Criminal background checks of tenants remain a crucial protection for landlords, who still have much to learn about how to run them and interpret their results fairly.
By John Triplett
Landlords are facing backlash from groups claiming the use of criminal background checks unfairly discriminates against prospective tenants. Reacting to a seven-page letter from the American Civil Liberties Union, the City of Savannah, Georgia, suspended a program in February of 2018 that allowed landlords to refuse occupancy to potential renters with criminal backgrounds. In New York City, the owners of an apartment complex have been in court since 2014 for declining to rent to people with criminal records.
The federal government joined the debate in 2016. Now landlords and tenants are waiting on the courts to decide whether new guidance issued by the Department of Housing and Urban Development (HUD) goes too far—or far enough—to prevent unlawful discrimination.
Don’t play with fire
Charles Tassell, director of governmental affairs for the Greater Cincinnati and Northern Kentucky Apartment Association, has owned multifamily properties for years and has spent more than two decades of public service helping landlords and tenants get fair treatment.
Tassell says running background checks can solve problems before they occur.
“Being a property owner who’s had a gun flashed at me from a tenant’s drug-dealing boyfriend who moved into the unit, I want to know who I’m renting to,” Tassell said. “I want to know who they’re associating with beforehand to eliminate as many of those potential problems and crises as possible.”
Laziness toward background checks amounts to gambling away your investment, Tassell says.
“Do you want to open up an asset you own that is worth anywhere from $30,000 to $3 million to somebody you don’t know?” Tassell said. “They could be a proven arsonist, or a sexual predator, and you’re just going to let them into your building?”
Cast a wide net in criminal background checks
Not all criminal background checks are created equal. They range from local police reports to nationwide scans of multiple databases. Local police reports tend to exclude out-of-state crimes.
Tassell says landlords who rely on tenants to obtain their own police report may not be seeing the full picture.
“If you don’t have a professional that does a country-wide scan and screening, then you’re not getting information you need to make good judgments about who you are leasing to,” Tassell said.
Innocent until proven guilty
Important as they are, however, background checks are simply a screening tool, not a “guilty” verdict.
Tassell said landlords should distinguish mere arrests from actual convictions, because “we have a long-standing tradition in this country, and it’s a very good tradition, that you are innocent until proven guilty.”
Arrests are not judgments, so they do not (and should not) carry the weight of convictions, according to HUD guidance issued in 2016.
Avoid ‘disparate impact’
Even landlords who do distinguish arrests from convictions can run afoul of HUD’s guidance. Landlords who automatically reject tenants who have criminal pasts risk making a “disparate impact.”
Disparate impact is the theory that applying a rule equally to everyone can still be a discriminatory practice.
For example, African-Americans and Hispanics are arrested and convicted in higher proportion than the general white population. Therefore, refusing to rent to people who have criminal backgrounds—or even just to felons—will affect more African-Americans and Hispanics than whites.
Tassell says landlords can avoid disparate impact by screening for specific kinds of crimes.
“HUD wants us to look at our policies and at specific felonies instead of just saying ‘no felonies’ across the board,” Tassell said.
Landlords can still say “no” to felons, but they should be more lenient toward prospective renters whose criminal history is far behind them or less severe than that of other criminals.
“HUD has asked property owners to determine different lengths of time for different felonies,” Tassell said. “That may mean that some felonies are not accepted.”
Crimes with high recidivism rates (greater likelihood of being repeated) justify longer wait periods before entering a lease, Tassell says.
“The reason sexual predators are regarded more at arm’s length is because the recidivism rates are typically much higher,” Tassell said. “Crimes of passion, such as assaults or even murder, typically have very low recidivism rates.”
Fool me once….
Landlords are free to “weight” crimes more heavily than others to avoid getting repeatedly burned by criminal tenants, Tassell said.
“You have to justify why you are banning that felony specifically, and you want to have that reason written into your background check policy,” Tassell said.
For example, Tassell’s experience allows him to ban prospective renters convicted of writing fraudulent checks.
“I can tell you about one personally,” Tassell said. “It was a scam check writer. He would have cost us $2,500 if we hadn’t caught it and worked with the banks to go after the fraud.”
Whatever a landlord’s specific policies, criminal background checks at least help landlords defuse the concerns of good tenants.
Generally, a prospective tenant’s criminal history is a private matter among the renter, property manager, and property owner. But sometimes local law enforcement may announce to the whole community when a convicted felon moves in.
“If you’ve done your criminal background checks and you know it in advance, that’s fine, but if you didn’t know it, now you’ve got egg on your face,” Tassell said.
Residents of multifamily housing may move out. Property owners should count the cost sooner than later.
“Those are business decisions you’ve got to make,” Tassell said.
Looming policy debate
Some communities are pushing to ban criminal background checks from the initial tenant approval process.
Tassell says such bans would create a two-stage application process misleading to tenants and landlords alike.
“Typically, if you’ve gone through and found they have enough money, credit, and all that, then you would do a background check,” Tassell said. “You may have to tell somebody, ‘Yes, we think we’re moving you forward. Oh, by the way, no, we can’t.’”
Some advocate banning criminal background checks from the entire screening process. That would be bad for business, Tassell says.
“Rental property is a business, and there’s a risk management side to it,” Tassell said. “The criminal background check is an essential aspect of managing that risk.”
Read previous story from Charles Tassell here: Evictions: They are not the terrible landlord’s fault