LANDLORDS PERFORMING CRIMINAL BACKGROUND CHECKS MAY BE VIOLATING FAIR HOUSING LAW

In 2015 the Supreme Court ruled in the case of Texas Dept of Housing & Community Affairs vs. The Inclusive Communities Project, Inc. that under the Fair Housing Act some otherwise lawful activities, while free of discriminatory intent, may have a “disparate impact” on minority groups.  Recently HUD announced that, in HUD’s opinion, denying a rental applicant on the basis of their criminal history may be a violation of fair housing law.  HUD’s observation is that more people of color have a criminal history than do white people so the use of a criminal record to determine an applicant’s ability to fulfill a lease obligation would have a disparate impact on applicants of color.   If a landlord or property manager is going to perform a criminal background check on an applicant and use the results of that screening result to deny the applicant, the landlord needs to be able to show that the criminal conduct that occurred in the past would have a direct impact on the applicant’s ability to honor the lease.

Technique – Don’t conduct criminal background checks on applicants.  Generally speaking, criminals are not financially responsible.  It is likely that the applicant you want to deny, while they may have a criminal background, it is likely they also have bad credit and/or a bad landlord reference.  There are two benefits to NOT conducting the criminal background check.  First, you reduce the chances of having to defend an accusation of housing discrimination.  Even if the landlord can prove that there was no intent to discriminate, or if the investigation determines that there was no evidence of any violation of the Fair Housing law, undergoing the investigation process is very expensive and time consuming.  Second, you reduce your liability regarding the actions or conduct of your tenant with respect to neighbors.  You have probably read or seen a news story where some tenant was attacked in their apartment and they sue the landlord because a security light was inoperative on the other side of the apartment complex.  Example – you offer a property as available for rent and you get an application.  You conduct a background check, including a criminal check, and find that the applicant was found guilty of car theft 10 years earlier.  Because it was a non-violent, non-drug related crime, and the applicant has good credit now, you rent them the property.  Months later your tenant attacks a neighbor and causes them severe injury.  It turns out your tenant has been a career criminal all along, they just never got arrested after their earlier car theft conviction.  Because your tenant is “judgment proof”, the neighbor sues YOU claiming that you were liable for their medical bills because you allowed this tenant to move in.  And during the Discovery process, your records indicate that you knew the applicant had a criminal record but you approved their application any way.  Would the plaintiff’s attorney use that information against you?

Since you have no obligation to check an applicant’s criminal background, wouldn’t you have less liability not to have any knowledge regarding their criminal background?  And you would definitely have less risk of a fair housing violation.

Technique – to reduce the chance of having someone actively involved in criminal activity, during the showing of the property, and during the application process, make sure the applicant understands that you are a proactive manager and you WILL be coming by the property to conduct periodic inspections.  If the applicant is really engaged in criminal activity, the last thing they want is a landlord coming around all the time and they will look for somewhere else to live.

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