HUD Threatens To Sue Landlords Who Screen Tenants For Felonies

[Matt Moldenhauer]

How is everyone else planning on handling this?

http://www.investors.com/politics/editorials/hud-t...

The Obama administration has just made it easier for felons to move in next door. Landlords who don’t want tenants who are going to mug their neighbors or deal drugs will now be treated as racists and potentially sued.

Last week, the Department of Housing and Urban Development issued new guidelines to landlords, warning that bans against renters with criminal convictions violate the Fair Housing Act because they disproportionately affect minorities.

In effect, the Obama regime is now outlawing criminal background checks for apartment rentals, even though such screening is critical for the protection and security of tenants and property, and serves a legitimate business need.

In a newly released 10-page missive, HUD warns landlords they can be held liable for discrimination if they deny housing over criminal records.

"HUD will use the full force of the law to protect the fair housing rights of folks who've been arrested or who're returning to their communities after serving time in jail or prison," HUD Secretary Julian Castro warned.

By "full force," he means the "disparate impact" theory of civil-rights enforcement, which HUD claims is written into the Fair Housing Act even though the phrase appears nowhere in the statute.

Disparate impact holds businesses liable for colorblind policies and practices that may have adverse outcomes for minorities — in this case, screening all apartment applicants for criminal histories. It doesn’t matter if there is zero intent to discriminate in carrying out such polices. The policies will be condemned as racist regardless.

"The ‘disparate impact' standard is one of the most powerful tools we have to stamp out discrimination," Castro said. "And I want you to know that HUD will not be shy about using it."

Even if applied evenly and neutrally across all races, HUD claims that screening policies have a discriminatory disparate impact on African-Americans who "are arrested at a rate more than double their proportion of the general population." In other words, it asserts, landlords could be breaking the law when they refuse to rent to black ex-cons with long rap sheets — even if they have no intention of discriminating — because such a policy would likely have a disproportionate impact on them.

So now landlords, real estate agents and property managers will think twice before turning away drug dealers and thieves, even rapists, who are members of this “protected class” — even though barring high-risk tenants serves a legitimate, nondiscriminatory purpose.

This puts landlords in a terrible legal bind.

To protect themselves from federal action, they would be wise to avoid even inquiring about the criminal records of prospective tenants. But if they fail to adequately screen them and rent to one who robs or hurts a neighbor, they could be sued by the victim for negligence.

No doubt many will see no option but to raise rents to indirectly exclude criminals from their rentals, which will just end up hurting everybody who rents housing — including innocent, law-abiding tenants.

Obama's new rule makes it easier for HUD to resettle urban minorities into affordable housing in the suburbs, as part of a controversial regulation it finalized last year — Affirmatively Furthering Fair Housing — which threatens to cut off funding to local municipalities that refuse to lift zoning restrictions on low-income housing.

The federal mandate — whose goal is racially balancing the nation, ZIP code by ZIP code — also threatens to import violent crime into the suburbs, while lowering property values and negatively impacting local schools.

As kitchen table issues go, these are major developments. Disappointingly, none of the presidential candidates is talking about them.

[Nathan Gesner]

Sue is exactly right. The HUD representative said nothing has changed. The laws are the same and has been proven in court for decades. The guidance issued last week was a clarification based on existing laws and it basically says you need to treat everyone equally and ensure you are not behaving in a manner that could be seen as discrimination.

He brought up a great example. After Hurricane Katrina, a city close to New Orleans passed an ordinance that said homes could only be rented to blood relatives. There is nothing illegal with that ordinance. HOWEVER...it was illegal because it was passed in a city that was 80% white knowing that the citizens of New Orleans (primarily black) would be looking for places to live. So while it is legal to say they will only rent to blood relatives, the true purpose of their law was to keep the people of New Orleans from renting in their town. It's a round-about way of discriminating, known as "disparate impact."

The HUD representative wasn't aware of some of the examples we brought up. For example, the HUD statement says we shouldn't discriminate against people with an arrest record. One member asked, "What about a guy that was arrested and is out on bail waiting for a trial?" The HUD rep said, "Don't rent to him!"

The point is that you have to have a policy that is fair, does not impact a particular protected class differently, and that is justifiable. It's what all of us should already be doing. I don't need the government to create protected classes because I will treat everyone honestly and fairly. Unfortunately, laws are created for the minority that refuse to treat people kindly.