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HUD to landlords: Rent to ex-convicts

Or else face the consequences

Scales of justice with gavel

U.S. Department of Housing and Urban Development Secretary Julián Castro revisited they are not going to tolerate landlords banning renters with criminal records from leasing their properties.

According to HUD, the Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin.

HUD’s Office of General Counsel issues this guidance concerning how the Fair Housing Act applies to the use of criminal history by providers or operators of housing and real-estate related transactions. Specifically, this guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action – such as a refusal to rent or renew a lease – based on an individual’s criminal history.

According to the New York Times:

Julián Castro, the HUD secretary, is expected on Monday to announce guidance that details his agency’s interpretation of how the fair housing law applies to policies that exclude people with criminal records, a group that is not explicitly protected by the act but falls under it in certain circumstances. Federal officials said landlords must distinguish between arrests and convictions and cannot use an arrest to ban applicants. In the case of applicants with convictions, property owners must prove that the exclusion is justified and consider factors like the nature and severity of the crime in assessing prospective tenants before excluding someone.

Mr. Castro said housing bans against former offenders were common.

“Right now, many housing providers use the fact of a conviction, any conviction, regardless of what it was for or how long ago it happened, to indefinitely bar folks from housing opportunities,” Mr. Castro said in a statement. “Many people who are coming back to neighborhoods are only looking for a fair chance to be productive members, but blanket policies like this unfairly deny them that chance.”

HUD’s guidance released on April 4, 2016, states that as many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort. The United States prison population of 2.2 million adults is by far the largest in the world. As of 2012, the United States accounted for only about five percent of the world’s population, yet almost one quarter of the world’s prisoners were held in American prisons. Since 2004, an average of over 650,000 individuals have been released annually from federal and state prisons, and over 95% of current inmates will be released at some point. When individuals are released from prisons and jails, their ability to access safe, secure and affordable housing is critical to their successful reentry to society. Yet many formerly incarcerated individuals, as well as individuals who were convicted but not incarcerated, encounter significant barriers to securing housing, including public and other federally-subsidized housing, because of their criminal history. In some cases, even individuals who were arrested but not convicted face difficulty in securing housing based on their prior arrest.

Neither Castro nor the lawyers who advise property management companies and tenant screening services on fair housing issues, are surprised this is happening.

“Right now, many housing providers use the fact of a conviction, any conviction, regardless of what it was for or how long ago it happened, to indefinitely bar folks from housing opportunities,” Mr. Castro said in a statement.

“Many people who are coming back to neighborhoods are only looking for a fair chance to be productive members, but blanket policies like this unfairly deny them that chance,” added Castro.

The New York times also states:

The new federal housing guidance applies a legal standard that was upheld by the United States Supreme Court last year that allows plaintiffs to challenge housing practices that have a discriminatory effect without having to show discriminatory intent. The ruling allows plaintiffs to show instead that the practices both have a “disparate impact” on racial groups and are not justified. Blacks and Latinos are arrested, convicted and imprisoned in disproportionate numbers, and civil rights groups say they face equally disparate discrimination in finding housing.

Federal housing officials said the guidance was meant to emphasize to landlords that blanket bans are illegal, as well as to inform housing applicants of their rights. Housing officials said they can investigate violations and bring discrimination charges against landlords that could result in civil penalties for them, and damages for a person denied housing.

HUD’s revised guidance also discusses the three steps used to analyze claims that a housing provider’s use of criminal history to deny housing opportunities results in a discriminatory effect in violation of the Act.

1. Evaluating whether the criminal history policy or practice has a discriminatory effect

2. Evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest

3. Evaluating whether there is a less discriminatory alternative

“Criminal screenings when used properly have been a reliable way to protect an apartment community from threats to residents including children and from severe damage to the property or residents' property HUD has allowed for criminal screening for housing managers for many years.  A recently convicted and released sex offender may pose a serious threat to young children who freely play all around the property,” said Michael W. Skojec, lawyer and specialist from Ballard Spahr.  

“HUD has had a longstanding prohibition against allowing convicted dealers in illegal drugs from living in public housing and now says those convictions may be used to deny a housing application because they pose a serious danger to others living nearby. Individuals who have been convicted of shooting, stabbing or raping other people are likely to be a greater threat to other residents based on the historic rates of repeat offenders,” added Skojec.

In October 2015, HUD announced it awarded $38 million total to more than 100 groups to be used for fighting housing discrimination.

The money is being awarded as part of HUD’s Fair Housing Initiatives Program.

According to HUD, the funding provided through the competitive grants will help to support a range of fair housing enforcement efforts, including fair housing testing, as well as activities that help educate the public, housing providers and local governments about their rights and responsibilities under the Fair Housing Act.

On April 1, 2016, HUD kicked off Fair Housing Month 2016 with the launch of a new national media campaign that helps the public to envision what communities with shared opportunity for all might look like. The new campaign is designed to further educate the public about their housing rights and the ideals behind HUD’s new Affirmatively Furthering Fair Housing initiative.

The campaign, developed in partnership with the National Fair Housing Alliance, will include print and television public service announcements in English and in Spanish, as well as online videos and social media. 

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