A Landlord’s Guide to Screening Applicants with Criminal Records

Criminal background checks are a standard part of the tenant screening process, but they’re also a bit legally sensitive. Landlords have a duty to protect their property, other tenants, and neighbors while complying with fair housing laws that dictate how criminal records can be used in rental decisions.  Automatic rejections based on the existence of a criminal record are unlawful in many states, and that’s why every landlord needs a legally compliant method for making decisions. Blanket bans aren’t allowed It’s not illegal to consider an applicant’s criminal history, but the law limits how that information can be used. Blanket bans are illegal. Landlords are required to show a clear connection between a specific conviction and a legitimate concern. This requires reviewing every applicant’s criminal history on a case-by-case basis rather than rejecting everyone with a record. And the same screening criteria must be applied to all applicants. For example, if a landlord denies some applicants for a particular conviction, they can’t make exceptions for other applicants with the same conviction. Individualized reviews are required Landlords are allowed to consider each applicant’s criminal history individually to assess key factors like the nature of the offense, how much time has passed since the conviction, and evidence of rehabilitation. Not all crimes present a risk connected to tenancy, and housing laws require landlords to recognize this distinction. The nature of the offense matters and should be considered. This approach aligns with the best practices suggested by HUD and reduces the potential for legal trouble. For example, an applicant with a domestic violence, drug manufacturing, burglary, or arson conviction could likely be rejected based on the risk they might pose to the property and neighborhood. However, an applicant convicted of healthcare fraud wouldn’t pose the same risk. Denying this applicant because of their criminal conviction could get a landlord sued. “White collar offenses don’t present the same immediate risk to property or neighbors as violent or drug-related crimes,” says a defense attorney from SBBL Law. “These cases involve finances and compliance issues, not physical harm.” It’s critical for landlords to conduct assessments for each applicant to stay legally compliant and to document the exact process used for every rejection. Only convictions may be considered Sometimes arrests show up on background reports even when they didn’t result in a conviction. Landlords can’t use arrest records as a reason to reject an applicant because arrests aren’t evidence of criminal conduct. How much time has passed matters Applicants with a criminal history in the distant past are less of a risk than someone with a recent conviction. Research has shown that the likelihood of someone reoffending drops as time passes without new convictions. Landlords should consider whether an old conviction poses a threat now. A study conducted by the Bureau of Justice Statistics found that people who were able to go 7-10 years without being arrested had recidivism rates similar to those without a criminal record. To make standards consistent, many landlords create a fixed “lookback” period of five or seven years to maintain fairness and consistency while screening applicants. It helps to allow applicants to provide context It’s strongly advised to give applicants the chance to explain their criminal history. Doing so demonstrates good faith compliance and can reveal whether an offense is a genuine concern. For example, crimes committed as a young child or teenager may not reflect a person’s current behavior. And approval is worth consideration when applicants can show proof of rehabilitation, like positive rental references and completed treatment programs. Taking these extra steps to allow applicants to share more about their criminal history gives them a fair chance of being approved and establishes a defense for the landlord in case they’re accused of discrimination. Be aware of state and local laws In addition to federal laws, sometimes states and local jurisdictions have additional laws. For instance, some states have stricter rules about how criminal history can be considered or even asked about. In Seattle, it’s illegal for landlords to inquire about, require disclosure of, or even run a criminal background check with limited exceptions for sex offenders and landlords who live in the property. Screen for risk without violating the law As a landlord, you’ll always find criminal records during the tenant screening process, but it’s crucial to handle approvals and rejections legally based on federal, state, and local laws. In most cases, you can evaluate the nature of the offense and make your decision based on immediate risk, but not everywhere.  If you’re not sure what the rules are in your area, a lawyer will help you comply with all applicable laws.