Tenant Screening
Criminal History
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More Do's and Don'ts in Tenant Screening
One of the most contentious topics in tenant screening today is whether or not landlords and property managers can deny rental housing to someone based on their criminal record.
The answer is . . . yes,
provided you are careful, and have well-established guidelines.
The governing law is the federal Fair Housing Act, and any state or local additions. According to the act, you cannot refuse to rent to any person based on a protected class, including: race, religion, age, gender, marital status, national origin, handicap and a few other characteristics. See the Fair Housing Page.
Even though the federal housing law does not specifically mention "criminal history," you will want to ensure that there is no question that your screening procedures are legal if you choose to deny tenancy based on the applicant's past criminal record. The most important and relevant section of the Fair Housing Act is section 3604(f)(9), which states,
"Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."
It is this section of the Act that landlords most often use to deny tenancy based on a person's criminal record.
Before you deny housing due to an applicant's criminal record, be sure to take some important safeguards. They may not only save you from violating Fair Housing Laws but perhaps a very expensive defense to a lawsuit for discrimination. Due diligence on this issue can be as easy as 123.
Do's:
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Always make an "independent and objective" evaluation of the actual threat that the tenancy of the applicant would pose on the other tenants and their property, and base the decision to accept or deny tenancy on that investigation.
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Contact the police department where the applicant was convicted; the applicant's parole officer; the prosecutor's office; the prison or jail where the applicant served their sentence for details of the applicant's full criminal history.
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Make sure that the crime that the applicant has committed is one that fits within the protective framework of the Fair Housing Act. Keep in mind that the crime must be recent for it to affect your decision. Examples of crimes that will, most often, allow you to deny tenancy are murder, assault, robbery, arson, rape, and sale of drugs.
Don'ts:
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Do not automatically deny tenancy just because you discover that the applicant may have a criminal record.
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Do not confine your screening investigation to just the interview where you just ask the applicant for the details of the crime they have been convicted of.
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Do not deny an applicant housing based on just any kind of crime they may have committed. Several crimes do not fall within the requirements of the Fair Housing Act, including most misdemeanors, simple possession of drugs or other controlled substances, fraud, bad checks, vehicular homicide (in most cases), and DWI.
The most important thing you can do to protect yourself when making these decisions is to establish a set of criteria you use for every tenant applicant and always make the required investigation.
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