Background Checks

Fair Housing: Blanket Criminal Record Ban May Be Disparate Impact Racial Discrimination

 

Possessing a criminal record isn’t a protected class under the FHA. However, statistics show that a disproportionate number of African Americans are arrested and incarcerated in the U.S., as compared to white persons. As a result, a rental policy of excluding any person with a criminal record may constitute what’s called “disparate impact” discrimination against African Americans and nationalities with disproportionately high arrest and prosecution numbers. Six of the 84 cases in this year’s Scorecard included allegations of FHA discrimination on the basis of criminal record. Criminal record discrimination may also be banned under state or local fair housing laws.

     

    Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated.

    Background Checks – Always

     

    This article is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues. 

     

    A very recent court case highlights the ongoing importance of always conducting background checks on potential tenants.  This particular situation arose at an RV park when two overnight guests refused to vacate despite never being offered a rental agreement.  There were unusual circumstances that led to the situation, but the main point is to never let anyone become a tenant without running a thorough and accurate background report first.


     

    Phil Querin Q&A: Applicant Has Criminal Background Concerned About Accepting as Temporary Occupant

    Question. A guest has applied for temporary occupant status in our park.  He has a lengthy criminal record and we are concerned about approving him as a temporary occupant.  When we informed him, he claimed that he could not be denied because of prior criminal activity from 10 years ago.  He also said that since the community does not require a background checks for ‘guests’ he would stay with different friends throughout the park for 14 days and then move to another friend in the park.  Two questions - can we still deny based on a criminal record from 10 years ago - our screening criteria clearly says we can.  And what do you do if he starts ‘couch surfing’ every 14 days with a different friend in the park?

     

     

    Criminal Background Checks - HUD's Published Perspective


    Criminal background checks - always a popular issue. Of course you can use them to screen prospective applicants, right? You may be surprised.


    The use of criminal background checks in the residential housing rental and lease application process has recently become a hot button issue. Back on April 4, 2016, the U.S. Department of Housing And Urban Development's ("HUD") General Counsel issued a 10-page memorandum on "Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions" ("Guidance").



    Phil Querin Q&A: Background Checks and the Fed's 7 Year Rule

    Question.  I spoke with someone recently who informed me that Federal Law (i.e. the Fair Credit Reporting Act) prohibits criminal background checks beyond seven years.  Yet I am concerned that with some crimes, e.g. child molestation, it would be important to know if there were any convictions, not just those within the last seven years.  It also appears that HUD seems to be saying the same thing.  I am getting mixed information on this issue. Can you help clarify?

    Phil Querin Q&A: Thirteen Year Old Boy Grows Up - Resident WIthout a Background Check

    Question: A family moves into a manufactured housing community with a thirteen year old boy. Five years later the parents vacate the home but leave the boy who is now eighteen. Even though the eighteen year old was never subject to a background check, never signed a rental agreement etc., is he now a considered a resident?

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