By Laurie Schenden, CVAR Communications & Marketing
During “Fair Housing Month” in April, the Dept. of Housing and Urban Development (HUD) released a guidance that has landlords and property managers aflutter about whether they’re breaking the law if they reject a potential tenant based on a background check. The reason for the new interpretation of this section of the federal Fair Housing Act?
Blame the Internet.
One in three people in the US have an arrest record, says HUD. About 10,000 names are added each day. Whether a person is ultimately convicted or not, the arrest information is easily obtainable on the Internet, and included in background checks used to choose tenants for housing and apartment rentals.
“Many people who have never faced charges, or have had charges dropped, find that a lingering arrest record can ruin their chance to secure employment, loans and housing,” reported the Wall Street Journal. “Even in cases of a mistaken arrest, the damaging documents aren’t automatically removed.”
In fact, there are plenty of stories circulating about how nearly impossible it is to have an arrest removed from FBI files, let alone the Internet. Which is pretty disturbing, since a study conducted for the Journal suggests that men with arrest records “even absent a formal charge or conviction,” earn lower salaries and are less likely to own a home.
“This latest interpretation of the federal Fair Housing Act … makes it illegal for housing providers to discriminate against a variety of protected classes of people, including minorities,” according to an April 26 article in the National Real Estate Investor. “Many landlords are now uncertain how to balance their responsibility to keep their communities safe with their responsibility under the law not to discriminate.”
A section from the guidance released April 4 states that: “Because arrest records do not constitute proof of past unlawful conduct and are often incomplete (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual. For that reason, a housing provider who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.”
But the guidance also states: “Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider. The Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions.”
So, using a background check as justification for rejecting an applicant is not illegal, it could be considered discrimination if there are two applicants with similar histories and the one not chosen is a minority.
Public housing authorities in Los Angeles and other cities are already working on new screening policies for tenants; and HUD is considering some ideas from New Orleans as a model for the types of convictions that could justify the rejection of an applicant.
For further details from HUD, CLICK HERE.