Criminal background information, though not necessarily always fully comprehensive, has become more accessible. Some researchers and courts have concluded that past criminal convictions are reasonable indicators of a propensity to commit further criminal acts. As such, criminal history information can help owners identify prospective residents that may pose a risk to the property or to other persons, residents and employees.
Federal fair housing laws do not preclude owners from choosing not to rent to prospective residents because of their criminal history. However, cases decided under the Fair Housing Act limit the types of criminal history that may disqualify a resident applicant. When using criminal history as a resident screening tool, owners should ensure that any distinctions among prospective residents are made based on objective and established policies or procedures.
Sexual crime history information should be given particular attention. As a result of Megan’s Law, information regarding convicted sex offenders is becoming more accessible and tends to be more widely available than information about other violent criminals. Registries have been established pursuant to federal law in almost every state to better inform the public about potential danger from the release of sex offenders. Registry information can be a useful resident screening tool because sex offenders have been found to have high rates of recidivism and as such may pose a risk to the residents and employees of multifamily housing communities.
Finally, owners occasionally learn that current residents are listed as registered sex offenders. Such information poses unique questions. First, owners should consult relevant state statutory and case law to determine what, if any, disclosure obligations they may have to their residents and resident applicants. In most states, such obligations do not exist in state statutory or case law. Second, owners must assess whether to terminate the resident's lease. This decision should be based on the then-existing resident screening policies, the lease application, and the lease. If the owner cannot, or chooses not to, terminate the lease, the owner must determine whether and how to disclose the presence of the sex offender to other residents and employees. The owner must also determine what, if any, other precautions should be taken.
- Tips for Better Criminal Activity Screening
- Administration Affirms Criminal Screening Can Violate Fair Housing Act
- Congress Asks for Details on HUD’s Criminal Screening Guidance
- Lawmakers Request Details on HUD Criminal Screenings Guidance
- Watch and Listen: NMHC and NAA Criminal Screening Policies Webinar