If you’re a landlord with space to rent or lease, chances are good that you’re in the precarious position of having to screen housing applicants in a non-discriminatory fashion, while keeping your property and tenants safe.

Relying on criminal background checks as part of your housing application process is important, but it can also be a tricky business since it tends to walk a fine line between protection and discrimination. The unfortunate fact is that, in the case of a fair housing claim, the onus is on the landlord to prove that turning down a potential tenant was justified.

HUD Guidelines for Landlords

The US Department of Housing and Urban Development (HUD) is the governmental body responsible for evaluating claims of fair housing law violations. As such, HUD offers some valuable guidance for property owners and managers who routinely run criminal background checks as part of their applicant screening process.

To create an effective layer of protection against fair housing claims, you should start by:

  • becoming familiar with HUD’s 2016 housing application guidelines,
  • maintaining a strong, written screening policy that’s applied to each applicant equally, and
  • seeking legal counsel for the review and evaluation of your policy

HUD’s guidelines focus on what constitutes discrimination in a housing application denial. Because it can sometimes be difficult to prove that turning down a potential tenant was not an act of discrimination, there are a few points you should keep in mind when evaluating an applicant’s criminal history.

1. Consider Convictions Only

Make sure that your background screens don’t automatically reject applicants with arrest records if these individuals were never actually convicted of a crime. Without a conviction, the law says there’s no proof that an applicant ever engaged in illegal activity.

2. Avoid a Blanket Approach to Convictions

Even when your screening process reveals a prior conviction, it would be unwise to consider all convictions with equal weight. HUD advises that you look at both the nature and the severity of the conviction, while also taking into account how old it is. In general, the longer it’s been since a crime was committed, the less relevant it becomes, since the tendency of a criminal to reoffend decreases over time.

3. Employ a Case-by-Case Assessment Process

Start with an objective policy that outlines and upholds clear-cut standards, then follow with a case-by-case assessment of each tenant’s application. In the case of a discrimination charge, HUD is likely to look for proof of prior criminal activity that puts your property or residents at risk, while also evaluating such factors as:

  • the specific circumstances surrounding an applicant’s conviction
  • their age at the time of the conviction
  • their rehabilitation efforts since the conviction
  • their history as a tenant

Your best bet for avoiding a fair housing lawsuit is to make sure that your written screening policy is visible to all applicants before they apply, and that it’s strictly enforced throughout your property. If you own multiple properties, it’s okay to have a unique policy for each, so long as that policy applies to every applicant equally.

Using consistent criteria to determine the approval, denial, or conditional acceptance of a background check in terms of credit scores, evictions, and criminal offences, will ensure that the same standards are applied to all applicants across the board.