HUD Issues Directive Warning Refusing To Rent Based Upon Tenants Criminal History May Be Discrimination

Earlier this month, General Counsel for 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 Providers of Housing and Real Estate-Related Transaction“.  This guidance has caused concern among many landlords as many, in an effort to assure safe housing for their tenants, do criminal background checks on prospective tenants and have a policies against renting to applicants with a criminal background, a practice that, according to this guidance, may very well be considered to be discriminatory now.

Do landlord have to rent all all convicted felons?

While the guidance does not appear to remove a landlord’s ability to establish some restrictions on who they rent to with regard to prior convictions, however does say:

“But housing providers that apply a policy or practice that excludes persons with prior convictions must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.”

The guidance goes on to make it clear that a blanket prohibition against any person with any conviction, is not going to fly:

“A housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.”

So, as is often the case, there is a lot of gray area here.  Below I have the entire guidance letter which goes into much more detail.

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