Landlords are able to request a criminal record check on potential tenants. This is done in order to help protect the landlord and the property, as well as any other tenants living in the same building or complex. The information obtained from a criminal record check can be used to make an informed decision about whether or not to rent to a particular individual. However, there are some restrictions on what information landlords can request and how they can use it. For instance, landlords cannot ask about arrests that did not result in convictions and they cannot use criminal history information to discriminate against protected classes of individuals.
Fair Housing Act Considerations
The Fair Housing Act (FHA) prohibits discrimination in housing based on several protected characteristics, including criminal history. This means that landlords cannot make decisions about renting a property to someone based on their criminal history unless:
- The landlord has a legitimate business reason for doing so.
- The criminal history is directly related to the safety and security of other tenants or the property.
- The landlord applies the policy consistently to all applicants.
Landlords who violate the FHA can be held liable for damages, including back rent, attorney’s fees, and punitive damages.
Here are some additional things to keep in mind when considering a criminal record check:
- Landlords cannot ask about arrests or charges that did not result in a conviction.
- Landlords cannot discriminate against applicants who have been convicted of a crime if the conviction is old enough (typically seven years) and the landlord has no reason to believe that the applicant poses a risk to the safety of other tenants or the property.
- Landlords cannot discriminate against applicants who have been convicted of a crime if the conviction was for a non-violent offense.
If you are a landlord, it is important to consult with an attorney before implementing a criminal record check policy. An attorney can help you ensure that your policy complies with the FHA and other applicable laws.
| Protected characteristic | Landlord can discriminate |
|---|---|
| Race | No |
| Color | No |
| Religion | No |
| National origin | No |
| Sex | No |
| Familial status | No |
| Disability | No |
| Criminal history | Yes, if there is a legitimate business reason, the criminal history is directly related to the safety and security of other tenants or the property, and the policy is applied consistently to all applicants. |
State and Local Laws
The laws regarding a landlord’s ability to request a criminal record check vary from state to state and locality to locality. Some states and localities have laws that specifically prohibit landlords from requesting criminal record checks, while others allow it under certain circumstances.
In general, landlords are more likely to be able to request a criminal record check if the property is located in a high-crime area or if the landlord has a legitimate business reason for doing so, such as protecting the safety of other tenants or employees, or preventing property damage.
For example, the following table summarizes the laws in some states regarding landlord’s ability to request a criminal record check:
| State | Laws |
|---|---|
| California | Landlords are prohibited from requesting criminal record checks for rental housing. |
| Florida | Landlords are allowed to request criminal record checks for rental housing, but only if the landlord has a legitimate business reason for doing so. |
| Illinois | Landlords are prohibited from requesting criminal record checks for rental housing, unless the landlord is renting to a person who will be living in close proximity to children or vulnerable adults. |
| New York | Landlords are allowed to request criminal record checks for rental housing, but only if the landlord has a legitimate business reason for doing so and if the landlord provides the applicant with a written notice of the request. |
It is important to note that these laws are subject to change, so it is always best to check with the local housing authority or attorney to find out the specific laws in your area.
Screening Criteria
When evaluating potential tenants for a rental property, landlords are allowed to consider various criteria to ensure the safety, suitability, and comfort of their tenants and the property. These criteria, known as tenant screening criteria, typically include factors such as:
- Credit history
- Employment history
- Rental history
- Income
- Character references
- Criminal background
The specific criteria used by landlords may vary depending on local laws, landlord policies, and the specific rental property. However, all screening criteria must comply with federal, state, and local fair housing laws, which prohibit discrimination based on certain protected characteristics, such as race, color, religion, national origin, familial status, and disability.
| Permissible Screening Criteria | Prohibited Screening Criteria |
|---|---|
| Credit history | Race |
| Employment history | Color |
| Rental history | Religion |
| Income | National origin |
| Character references | Familial status |
| Criminal background | Disability |
As indicated in the table above, criminal background checks are generally permissible as part of the tenant screening process. However, landlords must use these checks consistently and fairly, without discriminatory practices based on the protected characteristics outlined in fair housing laws.
Criminal Record Checks
When conducting criminal background checks, landlords have the responsibility to:
- Obtain the tenant’s written consent before running the check.
- Use a reputable and reliable consumer reporting agency for the check.
- Clearly disclose to the tenant that a criminal background check will be conducted as part of the screening process.
- Consider the specific crime, the date of the crime, and the relevance of the crime to the rental property when evaluating the results of the background check.
- Never discriminate against a tenant based on their criminal history unless the circumstances warrant refusal to rent in accordance with fair housing laws.
Landlords should also be aware of the Fair Credit Reporting Act (FCRA), which regulates the use of consumer reports, including criminal background checks. The FCRA requires landlords to provide tenants with a copy of the background check report and a notice of their rights under the FCRA.
By conducting criminal background checks in a fair, consistent, and compliant manner, landlords can help maintain a safe and secure rental environment while adhering to fair housing laws.
Tenant Consent
In most jurisdictions, landlords are legally obligated to obtain the tenant’s consent before conducting a criminal record check. This consent can be obtained in writing or verbally, and it must be specific to the criminal record check being requested.
The tenant’s consent should include the following information:
- The purpose of the criminal record check.
- The type of criminal record check being requested.
- The scope of the criminal record check.
- The source of the criminal record check.
- The timeframe for the criminal record check.
The tenant should also be informed of their right to withdraw their consent at any time.
| Jurisdiction | Landlord’s Right to Request Criminal Record Check |
|---|---|
| California | Yes, with tenant consent |
| New York | Yes, with tenant consent |
| Florida | Yes, with tenant consent and certain limitations |
| Texas | Yes, with tenant consent |
Thanks for reading our article on landlords and criminal record checks. We hope you found it helpful and informative. If you’re a landlord, we recommend that you do your due diligence and screen potential tenants carefully. A criminal record check is just one tool you can use to help you make an informed decision about who to rent to. Just remember to follow all applicable laws and regulations when conducting a criminal record check. And if you’re a tenant, we hope you understand why landlords might request a criminal record check. It’s not about discrimination, it’s about protecting the safety of everyone in the community. We appreciate your understanding. Thanks again for reading, and we hope to see you back here soon for more informative and engaging content.