Prospective Tenants & Criminal Records
Q: I recently joined the board of my condominium association. Several rental applications have been turned down because the person has a criminal record. Can we do that?
A: It depends. The HUD has interpreted the Fair Housing Act and set up guidelines for screening prospective tenant applications. If your association has a blanket policy for denying all applicants with a criminal conviction or denying applicants with an arrest that did not result in a conviction, your association is likely violating the Fair Housing Act. If, however, your association evaluates each application based on the impact the prospective tenant may have on the community based on his/her prior convictions then the association may be in the clear.
It is common for HOA’s and Condo Associations to screen prospective tenants and owners. The goal is to maintain a peaceful community that is safe for its residents and visitors. Board members and unit owners have an interest in deciding who they share their community with, unfortunately the HUD thinks different.
According to the HUD’s interpretation of the Fair Housing Act, it is not always okay to deny a prospective tenant solely because of their criminal record. According to the HUD, if denying applications based on a criminal record has a disparate impact on a group of persons of a particular race or national origin then the screening process may run afoul of the Fair Housing Act. Furthermore, according to the HUD, there is no data to support that that a person with prior convictions is more likely to commit crimes, therefore it is not okay to deny an application based solely on a history of convictions.
Here is a useful checklist suggested by the HUD that your association can use to determine whether your screening process violates the Fair Housing Act.
Does our screening process have a disparate impact on persons of a particular race, ethnicity or national origin?
Does our association have a legitimate interest for screening prospective tenants and unit owners based on a criminal record? (Maintaining a community with common values is not enough)
Does our association impose a blanket policy, if so, the association should consider these factors instead:
Whether the applicant’s offense bears a relationship to the safety and security of other residents
The level of violence of the offense
Length of time since the conviction
The number of convictions