📜 Criminal History in Tenant Screening

Criminal background checks are one of the most legally complex areas of tenant screening. Used carelessly, they can create Fair Housing liability. Ignored entirely, they can create genuine safety risks. This guide explains how to use criminal history in screening legally, consistently, and defensibly.

▶ Video Overview

The Legal Framework — HUD Guidance

HUD’s 2016 guidance on criminal records and the Fair Housing Act established that blanket policies excluding all people with any criminal history may constitute disparate impact discrimination — because criminal records are disproportionately concentrated in certain protected groups (particularly race and national origin).

This doesn’t mean you can’t consider criminal history. It means your policy must:

• Be tailored to identify convictions that genuinely indicate risk to residents or the property
• Conduct individualized assessment rather than automatic blanket exclusion
• Consider the nature of the offense, recency, and relevance to tenancy
• Not consider arrests without convictions as evidence of criminal conduct

Fair Chance Housing Laws — City and State Restrictions

Beyond HUD guidance, many states and cities have enacted “Fair Chance Housing” or “Ban the Box” laws that impose specific restrictions on how landlords can use criminal history:

Check your state’s tenant screening laws for the rules that apply in your city.

The Individualized Assessment Framework

Even where not legally required, individualized assessment is the defensible approach. For any conviction that might affect your decision, evaluate:

1. Nature and severity of the offense

   Is the offense directly relevant to tenancy? Crimes against persons (assault, domestic violence, sexual offenses) and property crimes (burglary, arson, vandalism) are more relevant to tenancy risk than other offense categories. Drug possession offenses are generally less relevant to whether someone will pay rent and care for property.

2. Recency and age of the conviction

   A violent offense from 15 years ago with no subsequent criminal history is statistically very different from the same offense from 2 years ago. Research generally shows that risk of recidivism decreases substantially with time. A 10-year-old conviction after which the person has demonstrated stability deserves more weight than a recent one.

3. Evidence of rehabilitation

   Look for positive indicators since the conviction: stable employment history, positive references, stable housing history, completion of treatment programs or rehabilitation, absence of subsequent offenses.

4. Relevance to the specific property

   A multi-family property with families and children may warrant more conservative evaluation of certain offense types than a single-family home. The impact on other residents is a legitimate factor.

Building a Legally Defensible Criminal History Policy

Your written policy should specify:

• Which offense types may be considered (e.g., violent crimes, sex offenses, property crimes)
• The lookback period for each category (e.g., convictions within 7 years for property crimes)
• That arrests without convictions will not be considered
• That individualized assessment will be conducted for any potentially disqualifying record
• What factors will be considered in individualized assessment
• The process for applicants to provide context or explanation

Automatic Disqualifiers — What You Can Safely Deny

The only automatic disqualifier most fair housing attorneys agree on is: lifetime sex offender registry status. Manufacturing and distributing controlled substances with intent to distribute on the premises is also commonly accepted as grounds for denial. Beyond these, blanket bans require individualized assessment to be defensible.