Worried a record will end your rental application? A tenant screening criminal background check can be challenged: under HUD’s April 2016 guidance, landlords generally cannot rely on arrests alone or blanket bans on every conviction.
This guide is one part of the broader topic of affordable housing for people with records.
| Item | Value |
|---|---|
| HUD guidance on criminal background checks issued | April 4, 2016 |
| Fair Housing Act protected classes | Seven |
| Arrests without a conviction | Should not be used to deny an applicant |
| Blanket ban on any criminal record | Likely would not survive a discrimination charge |
| Convictions for manufacturing or distributing controlled substances | Statutory exception: landlords need not offer housing |
| Lifetime sex offender registration, project-based HUD subsidized housing | Must be prohibited |
The figures and dates above come from Holland & Knight’s April 2016 analysis on JD Supra and a North Carolina Real Estate Commission bulletin. Guidance and rules can change, so check the source before you rely on them.
What a tenant background check usually includes
Landlords almost always screen rental applicants in some way, often with reports from specialized tenant screening companies. A National Consumer Law Center press release dated May 3, 2024 says these reports typically combine criminal records, eviction filings and credit history.
Some reports also carry a score or recommendation that the company says comes from artificial intelligence. The same release warns that AI tools can worsen discrimination, for instance through racial disparities in the data used to train the models.
The stakes are wide. NPR reported in April 2016 that one in four Americans has a criminal record, and that records can include arrests that never led to convictions.
How does the Fair Housing Act limit criminal record screening?
The Fair Housing Act bars discrimination against anyone in its protected classes. The North Carolina Real Estate Commission’s bulletin lists seven: race, color, religion, national origin, sex, disability and familial status.
People with criminal records are not a protected class themselves, NPR explained. But HUD’s general counsel guidance, issued on April 4, 2016 according to Holland & Knight, says a neutral-looking policy can still break the law if it has a disparate impact on a protected group.
HUD’s reasoning rests on disparities in the justice system. The guidance states that criminal history-based restrictions on access to housing are likely to burden African-Americans and Hispanics disproportionately, as the National Low Income Housing Coalition quoted it.
Holland & Knight’s summary describes a three-step, burden-shifting standard:
- A plaintiff or HUD shows that the policy has a disparate impact on a protected group.
- The housing provider must prove the policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest.
- The burden shifts back to show that another practice with a less discriminatory effect could serve that interest.
The National Low Income Housing Coalition noted that the guidance applies to both federally assisted housing and private-market housing, which is broader than earlier HUD guidance on arrest records.
Arrests, convictions and the factors landlords should weigh
HUD treats arrests and convictions very differently. An arrest without a conviction is not a reliable basis for assessing risk to residents or property, according to the National Low Income Housing Coalition’s summary.
When a person has been convicted, that summary says the policy must be applied case by case. The landlord should consider:
- the nature and severity of the conviction;
- what the individual has done since the conviction;
- how long ago the conviction took place.
The North Carolina bulletin adds that a shoplifting conviction should not weigh the same as one for distributing cocaine. It also notes that HUD gives no set look-back period, and it lists mitigating factors such as the surrounding events, the person’s age at the time, rehabilitation efforts and rental history.
Broad rules fare badly. HUD’s guidance says bald assertions that anyone with a record poses a greater risk are not sufficient, and landlords must show reliable evidence that a blanket policy protects residents and property, as the National Low Income Housing Coalition reported.
Records also cannot be used as cover for bias. NPR’s example is a landlord who rejects Black or Hispanic applicants over records but accepts a white tenant with a similar record, which could violate the Fair Housing Act.
Where the rules allow exclusions
As of the April 2016 HUD guidance, as summarized by the North Carolina bulletin, the Fair Housing Act does not require landlords to offer housing to people with convictions for manufacturing or distributing controlled substances. Other drug-related convictions are not specifically exempt.
The same bulletin says project-based HUD subsidized properties must prohibit anyone subject to a lifetime registration requirement under a state sex offender registration program. These are narrow exceptions rather than a licence for blanket bans.
Subsidized programs add their own admission rules, so if that is your route, read about how to apply for public housing before you submit anything.
What the 2024 screening guidance says about applicants
The May 3, 2024 press release reports that HUD’s Office of Fair Housing and Equal Opportunity issued guidance on tenant screening practices, including the use of criminal records, eviction records and credit history. It says housing providers and screening companies should:
- screen only for information relevant to predicting whether someone will be a good tenant;
- use only accurate records;
- let applicants dispute information, even when it is accurate, such as an eviction related to domestic violence;
- make written screening policies publicly available and follow them;
- give detailed reasons for a denial, with copies of any screening reports relied upon;
- consider other income sources, such as Housing Choice Vouchers.
That list reflects the press release as of May 2024, and it does not cover any later changes. If you want a different angle on housing people who face barriers, you can read about what is housing first.
Practical steps if a record might come up
This is general education, not legal advice, and the sources here cover federal guidance only. With that in mind, these steps follow from what the guidance describes:
- Ask the landlord for its written screening policy, since the 2024 guidance says such policies should be readily available.
- If you are denied, ask for the detailed reasons and a copy of any report the landlord relied on.
- Check the report for errors, and dispute anything inaccurate or out of context.
- Gather mitigating information: the circumstances, your age at the time, rehabilitation efforts and your rental history.
- Note whether similar applicants were treated differently, because that can point to a pretext for discrimination.
Frequently asked questions
Can a landlord deny me because of an arrest?
Show answer
HUD’s guidance, as summarized by the National Low Income Housing Coalition in April 2016, says an arrest without a conviction is not a reliable basis for assessing risk. A policy of excluding people for arrests alone cannot meet the legal burden the guidance describes.
Can a landlord refuse everyone with a conviction?
Show answer
According to NPR’s April 2016 report on the guidance, refusing everyone with a record regardless of when it happened, what the conduct was or what the person has done since is not defensible. Landlords are expected to look at the specifics.
Are there convictions a landlord can always consider?
Show answer
As of the April 2016 guidance summarized by the North Carolina Real Estate Commission, landlords need not offer housing to people convicted of manufacturing or distributing controlled substances. Lifetime sex offender registration also triggers a ban in project-based HUD subsidized housing.
Does the guidance cover private landlords?
Show answer
Yes. The National Low Income Housing Coalition’s April 2016 summary says the guidance applies to both federally assisted housing and the private market.
What if the screening report is wrong?
Show answer
The May 2024 guidance described by the National Consumer Law Center says only accurate records should be used and applicants should be able to dispute information. Ask for a copy of the report to find the error.
