Prospective tenants with a criminal record

[Mark Forest]

What is the current law on refusing to rent to prospective tenants who have criminal records?  Thank you in advance.

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Suggestions Regarding Criminals & Tenant Screening

Last Updated: 10 months ago in Property Management - Various TopicsTags: criminal, criminal and fair housing, fair housing tenant screening

This year HUD issued guidelines dictating to landlords that they must not use a blanket "no criminals" screening criteria. Since then, the RPOA has been discussing the new policy with the Fair Housing Center of West Michigan and our attorneys. We've also received various suggestions from other sources such as CBC, AmRent and the National Association of REALTORS.

Based upon these discussions and communications, the RPOA offers the following suggestions for its members. Members should note, however, that none of these suggestions have been approved by HUD or tested in a court of law. HUD has provided very little information on what crimes it deems "severe" or how long a person should be out of prison before being considered a low-risk tenant. Time and court cases will only prove what the new guidelines really mean.

Establish written criterion that follows the HUD guidelines and does not discriminate against protected classes.

Do not screen out prospective tenants based solely upon their arrest record.

Do not screen out prospective tenants based solely upon a conviction of drug possession.

Establish screening criteria that take into account the severity of the crime and how long the person has been out of incarceration. For example, strict screening criteria that excludes a 58-year-old male that was convicted and served time for selling cocaine when he was a teenager, might be deemed out of compliance with the guidelines. However, criterion that excludes anyone convicted of terrorism may be permissible.

Use criterion that protect your business interest. Was the person convicted of a crime that could jeopardize your rental property or financial interest, such as check fraud, arson, malicious destruction of property, etc.?

Use criteria that protect the health, safety and welfare of yourself, your tenants and the neighbors where your property is located. In other words, consider the nature of the crime. Was it a crime such as embezzlement or tax evasion that did not endanger a person? Or, was it a violent crime such as rape and kidnapping?

Do not use a criterion that discriminates against a protected class.

Use your written criterion consistently.

Use tenant history first when screening. Was the prospective tenant evicted recently? Did the previous landlord(s) give them a good reference or a poor one?

Use credit history, income verification and amount of income before applying criminal screening. Does the prospective tenant have the ability to pay the rent? What is their history of making payments on rent, mortgages and other debt?

To make things simple, the RPOA recommends members use the RPOA AmRent Decision Report which has been reviewed by Fair Housing. Or at the very least, use similar criteria as that used for Decision Reports.

The RPOA still opposes the new guidelines. For more on why the RPOA opposes the guidelines, go here.

For more information, the RPOA offers a course throughout the year on “Marketing & Screening for Paying Tenants”. Check out our calendar to see when this class is being offered again to get the full scoop on best screening practices and to ensure your screening practices are in compliance with fair housing rules and regulations. Register here.

Disclosure: This Knowledge Base article is accurate as of the last update. Laws and policies are subject to change. 

Clay Powell