Tenants with criminal backgrounds is a topic that landlords need to be careful about when selecting potential tenants. A guidance from the Department of Housing and Urban Development (“HUD”) suggests that a landlord’s decision to outright deny renting to any potential tenant with a criminal background can constitute housing discrimination.
What is Housing Discrimination?
Housing discrimination is when a landlord refuses to rent to a tenant based upon a protected classification. Housing discrimination comes from both federal and state law. State law, which is broader than the federal housing discrimination laws, prevents discrimination on the basis of:
- National Origin
- Familial Status (i.e. children)
- Source of Income (e.g. a Section 8 voucher)
- Sexual Orientation
- Gender Identity
- Marital Status
- Veteran or Active Military Status
- Genetic Information
There are some exemptions to these laws, but they are narrow in scope. The best practice for Massachusetts landlords is to assume that housing discrimination laws apply to all of their rental properties, and proceed with extreme care and caution when selecting tenants.
Potential Tenants With Criminal Backgrounds: What To Do
Tenants with criminal backgrounds are not a protected class from discrimination. However, a HUD guidance advises that a landlord’s blanket refusal to rent to tenants with criminal backgrounds may be discriminatory.
Why? As explained in the guidance:
Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability).
Importantly, a landlord can commit racial discrimination even if they had no intention of doing so, if their actions (while neutral in nature) have the result of discriminating against a protected class over others (known as disparate impact).
With this in mind, landlords need to be careful when dealing with tenants with criminal backgrounds. A landlord should never outright refuse to rent to a tenant simply because the tenant has a criminal arrest or conviction. Rather, the landlord needs to make such decisions on a case-by-case basis, and decide if there is a real justification for denying a tenant solely from a criminal past.
As with all matters regarding landlord-tenant law, landlords should keep detailed, written records of all potential tenants, in case an issue ever arises.
If you need assistance with a landlord-tenant matter, contact me for a consultation.