In April 2016 the Department of Housing and Urban Development released a new “guidance” governing the use of criminal history reports as part of a tenant background check. Essentially, criminal background records should be severely limited in use due to the potential of discrimination against various protected classes.
From WestfairOnline.com (Apr. 14, 16):
The HUD Office of General Counsel (OGC) finds that because African-Americans are arrested and convicted in higher numbers compared to the general population, they suffer a disparate impact when landlords disqualify tenants solely on the basis of arrests or felony convictions. (1)
In certain cases, specifically in the public housing area, exceptions remain regarding the use of criminal history.
From Lexology.com (Apr. 29, 16):
HUD’s regulations require a criminal background check of applicants for federally-assisted public housing and reject those having a household member who is currently using illegal drugs, has been previously evicted from federally-assisted public housing for drug-related criminal activity in the past three years, or is a registered sex offender. State and federal regulations also list other prior criminal activity that may, but is not required to, be disqualifying. (2)
Adam Almeida, President and CEO of TenantScreeningUSA.com states: “Access to sex offender registry for purposes of tenant screening in the private sector is not well defined, at least in regards to the new guidance. As it is a very important record and approved for public housing screening the potential for the lawful use of sex offender reports appears high for private sector tenant screening.”
The question of utilizing a sex offender registry is important. Technically, a sex offender registry is a report of criminal records, which is prohibited by the HUD guidance. However, without specific inclusion it may be presumed lawful. The vagueness of this detail highlights the need for a third-party tenant screening company to conduct tenant checks.
Almeida states: “A third-party tenant screening company will remain up-to-date in all laws governing the use of criminal records and histories as part of a tenant check, including sex offender registry records.”
From Washington Multi-Family Housing Association (www.wmfha.org; Apr. 14, 16):
Unfortunately, the HUD Guidance does not mention sex offenders or persons with convictions for terrorism. We can only assume that this was an oversight and that landlords can still reject persons with sex offenses who are required to register as sex offenders under state law. (3)
The span and scope of the new HUD guidance has not gone without criticism, especially in regards to clarity over the lawful use of sex offender registry.
From an Op-Ed on GrantCountyBeat.com (Apr. 15, 16):
There is only one specific exception to the rule; those convicted of manufacturing or distributing illegal drugs. Why not sex offenders too? So if I decide that someone with a history of burglary or assault, maybe 2 or 3 convictions, is not eligible, because I want to protect my property and/or the neighbors, I now have to consider whether or not I’ll be accused of unfair discrimination and could potentially lose my property because I don’t have the cash to pay the fine. (4)
Almeida states: “Ultimately working with a third-party tenant screening company is a best practice. A tenant screening company will have the knowledge and understanding of all laws and regulations, and guidance, governing the fair, legal, and lawful use of public records, including sex offender registry records.”
TenantScreeningUSA.com is a third-party tenant screening company with highly trained and skilled operators working within the rules and regulations of tenant screening as defined by HUD and the Fair Housing Act. With the ability to access information from databases and county courthouses, TenantScreeningUSA.com can provide the information required for landlords and tenants of properties large and small.
Notes:
- westfaironline.com/78758/column-hud-protects-a-criminals-right-to-housing
- lexology.com/library/detail.aspx?g=b3336cb2-3efe-4bb2-b5f1-84c9026cd532
- wmfha.org/news/284524/New-HUD-Guidance-on-Criminal-Background-Screening-and-Fair-Housing.htm
- grantcountybeat.com/columns/undeniably-right/28518-new-hud-rule-will-hurt-landlords-and-tenants
