“We don’t rent to felons”

“Landlords can’t consider criminal history anymore—it’s discrimination!”

“Felons are banned from public housing for life”

You hear a lot of things about renting with a criminal record. Some are true, some are false, and many are half-true. We know for a fact a criminal record is one of the biggest barriers someone can have to safe, stable housing.

In honor of Second Chance Month, I would like to talk about the facts of renting with a criminal record and how the Center for Arkansas Legal Services can help.

I. Fact: Refusing to rent to people with criminal records can be illegal discrimination under the Fair Housing Act (with limits).   

A criminal record is not a protected class under the Fair Housing Act. However, race is. People of color are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population in the United States. This means that rules against renting to people with criminal records have a bigger impact on people of color. Sometimes, a criminal record is used as a pretext for racial discrimination. The U.S. Department of Housing and Urban Development has outlined two ways that restrictions on housing based on criminal history violate the Fair Housing Act:

A. Discriminatory Effects Liability: A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.

B. Disparate Treatment Liability: A housing provider violates the Fair Housing Act when the provider intentionally discriminates against a protected class by using criminal history information. For example, a housing provider who denies an African American applicant due to a certain felony conviction but admits a white applicant with that same felony conviction. In these situations, criminal history is used as a pretext for some other kind of illegal discrimination.

For more information, see HUD’s 2016 guidance on this topic at https://tinyurl.com/aazzbj2c. Also keep in mind that some housing providers are excluded from the Fair Housing Act and its Arkansas equivalent.

II.  Fact: Housing providers can still consider criminal history as a factor for applicants
(with limits).

Housing providers have a real, fair interest in keeping their residents and properties safe. They can consider criminal history as a factor for applicants.  But if they deny someone based on criminal history, they must have a substantial, legitimate, and nondiscriminatory reason for doing so. HUD says it best:

“Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden.”

HUD, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016) (available at https://tinyurl.com/aazzbj2c).

Blanket bans on renting to people with arrests or criminal convictions are not allowed. An arrest only means that a person was suspected of a crime. Instead, the housing provider should consider whether someone’s convictions pose a risk to other residents or the property itself. This should consider the nature of what happened, how serious it was, and how recently it happened. For example, common sense tells us that someone convicted of multiple, violent crimes in the past 2 years poses a very different risk than someone convicted of a nonviolent felony 20 years ago.

III.  Fact: People with felonies are not banned from HUD housing for life (with limits).

Income-based housing such as Section 8 or public housing is run locally by the owners of individual properties or public housing agencies (“PHAs” or “housing authorities”). They are subject to the Fair Housing Act like other housing providers. However, there are some special rules to consider that vary based on the type of income-based housing you are dealing with. 

There are lifetime bans from most HUD housing for applicants who are:

• Convicted of methamphetamine production in federally-funded rental housing (like public housing);

• Registered lifetime sex offenders; OR

• Current users of illegal drugs.

Most HUD housing providers must also reject applicants for 3 years after an eviction from HUD or other federally-funded housing for drug-related activity unless the applicant has been rehabilitated or the circumstances leading to the eviction no longer exist.

PHAs and owners have a lot of discretion about other crimes, subject to the limits in the Fair Housing Act described in the previous sections. 

An applicant must get notice and an opportunity to explain themselves before a HUD housing provider can deny their application based on a criminal record. They may want to dispute whether the criminal record is accurate or relevant to their application.

The Center for Arkansas Legal Services may be able to help if you have a criminal record that is holding you back from safe, stable housing. All our services are free. One thing that may be helpful is criminal record sealing. Many offenses under Arkansas law can be sealed from public view after a certain amount of time. There are exceptions for some very serious offenses. If your record can’t be sealed, we may still be able to advise you on how it should affect your housing and advocate for you if you are unreasonably denied housing over it. For more information, call our Helpline at (501) 376-3423 to speak to an attorney at no cost.

AUTHOR: KENDALL LEWELLEN, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES