I am considering screening rental applicants for criminal history. From what I've read, it seems this is rather difficult based on how it could be perceived as racial discrimination. The PA Realtors Association refers to HUD's Office of the General Counsel here to explain how that happens. Is there a way to do this that doesn't leave me legally exposed?
My goal is to avoid violence against myself, the property being tagged as the home of a sexual predator impacting property values and to avoid the house becoming a drug sale location. I also want to avoid loss of rent because my tenant is arrested and convicted. My thinking is that if I fashioned a question based on certain types of felonies, I might be able to navigate the discrimination minefields. What are the legal thoughts on this?
The two questions I am thinking of asking are:
1. Have you been convicted in the past 7 years of a violent, sexual, property damage or drug sale-related felony?
2. Are you currently wanted by any law enforcement agency?
My question mostly focuses on #1. I think I am safe with #2 (if yes, let's have your screening interview at the local police station).
I think the harder question is, "What do I do with the answer to #1?" Is there a way to screen against certain crimes that would not get me in trouble? This question seems to be the crux of the legal risk as it must be applied equally to everyone. Can I have a policy of "If yes, then no deal?" or do I need to dive deep into specific charges, sentences and how long ago it took place.
As I've been reading and thinking about this, I am leaning towards not screening with #1 and just wanted to ask the community before I dropped it. Thanks.
@James Mc Ree I have an obligation as a LL to try and provide safety for myself and my tenants. Part of that is background screening for convicted felons with a history of any kind of violence and theft. Contrary to that silly article I do not see a conflict or discrimination when weeding out potentially bad members of a non protected class.
There are factions today trying to make LL stop screening tenants all together with potential fines, Oakland Ca is one of those, threats and endless mumbo jumbo. Not buying it at all. Screening without discriminating against, age, race, sexual orientation etc. is entirely doable. Without it you can't be successful long term. All the best.
@Bjorn Ahlblad I agree with your sentiment. The hard part seems to be showing that a person is currently dangerous in a very consistent, clear way. For example, consider an applicant with a prior assault conviction. Is that person dangerous? Add a little more info: it happened 30 years ago. Still dangerous? Recent convictions seem like they should matter more, so I add a time dimension.
The article I cited is just one of many that all point back to the same HUD guidance. I read articles from attorneys, realtors and public interest groups. It seems that HUD is saying overly broad bans on convictions become discriminatory because certain groups are convicted at higher rates than other groups. I don't think that is discrimination either, but it seems our opinions on that point don't matter.
Safety for my tenants is probably not relevant for me in this context since I rent only SFH. My tenants are a family living with each other regardless of where they live, so they are going to live with their risk. It would be very relevant for a multifamily dwelling in which another unit's tenants would be at risk. Safety for me is very important, of course, just like for anyone. I think it is hard to claim a person with a prior felony conviction is broadly unsafe and cannot be rented to. At least, that appears to be what HUD is saying regarding blanket bans.
It seems like a policy could be sculpted to specific crimes or types of crimes within a recent timeframe that would not violate the HUD guidelines. That is what I am going after.