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.
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.
Download Your FREE Tenant Screening Guide!
Hey there! Screening tenants can be a tricky business, and this critical step can be the difference between profits and disaster. To help you with your real estate investing journey, feel free to download BiggerPockets’ complimentary Tenant Screening Guide and get the information you need to find great tenants.
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.
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.