How do you protect yourself from the protected criminal?

[Nicholas Miller]

I trust most active landlords have heard of the April 4, 2016 "Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions" 

For those of you who have read the guidance, what "policies and practices" have you put in place for specific prior criminal behavior? What are effective ways to word, non-hypothetical policies to ensure the safety of your residents and property?

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For those of you who have not, here are some highlights of the 10-page guidance.

-Section 2 top of page 2

"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

Section 3

"A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate."

There are three criteria that must be met to prove the landlord/provider is liable for discrimination.  (Again, if you have not read this document you really should as you could be found guilty of unintentional, but punishable discrimination)

Section B

"In the second step of the discriminatory effects analysis, the burden shifts to the housing provider to prove that the challenged policy or practice is justified – that is, that it is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the provider.  The interest proffered by the housing provider may not be hypothetical or speculative, meaning the housing provider must be able to provide evidence proving both that the housing provider has a substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the challenged policy actually achieves that interest.  Although the specific interest(s) that underlie a criminal history policy or practice will no doubt vary from case to case, some landlords and property managers have asserted the protection of other residents and their property as the reason for such policies or practices. 23 Ensuring

resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate, assuming they are the actual reasons for the policy or practice."

Again, my question is, what "policies and practices" have you put in place for specific prior criminal behavior?  What are effective ways to word, non-hypothetical policies to ensure the safety of your residents and property?...  Another question is, why has it become the responsibility of the landlord to fix the shortcomings of the criminal justice system?

[Gail K.]

I have/do rent to two tenants who have had criminal backgrounds.

First tenant was in a transition program for an extensive period of time (years); had a job working in maintenance at a local hotel which he faithfully rode his bike to (a distance of a good number of miles) because, of course, he was not allowed a car.   His supervisors spoke highly of him; even helped him with furniture, kitchen items when he moved in.  He was not a young man but someone in his mid-50's.  His tenancy with me lasted about 4 months; he went back to prison after knifing someone at a barbeque who was hitting up on the new girlfriend he had hooked up with.  I also found he had added a unapproved roommate; this guy made HIS living selling drugs out of my house.  He was kicked out when my tenant was evicted due to failure to pay rent.

My current tenant has an distant criminal past (selling drugs in another state).  Again, in his early 50's.  He's struggling with paying the rent ($750 a month) because of the type of employment he's limited to.

I'm finding that it's often a challenge for those who have been in prison to find decent employment.

Without decent employment they can't make decent wages.

Without decent wages they often won't meet income requirements.

This can be the reason to decline an applicant with a criminal background (as you might with any applicant who does not meet your income requirements).

Gail