Can landlord deny my rental application if I am a felon?

Recently on our legal forum a user asked, “I am a landlord. I recently had an applicant who was arrested for felony assault when he was very young. He is now twenty-five years of age, and he has not had any other criminal arrests or convictions. I am hesitant to lease to a felon. In fact, I am afraid if he does something illegal like injure someone on the property I might be liable for the damages. As a landlord can I deny an application for a felony conviction? What are my rights to protect myself versus his rights to adequate housing?”

Legal rights of a landlord

Although a landlord is legally allowed to establish appropriate rules for tenancy of their property, there are certain laws they must adhere to. Landlords cannot violate antidiscrimination laws under the Federal Fair Housing Acts (42 U.S. Code § § 3601-3619).

For example, a landlord is allowed to reject certain tenant applications if the landlord decides the tenant does not have sufficient income, the tenant has negative references from prior landlords, or the tenant has a felony criminal conviction. The landlord may not, however, discriminate based on race, color, religion, national origin, gender, age, familial status (having children), and physical or mental disability (including alcoholism and past drug addiction).

Ambiguity in housing policy

Now, having said all of that, it’s important to note that there has been a recent push to increase the ability of felons to find appropriate employment and housing opportunities. Specifically, in April of 2016, the Obama Administration issued a warning to all of the nation’s landlords for refusing tenancy to applicants with a criminal record.

In fact, the Department of Housing and Urban Development (HUD) stated that that although the Fair Housing Act did not include criminals as a protected class, “the arbitrary denial of criminals as tenants was a form of racial discrimination given the racial imbalances in the U.S. justice system.”

Additionally, HUD added, “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.”

What does this mean for you as a landlord?

So what does this mean for landlords? Although denying someone tenancy based on a criminal record may not be illegal, landlords need to be careful about blanket refusals of all criminals. In fact, this type of refusal may be inadvertently discriminating against African Americans with very little justification.

A better method for determining whether a criminal or felon is a good tenant is to review each person on a case by case basis. For example, do you have evidence that this person’s criminal history will threaten the safety of your property? Have you reviewed the circumstances of their conviction? Do they have a history of violence or was it a one time occurrence? What charges were filed against them? Are you treating all applicants equally? Do you reject all applicants with criminal records or just those who are African American or Hispanic? Is the your policy keeping your community safe or just keeping a specific group of people out of your home?

Bottom Line:

Although the law allows a landlord to discriminate based on criminal background, public sentiment is moving towards increasing protections for felons, specifically as they relate to employment and housing. Proponents of the protection argue that rehabilitated felons should be allowed to reintegrate into society and to have sufficient find housing and employment.

Others would argue that a landlord has a vested interest in keeping their property safe and secure and should have the freedom to rent to whomever they choose without governmental interference.

The bottom line is that landlords should try to avoid all forms of discrimination and use common sense approaches when choosing tenants. Specifically, andlords should evaluate each potential tenant on a case-by-case basis. working hard to avoid any discrimination which could be considered racist.

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