Tenant Criminal Background Checks and Your Association

Nov 17, 2016
 

Does your association require landlords to check a potential tenant’s criminal background?

We all want to live in a safe environment and what is more important than knowing your neighbors are law-abiding citizens? To achieve this, many associations restrict tenant occupancy and some require credit reports and criminal background checks.
No one wants to even think their neighbor could be a convicted criminal. No one wants to live in fear in their own home. Simply asking landlord owners to check into a tenant’s criminal past seems so simple.

But, stop!

On April 6, 2016, the Department of Housing and Urban Development’s Office of General Counsel issued a “Guidance.”  This 10-page document is linked here and deals with the complicated concept of Disparate Impact Discrimination.  

As simply as I can explain it, the Fair Housing Act (FHA) has long prevented discrimination that is intentional. But now, the law also bans discrimination which has the IMPACT of discrimination against a protected class of people (race, color, religion, sex, disability, familial status, or national origin).

In my mind, almost any action or restriction in an association could be seen to have a discriminatory impact. If the association has no playground, are they effectively saying, “no kids wanted?” If the association shares their clubhouse with the church next door, are they implying a certain religion is preferred over others? We won’t know the scope of this regulation for some time.

But the major focus of this Guidance is the impact of criminal background checks against minority tenants. Close to one-third of all American adults have some criminal record. That is an astonishing number of people! And minorities are much more likely to be incarcerated. If every tenant must have a clean criminal slate, then many Americans – and especially minority men – will be excluded. Also, if we only look into criminal records of tenants, it means every owner gets to move in and we have no idea if they have convictions (or arrests) in their history. Thus, HUD says a policy which relies on criminal background checks is discriminatory, unless the housing provider can “prove that the challenged policy or practice is justified – that is, that it is necessary to achieve a substantial, legitimate, non-discriminatory interest of the (housing) provider.”

Recognize, also, that an arrest does not mean the person is guilty of anything. And even a conviction from many years ago may indicate someone who did something wrong, paid the penalty, and has been completely rehabilitated. Without getting much more information about the arrest or conviction, how can the board make a reasonable prediction of future actions by this person?

Criminal background checks are NOT illegal. However, there is a huge threshold the association must overcome in the event a person or HUD itself brings a Fair Housing Act complaint against you. Quoting from the HUD Guidance: "Policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction.”

Is this an annoyance or a very real concern? I believe it is a serious concern. HUD has concluded that conducting a criminal background check on a potential resident does not, in and of itself, protect other residents from future criminal acts. Even restricting against occupancy by individuals with convictions for certain types of crime still requires “proving” that this restriction will meet the alleged purpose. Please read the Guidance to understand HUD’s reasoning. It is carefully conceived and quite persuasive.

Also ask yourself, why do you require background information of any kind from potential tenants when you do not ask for the same information about buyers?
Meanwhile, as you have often heard, if you currently have (or contemplate) a criminal background check requirement, you must discuss this with your association’s attorney.

 

Marshal Granor, Esq., CMCA
Fellow, College of Community Association Lawyers
President, Community Management Services Group

click here to email Marshal

click  here to visit Community Management Services Group on the web 


 

 


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