I told you so! I have (for years!) encouraged and beseeched the apartment industry to soften up a bit on the “any felony, ever” basis for rejecting applicants. I made the point that Martha Stewart would likely not be accepted as a resident (notwithstanding that while she may be annoying, she is not dangerous, that she can pay the rent, and at the end of a lease her unit would be more lovely than when it was rented to her).
Now, on to some tips as to how to navigate the current waters of criminal background checks for applicants…
1. First and foremost, there should be no asking for or looking at any arrest records whatsoever. If this has been the previous policy, that needs to be changed immediately. To further be in a safe harbor, it is suggested by some fair housing experts that you also ignore the following:
- Misdemeanors of any kind
- Adjudication withheld, dismissals, pre-trial diversions nolle prosse, acquittals on any offenses
- Convictions for possession or use of illegal drugs or controlled substance or paraphernalia related paraphernalia (which is not the same as convictions for manufacturing or distributing or intending to distribute such).
2. Next, if you are using a vendor to do criminal background checks on your behalf, inform them in writing to make it abundantly clear that as a landlord you absolutely do not want to have any arrest record information communicated to you nor factored into any input that will be provided to you in consideration of the qualification of the applicant. Make sure that you keep a copy of such correspondence in your records.
3. This entire topic is a “work in progress” and it will take time for you to analyze, seek guidance and perhaps make necessary changes to what your current policy on criminal background may be. So now is the time to put into your company files an internal note/memo stating that you are currently in the process of evaluating and revamping as necessary your criminal background check policies because it is your intent to be fully compliant with fair housing law.
4. The big project is of course is to re-think criminal background checks and revise when necessary. That involves an analysis of: what crimes really matter to a landlord (and residents at a community); what the timelines should be for such crimes; and when does the clock start ticking - with the charge? with parole? with a finished sentence? at conviction? There is some indication that the best "starting date" is the conviction date.
5. As to what should be a reasonable basis to deny housing to an applicant, some in the industry are proposing the following (in order to be seen by HUD as fair housing compliant):
- Felony convictions for illegal manufacture or distribution of a controlled substance within the past 7 years
- Felony convictions for crimes resulting in bodily harm within the past 7 years
- Felony convictions for crimes resulting in damage or destruction to property (such as arson) within the past 7 years
- Felony convictions for sexual offenses (ever)
6. Finally, while it may not actually be an issue at all, it is likely prudent and wise to alert your insurance carrier to this topic and advise them of any changes you are making operationally. You always want to stay under the umbrella of coverage and not be inadvertently exposed to any risk of having claims denied.
Ms. Stewart, welcome to apartment living!