord policy that restricts tenants based on criminal history would disproportionately affect minority groups. Therefore, it is considered a discriminatory practice.
HUD has two discrimination categories, unintentional and intentional.
Unintentional discrimination
HUD uses a three-step process to determine if a landlord’s policy is discriminatory and violates the Federal Fair Housing Act.
- Does it create discrimination?
- Does it achieve a legitimate non-discriminatory interest?
- Is there a less discriminatory alternative?
Intentional discrimination
A landlord’s policy is intentionally discriminatory if tenants with similar criminal records are treated differently.
Drug related crimes
Landlords cannot be convicted of unintentional discrimination for refusing to rent to a tenant who has been convicted of the illegal manufacture or distribution of a controlled substance.