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.