Fair Housing for People with Criminal Records

Fair Housing for People with a Criminal Record: A Digital Toolkit

This toolkit was created to provide fair housing guidance for formerly incarcerated individuals as well as family members and professionals advocating for those impacted by the criminal legal system. Many formerly incarcerated individuals face continued penalties post-incarceration by being excluded from housing based upon their criminal records. This toolkit is meant to provide information on fair housing rights and resources that can assist in navigating barriers to finding housing.

This toolkit is based on fair housing guidance that is valid throughout the country. Please note that our agency can only assist clients in Cuyahoga and Lorain counties. If you require fair housing assistance outside of those counties, you can find your local fair housing center here. If you cannot find a fair housing center in your region, fill out this form instead

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HUD’s Criminal Background Rule

The Fair Housing Act prohibits discrimination in housing based on membership in groups called protected classes. These classes include race, color, national origin, religion, sex, family status, and disability. While federal law does not prohibit criminal background screening, The U.S. Department of Housing and Urban Development (HUD) released guidance about how the Fair Housing Act applies to housing policies with regard to criminal background checks.

Criminal background checks are often used as screening criteria for rental housing to determine qualified applicants. For those with criminal records, these screenings have become a barrier to obtaining housing. Many formerly incarcerated individuals, who have paid their debt to society, face continued penalties outside of the courts by being excluded from much of the housing market. HUD recognizes racial and ethnic disparities in the criminal legal system including disproportionate and unequal rates of arrests and convictions, and harsher sentencing of African Americans and Latinx populations in particular. The result of this disparity is a disproportionate burden on these protected classes, which can be a violation of the Fair Housing Act. Therefore, HUD has released guidance to address this housing obstacle.

In 2016, HUD issued guidance on applying Fair Housing Act Standards to the use of criminal records screening in housing‐related transactions. In 2022, HUD issued a memo, which further clarifies its 2016 guidance on this topic and even recommends that private housing providers avoid using criminal history to screen tenants for housing.

This guidance prohibits:

Denying housing based on arrest records.
Blanket bans on anyone with a criminal record.
Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear.

Further, a landlord must:

Consider individuals on a case‐by‐case basis and evaluate the nature and severity of the crime, and consider the length of time that has passed since that crime was committed.
Make a determination based on facts and evidence, and not a perceived threat.

Denial Based on Criminal History

Individuals can legally be denied housing if their recent criminal record makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. Denials also:

Must provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the denial.
Must show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/property and criminal conduct that does not.

HUD regulations governing some federally‐assisted housing require two permanent bans: applicants with a lifetime requirement to register as a sex offender, and applicants convicted of manufacturing methamphetamine on federally‐assisted property.

Examples of Possible Discrimination Based on Criminal Records

A housing provider will not rent to a tenant because they served time in prison for robbery or drug possession 30 years ago, but have not been in trouble with the law since.
A housing provider automatically discards any applications where the potential renter has checked the box inquiring if they have ever been convicted of a felony.
A housing provider uses the person’s criminal record to deny housing as a means to discriminate on another basis, such as the person’s sexual orientation, disability or national origin.
An individual has a criminal record due to a past drug addiction, but has since successfully completed a rehabilitation program. (Being in recovery from drug addiction is considered a disability under the Fair Housing Amendments Act of 1988, which prohibits discrimination based on disability, and includes additional protections such as reasonable accommodations and reasonable modifications.)

Learn more about appealing housing denials based on criminal records here.