ASK THE LAWYER
DEBBIE WILSON | SPRINGMAN, BRADEN, WILSON & PONTIUS, PC
Have You Reviewed Your Criminal Screening Policies Lately?
The Department of Housing and Urban Development dropped a bombshell last April 2016 when it published a new Guidance memo on the use of criminal records in screening applicants in housing.
Essentially, HUD said it is no longer acceptable for Landlords to use arrest records in denying applicants. Furthermore, a Landlord is no longer entitled to have a blanket prohibition on“ anyone with a criminial record.” A Landlord must, instead, develop a criminal screening policy which actually assists in protecting its residents and / or the property.
HUD makes it clear that an overly broad criminal policy which leads to denial of applicants is discriminatory and a violation of the Fair Housing Act, unless it takes into account:
1. The nature and severity of the crime
2. The amount of time that has passed since the crime occurred
3. The age of the applicant at the time of the crime
4. The applicant’ s rental history before and or after the criminal conduct
5. Any evidence of rehabilitative efforts
Exemption( s): Under the April 4, 2016 HUD Guidance, Landlords may still deny an applicant who has been CONVICTED of the illegal manufacture or distribution of a controlled substance, as defined under the federal Controlled Substances Act.
Furthermore, HUD has already recognized that certain criminal behavior may justify denial of housing. Examples include:
1. If a household member has been evicted from federally assisted housing for drugrelated criminal activity within the past three years
2. If a household member is currently engaging in illegal use of a drug
3. If there is reasonable cause to believe that a household member’ s illegal drug use or pattern of illegal drug use threatens the health, safety, or right to peaceful enjoyment of the premises by other residents
4. If any household member has been convicted of drug-related criminal activity for manufacturing or producing methamphetamine on the premises of federally assisted housing
5. If any household member is subject to a lifetime registration requirement under a State sex offender registration program
6. If there is reasonable cause to believe that a household member’ s abuse or pattern of abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents.
The National Apartment Association and National MultiFamily Housing Council published a White Paper in May 2016 entitled“ Criminal Conviction Screening Policies: Best Practices to
Avoid Disparate Impact Liability.” In a nutshell, screening policies or practices which have an unjustified discriminatory effect( even without intent) violate the Fair Housing Act. If challenged, a Landlord may be required to prove that decisions based on criminal history actually assist in protecting resident safety or property.
HUD encourages landlords to screen for noncriminal criteria first. If the applicant meets or exceeds your non-criminal screening criteria, then it is proper to screen for criminal records / history as needed.
All landlords should create a more tailored screening policy which distinguishes between( 1) criminal conduct which presents a demonstrable risk to resident safety or property, and( 2) criminal activity which does not. If you have not already done so, it is important to contact your attorney for a full screening policy review. www. aamdhq. org MARCH 2017 • TRENDS | 33