New landlord- pre-screen questions

[David Orrick]

What type of pre-screen questions do you ask potential tenants before showing your property ? I have my first rental ready and listed. What questions should I ask over the phone before even conside ring meeting a person. THANKS

[Matt Shields]

Many here have suggested asking about felonies. Be aware that in 2016 HUD issued a new guidance, telling landlords and home sellers that turning down tenants or buyers based on their criminal records may violate the Fair Housing Act. Mid-America Apartments is currently being sued for refusing to rent to anyone with a felony conviction.

People with criminal records are not a protected class under the Fair Housing Act, but blanket policies of refusing to rent to applicants with a felony record are de facto discrimination according to HUD. Instead, landlords should have a written policy that takes into consideration what the crime was and when it happened, as well as other factors, to reduce the discriminatory impact. This policy must be applied to all applicants. (The only exception is if a conviction was for manufacturing or distributing illegal drugs.)

From The Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions:

2. Exclusions Because of Prior Conviction 

In most instances, a record of conviction (as opposed to an arrest) will serve as sufficient evidence to prove that an individual engaged in criminal conduct. But housing providers that apply a policy or practice that excludes persons with prior convictions must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden. One federal court of appeals held that such a blanket ban violated Title VII, stating that it “could not conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”

Although the defendant-employer in that case had proffered a number of theft and safety-related justifications for the policy, the court rejected such justifications as “not empirically validated.” A housing provider with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.

A policy or practice that fails to take into account the nature and severity of an individual’s conviction is unlikely to satisfy this standard. Similarly, a policy or practice that does not consider the amount of time that has passed since the criminal conduct occurred is unlikely to satisfy this standard, especially in light of criminological research showing that, over time, the likelihood that a person with a prior criminal record will engage in additional criminal conduct decreases until it approximates the likelihood that a person with no criminal history will commit an offense.  Accordingly, a policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest” of the provider. The determination of whether any particular criminal history-based restriction on housing satisfies step two of the discriminatory effects standard must be made on a case-by-case basis.

Click here for the entire 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