Landlording & Rental Properties

New HUD Guideline Warns Landlords Against Denying Housing Due to Criminal Records

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One in four Americans has a criminal record. This could mean anything from a petty offense that occurred years ago for which there was never actually a conviction to a more serious, more recent conviction — but regardless of the perpetration, HUD has released new guidelines (as reported by NPR here) to make it easier for this 25 percent of Americans to find housing.

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As landlords know, those with a criminal record are not protected under the Fair Housing Act. What HUD's new guidelines stipulate is that turning down a potential tenant or buyer based on their criminal record may now violate the Fair Housing Act.

Related: The 5 Areas Where People Violate the Fair Housing Act The Most (And How to Avoid Them!)

HUD’s Policies Regarding Criminal Records

Sound a little vague and/or confusing? Let’s look at a breakdown of what this rule entails:

  • Blanket policies refusing rent to those with criminal record does count as discrimination “because of the systemic disparities of the American criminal justice system” (NPR).
  • Still, turning down an individual due to their record on an individual basis could be legally justified.
  • Whether any given landlord's policy counts as discriminatory will need to be determined on a case by case basis.
  • The guidance is not meant to be seen as an indictment against considering criminal records, but landlords do need to prove that their policy is in place exclusively to protect safety and/or property.
  • Denying housing to those based on a record of arrest is not legitimate because arrests alone aren’t proof of guilt.
  • HUD argues that even when a conviction occurred, landlords can’t deny housing without looking at the underlying situation, i.e. “no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then.”
  • Landlord policies should instead take into consideration what the crime was, when it occurred, and other factors surrounding the arrest — the only exception being for manufacturing or distributing drugs.


The Rationale Behind HUD’s New Guidelines

In deciding to implement these new guidelines, HUD looked at statistics provided by the Justice Department that demonstrated a disproportionately high rate of arrest and incarceration based on race. For example, African American men are jailed at a rate almost six times as high as white men, with Hispanic men incarcerated more than twice the rate of white men.

Said Housing Secretary Julian Castro, “When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason” (NPR).

Finding Housing After Imprisonment

Melvin Lofton, a 51-year-old African American man who was convicted of burglary and theft when he was in his 20s, understands the struggle to find housing with a record of arrest.

Currently residing with his mom, he says it was hard if not impossible to find housing otherwise. Recalling when he tried to rent from a mobile home park, he stated, “I was at work and the guy called me and told me to come pick up my keys. So I was happy. I got a place to stay. So then … 45 to 50 minutes later he calls and says, ‘Is there something you’re not telling me?’ and I say, ‘No, what is there?’ And he says, ‘You didn’t tell me you had a background.’ ”

At the time he applied for housing, Lofton had been out of prison for 20 years.


Related: How to Market Properties without Violating the Fair Housing Act

Treating Applicants With Consistency

As many other Fair Housing policies, above all, HUD advises that all landlords should treat prospective tenants fairly across the board.

"Intentional discrimination may be proven based on evidence that, when responding to inquiries from prospective applicants, a property manager told a African-American individual that her criminal record would disqualify her from renting an apartment, but did not similarly discourage a White individual with a comparable criminal record from applying," writes HUD.

Whether this new guideline will help those in need find housing or proves to be too situational and confusing to be truly useful remains to be seen — but as always, landlords would do best to inform themselves on this newly released information and to follow it to the best of their abilities.

What are your thoughts on this new release from HUD? 

Let me know with a comment.

A career writer, editor and blogger, Allison serves as the Director of Content for In the past, she has channeled her passion and curiosity for all things real estate into her jo...
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    Randy Phillips Wholesaler from Clovis, California
    Replied over 4 years ago
    My latest applicant was a 22 year old black girl with a 5 yr old kid and a 37 yr old Fiancé and they lived with her parents. I asked if her BF had a criminal record, she said he’s not my BF but my Fiancé and no were good people. I told her the guy is not your fiancé after 6 years unless there is a wedding date. I asked what her BF’s name is so I can do a back ground check, she tells me that he don’t have a drivers license and he’s never had a ticket. She wudnt give me their last names and sent me a video of herself singing with this oversized black wig on. Then she says her BF wont be there for a few months cuz he’s transporting bins which was different story cuz earlier she said he worked at a chicken ranch but had got in a car accident and was soon starting back to work. I was thinking these are not somebody I want to rent to. I’ve had problems with renters, I don’t enjoy dealing with them and paying repairs. That’s why I luv Wholesaling, in and out, fast cash.
    Steven J. from Urbana, IL
    Replied over 4 years ago
    So interesting! I saw a post someone made about how now the judgement that should be in the hands of the judicial system is being pawned off on to landlords. I do think its interesting that this aspect hasn’t been addressed more. Its another way to make landlords the bad guys for not allowing those with bad backrounds while the judicial system is the one at the underlying reason of why many get such a negative backround. What’s your policy going to look like? Are you going to have a long list of crimes that are acceptable? Will you have a specific dollar amount for thefts as a cutoff? How badly does an aggravated assaults have to be to get denied? Although I greatly appreciate the approach of helping people find housing I think this is a cop out where landlords are now the ones on the line.
    Dave Laqua Real Estate Investor from Harker Heights, Texas
    Replied over 4 years ago
    lolololololol…..this article kills me……I don’t care what HUD says, im not renting to Child molesters or Burglars or unemployed druggies I don’t give a damn how long ago the offense was…….I will take the unit off the market for Code upgrades /Maintenance if someone ever challenges me, and since I have never been challenged in 22 years- guess I’m ok-
    David Crutcher Jr. from Nashville, Tennessee
    Replied over 4 years ago
    What about an employed ex drug offender? It seems like you don’t believe in change or that a person could’ve learned from a mistake they made earlier in life. Question: have you ever had problems with a tenant who wasn’t a drug offender? And if so how do/did you prevent yourself from having that kind of tenant again?
    Replied over 4 years ago
    Yes……Well stated and one of the reasons I stay out of this market all together.
    Cameron Benz
    Replied over 4 years ago
    Excusr my ignorance as I’m still learning, but wouldn’t some of this be revealed in a credit check? If they can’t cover obligations because they’re in jail, it should flag, right?
    Steven J. from Urbana, IL
    Replied over 4 years ago
    Because they are incarcerated doesn’t mean the bills get paid. And a credit check alone doesn’t indicated crimes at all. Its a separate criminal backround check.
    Replied over 4 years ago
    Pretty soon we will have to pay the less than qualified to rent from us. Our tax dollars at work. Criminals are usually pretty consistent, its not just one crime and done. Of course, the government wants to make it about race. Lets face it there are no rules anymore….we are in a vast waste land of contigency lawyers. Now they will start ambulance chasing those who are turned down for ANY reason……wow!
    Replied over 4 years ago
    Here is hoping that someone challenges this ridiculous “rule”. In the meantime, stay with the tried and true. If a tenant asks why they were denied, “there was another applicant who was more qualified”. Never, ever give the true reason why someone was denied. That answer is truthful, and “I am so sorry that I cannot really share why the other tenant was more qualified since that would violate their right to privacy” can be added. I absolutely do not discriminate against any group. However, I will certainly try to find a more qualified candidate if an applicant is unstable. This often includes criminals, deadbeats, and drug addicts.
    David Crutcher Jr. from Nashville, Tennessee
    Replied over 4 years ago
    So a criminal act qualifies as being “unstable” to you? As stated in the article some could consider denying someone housing because of something they did 20 yrs prior could be considered “unstable”. Have you ever made a mistake & “not” got caught? Would you consider yourself “unstable”?
    Scott Weaner Rental Property Investor from Yardley, PA
    Replied over 4 years ago
    David, you can give as many “second chances” as you like, and that is fine. Mandating that we give second chances is another story.
    Wilson Churchill from Madison Heights, Michigan
    Replied over 4 years ago
    “In deciding to implement these new guidelines, HUD looked at statistics provided by the Justice Department that demonstrated a disproportionately high rate of arrest and incarceration based on race.” This is an extension of HUD forcing “White” communities to accept low-income housing. The goal is the Miscegenation of the European Peoples, epitomized by the Kalergi Plan.
    Lynn Andersen Investor from Rochester, New York
    Replied over 4 years ago
    “White” community. Sound very racist to me, don’t you think?
    Jonathan Godes Lender/Investor from Glenwood Springs, CO
    Replied over 4 years ago
    I don’t know at all what the last two sentence of your comment was @winstonchurchill, but damn did it sound racists as all hell.
    Thomas F. from Kingsport, Tennessee
    Replied over 4 years ago
    I was really hoping that I would not have to deal with “White Genocide” wingnut, racist, trolls on Bigger Pockets of all places.
    Jerry W. Investor from Thermopolis, Wyoming
    Replied over 4 years ago
    While there is some positive logic, on the whole this new policy is horrible. The point is that it is likely to become the law of the land. It is the executive branch that controls this department so be careful who you support to become President. It is policies like this that get people like Trump elected. Discrimination is wrong on many levels, but so is reverse discrimination. Using their logic if you could show that 98% of a particular class or race of people were convicted of child molesting, then you could not refuse to rent to a child molestor as it would unfairly impact one race or class. there is no monetary benefit you can show to not renting to child molestors if you have SFRs, as the neighbors are not your tenants. it is more than just making a profit, it is also about being concerned for the welfare of your neighbors and community. There are some folks out there who just made a bad mistake and learned from it, there are also some folks out there who are truly bad. You can bet the HUD rule makers will not reimburse us when their policies cost us money or get us sued by local towns for having a nuisance property because of repeated law violations.
    JR T. Financial services executive from Frederick, Maryland
    Replied over 4 years ago
    HUD says we should only be worried about people who took drugs? I’m more worried about sex offenses and other crimes of violence that might endanger an existing tenant. This is a very sick country,
    Jerry Kisasonak Residential Real Estate Agent from Mc Keesport, Pennsylvania
    Replied over 4 years ago
    Remember history. HUD used to house low income people under the Section 8 program, and they did it in housing plans – otherwise known as the projects. It didn’t take long for the government to learn how expensive it was to operate these projects. It was, in the end, a huge waste of money and the plan failed. That’s when HUD decided to let the private sector handle this, and they opened up the voucher program to investors like us. Truth be told, they had little choice. They were not competent in doing it themselves, in spite of the fact that they had plenty of tax dollars backing them. They just couldn’t keep it together. So now we have this new wave of legislation from the government, as if they are experts at this stuff and know exactly what we should do. Maybe we should do what they did. THAT worked out so well didn’t it? Not at all. We would all go bankrupt. No thanks
    Tom Heidel from Bradenton, Florida
    Replied over 4 years ago
    Let see here…. “As landlords know, those with a criminal record are not protected under the Fair Housing Act. ” But… “Blanket policies refusing rent to those with criminal record does count as discrimination “because of the systemic disparities of the American criminal justice system” (NPR).” Means that…. Following the law and choosing not to rent to those with a criminal history makes you a racist. Wow!!
    Dan N. Investor from Round Rock, Texas
    Replied over 4 years ago
    The way I read the article was that having a policy like this may not be allowed: “I won’t rent to anyone with any criminal record.” But certainly you could say “I won’t rent to someone with a felony, or crimes against people, property, drug manufacture or distribution.” But that would still allow someone who got arrested for too many traffic tickets. Also, I think it’s totally reasonable to expect landlords to have written standards for themselves which they apply consistently. That’s what I try to do as a landlord.
    Patrick McMahon Investor from Parkland, Florida
    Replied over 4 years ago
    I like your suggested policy wording. Thanks for posting.
    David Moore Investor from Crystal, Minnesota
    Replied over 4 years ago
    I think, as in all things, ultimately what I want is the best possible tenant for my unit. So my selection criteria prioritizes credit score, history of making on time payments to past landlords, length of time in job. As part of the criteria, I do a criminal background check. The important thing is to be thorough. I actually call their employers and prior landlords. I check out their facebook, and I charge each of them an application fee in cash. Any applicant making my job difficult is going to be ranked much lower. Imagine them as a tenant. When I send out a deinal letter, I’m not saying based on criminal record. It just says, picked another tenant. Easy really.
    Jade S. Investor from Evans, Georgia
    Replied over 4 years ago
    Elections truly have consequences…choose carefully in 2016. Other than that, be on the lookout for tenant-rights groups to try and “snag” landlords in some manner on this issue.
    Shaun Hunt from Cedar City, Utah
    Replied over 4 years ago
    Two years ago, a tenant of mine went crazy and burned the place down after a SWAT standoff. Last month, tenants went away in handcuffs after a drug sting. Come to find out, both had served prison time for criminal records. The FHA didn’t step in to help me out with either eviction. In fact, the tenants didn’t even have to help. They both were in jail, while I was packing up their junk. Seems like a good idea to make Landlords take anyone. Well, maybe not.
    Bryan O. Specialist from Littleton, CO
    Replied over 4 years ago
    I’m actually pretty excited about this… The next logical step is to not allow banks to discriminate against the educated by adding in all those student debt numbers in their DTI. There is a high proportion of the US that has that kind of debt you know? I’ll be rolling in units filled with non-discriminated criminals in no time!
    Eddie T. Rental Property Investor from New York
    Replied over 4 years ago
    WHat are we all doing to fight this? We should start a petition
    Faisal Farnas Investor from Saint Petersburg, Florida
    Replied over 4 years ago
    This is so ludicrous it is almost funny! So people shouldn’t pay for their mistakes? What about the rights of other tenants who are going to be living with an ex con? The people responsible for this have no idea what they are talking about. Like others have mentioned in the comments, this is almost impossible to enforce, they should just direct their money and effort where they can actually make a difference.
    Andrew Syrios Residential Real Estate Investor from Kansas City, MO
    Replied over 4 years ago
    More government meddling… I am beside myself with joy
    Chris Paulus Investor from Strongsville, Ohio
    Replied over 4 years ago
    All of my LLC’s have rental standards that include among other things: no evictions, no felonies in the last 5 years (my PM believes in second chances, NO sex offenders (most of our buildings have kids) and no drug convictions. The last one is difficult, but addiction is tough and it is easy to spiral back down. I know, because I ate over 8,000 Krispy Kreme glazed donuts in the 80’s. Later, I would drive 45 miles to get a fix (usually 1 – 2 dozen). It took years to overcome and there are times I have to make an effort not to drive buy a KK Store. mmmm donunts…. I forgot where I was going with this…
    Scott Weaner Rental Property Investor from Yardley, PA
    Replied over 4 years ago
    Sorry, I will not rent to convicts. I really don’t care what this new “law” says, as I alone am responsible for my property. It is private property, not the government’s property. As for second chances, anyone can give them if they desire, but there can be no mandate, unless the government is going to indemnify us from any damage or economic/legal losses.
    John Thedford Hard Money Lender, Broker Associate, Investor from Naples, Florida
    Replied over 4 years ago
    I note the number of posters that say NO regardless of the proposed changes. I certainly don’t agree either. The way to protect yourself and your property is to develop a WRITTEN policy and follow it. Some disqualifiers might be: any property crime within the last 5 years. any crime of violence within the last 5 years. any crime involving illegal drugs or prostitution. Then add in income qualifications, employment qualifications, and rental history. This might help insulate against tenants you feel are not going to make good tenants. A BIG thank you to the department of injustice…
    JAY SPARKS Wholesaler from Jacksonville, Arkansas
    Replied over 4 years ago
    Hmmm. I remember my mother telling me about Jesus one night. She ended by saying that everyone is born with a fist full of nails and nobody has ever been buried with a single nail left. I wonder how many on this forum would be criminal record free if they were convicted of every law they ever broke? As for me, I plan to do as I have always done. I will judge a tree by the fruit it bares.