Stable housing is arguably the most foundational aspect in a person’s life. Unfortunately, for individuals who have had involvement with the criminal legal system, safe, fair, and affordable housing is often out of reach. For people of color, specifically Black and Hispanic Americans with criminal records, those barriers are experienced at disproportionate rates. These barriers are largely due to criminal background screening processes that are often unreasonably restrictive and discriminatory. Housing barriers aren’t reduced when housing providers opt to use a third-party tenant screening company, either. Although this might seem like a more neutral, less biased option, these companies often provide background check reports that are inaccurate, incomplete, or have no relationship to whether someone will be a good tenant.
In 2016, the U.S. Department of Housing and Urban Development (HUD) issued guidance on the application of Fair Housing Act standards to the use of criminal records by housing providers. Just last month, HUD released a new memo offering additional information on implementing policies and practices to reduce housing barriers for justice-involved individuals. The memo also sets out some best practices that fair housing agencies “can suggest to housing providers who may be concerned about potential liability relating to the use of criminal background screening information on applicants or tenants.” Some best practices laid out in the memo include the following:
- Private housing providers should consider not using criminal history to screen tenants for housing. Criminal history is not a good predictor of housing success. Most housing providers are not required by law to exclude persons with criminal histories as tenants and can rely instead on other screening criteria that more closely relate to whether an applicant or resident would be a good tenant, such as ability to pay rent, prior rental history, or personal references. Some HUD-assisted housing providers have statutory obligations to exclude persons with certain criminal histories and should consider limiting criminal records screening to the minimum statutory requirements to avoid fair housing violations.
- Housing providers should evict for criminal activity only as a last resort (which includes conducting an individualized assessment to determine if the eviction is necessary).
- Housing providers should never evict a person or family because they have been victims of criminal activity.
- Housing providers should not ban a tenant’s invited guest from visiting that tenant based on the guest’s criminal involvement. In most jurisdictions, landlords may not bar a tenant’s invited guests, regardless of circumstance. Local laws may provide options that can be used when a housing provider has evidence that the visitor engaged in criminal activity on the premises. If a housing provider uses a remedy under local law, the housing provider still must be careful to ensure its actions do not violate the Fair Housing Act under any of the principles discussed in this memorandum.
The memo also goes on to offer additional recommendations for housing providers who choose to use criminal background screening policies or practices, in order to avoid potential violation of the Fair Housing Act. Fair housing agencies and advocates are encouraged by the recommendations issued by HUD, which will undoubtedly help in assisting clients facing housing barriers due to criminal background. The release of this memo gives us hope that we can one day reach a place where housing is actually treated as a human right, regardless of a person’s past.