As noted in my post from last week, I want to provide the professional apartment management community with a couple of initial recommendations with respect to criminal screening criteria that may be in use at your properties in the wake of the HUD guidance published on April 4, 2016.

First, the use of criminal screening remains acceptable and appropriate. It goes without saying that if you run criminal background screens (and I believe management should do so), we must ensure that all applicants have their backgrounds checked. The legitimate business reason for the screens, of course, is for the protection of other residents, property employees, and the community itself. And as leasing offices attempt to apply our non-discriminatory resident selection criteria evenly across the board, HUD’s guidance will make it harder to do so as the federal government wants us to almost do an individualized, particularized analysis on each applicant with a criminal history. It is just going to be more labor intensive to apply our criteria as HUD now suggests. Nevertheless, here are some preliminary thoughts:

  1. Do not simply use an arrest record as an arrest which did not lead to a conviction cannot be used to prove unlawful activity.
  2. With respect to many prior convictions, HUD’s view is that to simply disqualify all applicants without regard to when the conviction took place (in other words, how long ago in time) or the nature of the conviction will violate the Fair Housing Act (FHA). As such, when viewing your criminal offense matrix, pay particular attention to the types of offenses and how long you believe it appropriate to look back in time.
  3. Additionally, review the “nature and severity” of an applicant’s offense. For example, will the specific conduct make the applicant a greater risk to other residents and property?
  4. While HUD clearly does not like blanket denials for any felony committed at any time in the past, the HUD guidance does not provide further analysis with respect to how long ago is too long. To be sure, the best advice will likely be that management should be prepared to defend whatever look back period we propose to use.
  5. If your criminal screening results in what would otherwise be a straight denial of an applicant, HUD’s position is clear that management should consider “relevant mitigating information” from the applicant concerning the offense. While that sounds fine in the abstract, in practice that type of individual assessment could well turn into an additional burden for leasing office employees. Nevertheless, this could well develop into the new normal for our industry.

This is the precise type of issue for which you may indeed want to spend a little time with a lawyer like me. HUD and various fair housing tester/legal aid entities will attempt to enforce the new criminal screening guidelines. I guarantee it. You don’t want to be the test case. Or you will really need to visit with a lawyer like me.