The United States Department of Housing and Urban Development has issued a“ white paper” or, statement of position, which is neither law nor binding on the courts, on the subject of the effect of housing discrimination law and principles upon housing applicants with past criminal convictions. Despite its goal of providing only guidance, it may carry weight with some judges.
There has been much discussion in the current political season about the effect that congressional modifications to federal criminal law in the 1990s had on criminal convictions and incarceration rates since that time. Laws targeting drug use and increasing prison sentences including making some prison mandatory( such as“ three strikes and you’ re out” laws) have been said to have had a disproportionate impact on minority populations. Many state legislatures followed the federal example and passed similar laws. Some argue that statistics indicate that these laws have been invoked less often against white defendants. The result is that there are now great numbers of blacks and Hispanics with criminal records. It is argued that many of those caught in this wider net were non-violent offenders with what is now more often seen as a medical drug dependency problem.
Criminal history is not a protected class under either federal or Colorado law. Therefore, there has been no limit on a landlord’ s ability to adopt a policy of rejecting all applications from anyone who has any type of past criminal conviction. The effect has been to make the search for housing for those individuals difficult or impossible. The new white paper is clearly intended to remedy this perceived problem.
Housing discrimination law has always recognized that a tenant screening policy that creates a disparate impact on any protected class of persons was a potential basis for liability. This was affirmed by the United States Supreme Court last year in the Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. case( 135 S. Ct. 2507( 2015)). The court’ s opinion placed certain limits on the legal theory in the presence of a justifiable purpose by the landlord supporting the policy even though its enforcement may fall more heavily upon a protected group. The white paper has recognized the potential applicability of disparate impact on landlord policies barring all persons with prior arrest or conviction records. In other words, illegal housing discrimination may be proven not only where the landlord intended to treat a protected class prejudicially, but also where it can be shown that the landlord’ s apparently neutral policy had the effect of harming members of a protected class.
The white paper suggests a standard that a landlord should be required to look beyond the mere existence of an applicant’ s criminal record, clarify the landlord’ s legitimate interests in his use of the policy regarding past criminal history, obtain circumstantial information from the applicant, and examine the age and nature of the offense before rejecting the application.
American criminal law is based upon the principle that an accused is innocent until proven guilty. Therefore, an arrest record should never be used as a basis for rejecting a housing applicant. The two remaining factors that are available for consideration are the age of the criminal conviction and the nature and type of crime for which the conviction was entered. The white paper infers that the older the applicant’ s most recent conviction, the less significance it should have in refusing housing. Also, it infers that the nature of the crime should be weighed against the landlord’ s interests in maintaining the security of his other residents and those in neighboring properties.
Landlords and leases go to great lengths to avoid assuming the burden of providing for the security of their residents. Yet, the only justification for a policy rejecting all applicants with criminal pasts is the landlord’ s goal of increasing security and safeguarding the persons and property of his other residents and their neighbors. Under the thinking implicit in the white paper, landlords must now dig into the applicant’ s information in more detail for the protection of their other residents. This trend could result in an increase in landlords’ exposure to liability in cases where residents are the victims of crime at their properties. The lease language shifting the burden of security unto the tenants’ shoulders may now appear to be even more disingenuous to juries.
www. aamdhq. org
FAIR HOUSING AND CRIMINAL CONVICTIONS by phil klass, klass law group
In the meantime landlords must be more careful in their decisionmaking and documentation to make sure that an applicant, particularly a minority applicant, is not deemed unacceptable based upon: a simple arrest, a misdemeanor conviction, a non-violent felony conviction, or an older conviction. It may be appropriate for the landlord to obtain an explanation of the circumstances from the applicant himself in order to have sufficient information to make his judgment to weigh the conviction against the landlord’ s legitimate interest.
The white paper offers no bright lines to the residential rental industry, just considerations that should be expected to come into play in the application process and in the court cases that may be expected to flow from disparate impact cases that will be filed in the future. The“ dos and don’ ts” offered include:
DO: »» have a written policy on criminal screening;
»» tailor the policy to meet but not exceed the legitimate interests of the landlord;
»» record the justifications for the policy;
»» weigh the age and seriousness of applicants’ criminal convictions;
»» allow the applicant to explain the circumstances of the conviction;
»» train your staff accordingly.
DON’ T: »» be inconsistent in applying your policy;
»» ignore mitigating information in your case-by-case review;
»» reject based solely upon arrest records;
»» automatically reject based upon a prior conviction;
»» exempt any applicants from your screening process;
»» use criminal screening as a pretext for rejection of applicants.
I suggest the creation of a detailed written policy by every landlord and manager which defines those crimes which are objectionable( i. e.: violent felonies) and places age limits on those convictions which will be considered relevant for rejection of the applicant( i. e.: seven years). I believe that landlords may consider the number, seriousness, and age of all of an applicant’ s criminal convictions as a factor as well, but articulate such considerations in your written policy. Incorporate into the written policy a statement that the policy and its use are for the purpose of decreasing the likelihood of crime at the property, but that crime can occur anywhere and anytime regardless of a property owner’ s and manager’ s efforts, that no screening policy can eliminate security concerns, and that residents themselves and law enforcement are ultimately responsible for each resident’ s safety.
JUNE 2016 • TRENDS | 27