March 8, 2024

The United States Department of Housing and Urban Development (HUD) recently offered significant clarification concerning the Fair Housing Act (FHA). According to the related guidance, landlords with policies that ban anyone with a criminal record from housing risk violating the FHA. 

In the guidance, HUD explicitly stated, “The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics.”

The FHA explicitly prohibits intentional housing discrimination. It also bans landlords from enacting housing practices that discriminate against individuals based on various traits without justification. Examples include a person’s national origin, race, and other protected characteristics.

HUD also commented on the prevalence of racial and ethnic disparities in the U.S. criminal justice system. According to HUD, African-American and Hispanic individuals disproportionately face housing restrictions. One statement from HUD specifically commented on this concern; “Arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.”

The FHA does not ban housing providers from considering an individual’s criminal history. However, the Act requires landlords to follow a specific process when reviewing the information. Furthermore, the Act addresses arbitrary or overly broad bans when providing housing. Many interpreted this address to mean such actions will not have adequate legal justification.

The guidance also stressed the difference between arrests and convictions. For example, landlords cannot prove that denying housing due to arrests that did not end in a conviction will protect their property or residents’ safety. Even if an applicant has convictions, landlords must prove the necessity of policies that exclude these people. HUD stressed that maintaining a blanket ban barring anyone with criminal records will violate FHA.

Landlords must also prove how the policies do not discriminate. In addition, HUD commented on some policies that deny housing to those with convictions. The Department stressed how landlords cannot prove such policies are non-discriminatory. Examples include denials without considering when the conviction happened, the conduct involved, and what the individual has done since then.

Housing providers may consider the effects of an applicant with convictions involving violence. However, HUD encourages housing providers to review when the conviction occurred and what the individual has done since then. HUD expects it will provide more opportunities for those with criminal records to obtain housing.

Many hope this policy will improve fairness for those applying for housing. For example, the president and CEO of The Fortune Society in New York City voiced excitement about the guidance. She claimed they have fought against blanket discrimination for some time and hopes HUD will continue improving housing opportunities for those with records.

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.