It is a standard part of our business practice in today’s world that professional apartment management implement a background screen for all applicants for housing. The background screen typically has criminal, income, and credit components. An issue that comes up from time to time is what to do about applicants and/or residents with criminal histories. HUD regulations make clear that management companies are permitted to develop and enforce guidelines that we believe are in the best interest of our employees, our property, and our other residents.
Some criminal issues are easy: applicants with a history of crimes of violence, drug use, or sexual misconduct are simply disqualified. Many other offenses are in a gray area and management companies typically work from a list of offenses as to what may, or may not, disqualify an applicant from living in a given apartment community. Another related factor is just how far back can management look into the past of an applicant? One year? Five years? Forever? While various housing advocates have recommended that HUD implement a definition for a “reasonable time” — at least to date the government has not done so. And, in fact, the HUD guidance notes that it is up to the discretion of each management company to develop and implement its admission policies. Indeed, while HUD views a five year look back as appropriate for many serious crimes, the government recognizes that some housing providers have a different view. I have clients who look at different offenses in different manners — neither is necessarily right, neither is necessarily wrong. And neither is against the law.
Also, as you think about background screens – remember that criminals or individuals with a criminal history are not a protected class under the Fair Housing Act. Typically the claim will be that a restrictive criminal background requirement has a “disparate impact” on one (or more) of the protected classes in the law.
Just A Thought.