Is it Okay Not to Rent to a Felon?

Some landlords have faced the dilemma of whether to lease an apartment to someone with a felony conviction. While the almost instinctual reaction is that it would not be a wise business decision, sometimes the matter can become complex due to both moral and legal issues. For example, is there a difference between someone who made a serious mistake as a teenager many years in the past, and has since reformed, becoming a productive member of society, and someone who is a habitual offender? Secondly, are there laws that landlords should be aware of?

While the moral issue is a personal one for each landlord to grapple with, the legal question is another matter.

According to Meredith Caruso, associate general council for Florida realtors, “There is nothing in the Fair Housing Act that denys a landlord the right to reject an applicant based on a prior felony conviction.“ But here’s where it gets complicated, as Ms. Caruso continues: “However, a blanket policy to deny felons can have an indirect impact on minority populations, leading the U.S. Department of Housing and Urban development (HUD) to issue a statement in 2016 regarding criminal backgrounds.”

Since populations of racial minorities have considerably higher rates of felony convictions as evidenced in a number of studies, and the prison population consists disproportionately of minorities, landlords need to be aware of the HUD ruling: “A housing provider violates the Fair Housing Act when the provider’s policy … has an unjustified discriminatory effect, even when the provider had no intent to discriminate.” The ruling continues: “Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act …” The guideline by HUD emphasizes that since African Americans are far more likely to be arrested and convicted, this community faces an unfair burden. For those interested, the entire HUD ruling can be read Here.

Put simply, HUD states that since minority communities have higher felony rates, a blanket policy against renting to felons constitutes a violation of the Fair Housing Act.

Landlords, therefore, must exercise caution when confronted with an applicant with a felony conviction.

The landlord who chooses not to rent to a felon should be prepared to demonstrate that his screening policy is in no way based on race. According to HUD, it is, “Necessary to achieve a substantial, legitimate, nondiscriminatory interest.” The policy cannot be “speculative or hypothetical.” The landlord should, therefore, be prepared to show objective nondiscriminatory evidence that supports his screening policy.

For example, while the safety of other residents may be considered, the landlord should be able to prove through what HUD calls, “reliable sources” that his policy of denying a renter is justified.

Also, HUD does mention that a prospective tenant’s length of time since his conviction should be considered, as well as his recent rental history.

Beyond this, the National Association of Realtors (NAR) offers some advice for landlords in this regard:

Create a written policy which clearly indicates that you in no way intend to discriminate based on race.
Delay researching the individual’s criminal record until all the financial qualifications have been concluded.
Attach far lower importance to an arrest than a felony conviction. It’s also wise that while you may ask about convictions, questions concerning arrests should be avoided (In many states, it is legal to ask about convictions, but illegal to ask about prior arrests.)
Most importantly, when deciding whether to rent to a prospective tenant with a prior criminal record, always keep your policies consistent, or you may become subject to a claim of discrimination.