Landlords Cannot Institute Blanket Bans on Convicted Criminals, Says HUD.

by: Jason Osbourn

04/05/2016 09:53 AM EST
  blanket ban  

The U.S. Department of Housing and Urban Development (HUD) issued a report Monday which concludes that landlords who enact blanket bans on renting to convicted felons would be in violation of the Fair Housing Act (FHA).

HUD’s conclusion draws from last year’s case of Texas Department of Housing and Community Affairs v. Inclusive Communities Project, 576 US ___ (2015) in which the United States Supreme Court ruled that housing policies which are not intentionally discriminatory but which, nevertheless, have a “disparate impact” on protected classes are in violation of the FHA.

Prior to this ruling, the FHA only banned those policies which were intended to exclude people by race, religion, gender, national origin, or other protected class. Following this ruling, landlord policies which appear non-discriminatory but which have the effect of discriminating against a protected class may be in violation of the FHA.

HUD’s report has applied this principle to bans on convicted criminals. This report begins by detailing the high incarceration rate of Americans. In 2012, even though the population of the United States accounts for 5% of the global population, our 2.2 million prisoners constituted almost one quarter of the world’s prison population. The report states that nearly one-third of all Americans have a criminal record of some sort. Because Blacks and Hispanics are more likely to be arrested, convicted, and incarcerated than the general population, they are disproportionately more likely to have a criminal record. Consequently, they are more likely to be excluded by a blanket ban on renting to persons with a criminal record than persons of other races.

For reasons too complex to detail in a short blog post, HUD is not and cannot claim that landlords are unable to refuse to rent to convicted criminals individually, only that their refusal must be particularized to that individual. A landlord to who declines to rent to a person because of the nature and severity of the specific crime they committed, how recently the crime was committed, and/or how that conviction may impact other tenants would probably not violate the FHA. HUD’s warning applies only to blanket bans on all persons with a criminal record regardless of the circumstances. Even then, it only applies to those landlords whose rental property is subject to the provisions of HUD.

The full report issued by HUD can be found here:

If you are concerned about how this new ruling may impact your rental or if you need help some other residential landlord/tenant issue, please call Newburg Law, PLLC at 517-505-2323 and ask for Jason.