Renting with a Criminal Conviction or Arrest Record - Tenant Resource Center



Renting with a Criminal Conviction or Arrest Record

We are, yet again, making updates to the website. We will work as quickly as we can. This is the 5th law change in 4.5 years and we are short-staffed (feel free to donate here). Until all the updates are made to the website and our training guides and our staff and volunteers are re-trained, brochures will not be available.

For quick summaries of the law changes, see our ATCP Changes Summary and Wis. Act 176 Changes Summary.

Think this is ridiculous? We do too! If you have immediate questions about these law changes, please call the sponsor of all of these bills, Sen. Frank Lasee's office at 608-282-3541.


Unless something else is written in your lease, one of five new laws might change your rights.

Purple text applies to leases and events as of 12/21/11 (2011 Wis. Act 108)

Orange text applies to leases and events as of 3/31/12 (2011 Wis. Act 143)

Green text applies to leases and events as of 3/1/14 (2013 Wis. Act 76)

Blue text applies to leases and events as of 11/1/15 (CR 14-038)

Maroon text applies to leases and events as of 3/2/16 (2015 Wis. Act. 176)

More information on law changes is available here. Have your lease available when calling the Tenant Resource Center so we can help you know what your rights and remedies are, including whether you can request double damages, court costs and reasonable attorney fees when you sue your landlord.


PLEASE NOTE: 

New Memo from the Dept. of Housing and Urban Development (4/4/16) Says Denying Applications for Criminal Records May Be Discrimination (more information here)

Landlords should exercise caution pending enforcement of new rules. Tenants who are denied may be able to file discrimination complaints in the future.

The information on this page was written prior to the new HUD memo. We will update this page as we know more about protections for people with criminal backgrounds, and possible consequences for landlords who discriminate against them.

In Dane County

Under 2011 Wisconsin Act 108, landlords in Dane County can now deny rental applications for criminal conviction records and arrest records. DCO 31.11(1)(e), former MGO 39.03(4)(d), Wis. Stat. 66.0104(2)(a)1.e. Eff. 12/21/11. Before the passage of 2011 Wis. Act 108, for a housing application to have past criminal conviction and arrest records considered in the  application proess, the charges had to be “substantially related to housing” (usually violent or drug-related crimes) and they could only look back two years from (approximately) the date the person got off paper (completed their supervision by the Department of Corrections, such as probation or parole).

- Note: Given the new HUD regulations, the state law prohibiting local laws could be overturned.

Outside of Dane County

Landlords outside of Dane County have always been able to deny tenants based on criminal background.

- Note: New HUD guidelines appear to place restrictions on these denials (more information here). Landlords should have a pretty clear, defensible, evidence-based policy for denials. Denials based on arrests or blanket denials based on convictions are no longer allowed. 

Other Forms of Discrimination

If a landlord is checking criminal backgrounds and/or denying tenants because of criminal convictions, they should do it for everyone, or be able to give a non-discriminatory reason for checking some people and not others. Just because landlords in Wisconsin can discriminate based on criminal backgrounds does not mean they can discriminate on the basis of race, color, religion, gender, national origin, mental or physical disability, familial status (including pregnancy), age, sexual orientation, marital status, ancestry, lawful source of income, and being a victim of domestic violence. Dane County and Madison have even more protections.

If a landlord were to do a criminal background check only for people of one race, for instance, then checking criminal histories could end up being discriminatory. See Discrimination

Housing Options

Short-Term Housing After Incarceration

Halfway Houses. If you are looking for housing immediately upon your release from prison or jail, you may qualify for a halfway house or other short-term housing program, such as ARC Community Services (for women). These programs require a referral from a probation or parole officer, or a social worker.

Subletting. Another option for quick, short-term housing is to sublet. You are on a lease and have all the protections of a tenant, you're just replacing one tenant who moved out early. Sometimes the tenant(s) can sublet directly to you without the landlord's permission, if they have a term lease that doesn't prohibit subletting. Even when the landlord has to give approval, they are sometimes more flexible with subletters. Look for listings on craigslist.

Motels/Hotels/Hostels. This may be an option for short-term housing. If you stay in a motel and have no other permanent residence, you are a tenant under the law. Wis. Stat. 704.01(1), ATCP 134.01(4) & 134.02(12) Some probation/parole officers don't allow this practice, but if you're staying in one it is very important to keep good documentation of having paid for your room. This proves you are a tenant in case the landlord does not respect your rights.

Staying with Friends or Family/Tenant-at-Will. Many people live with friends or family after a criminal conviction. If you pay money for household costs, even if you don’t have a signed lease you are legally a “tenant at will.” If you pay on a regular schedule (i.e. weekly or monthly), you are a "periodic tenant." Wis. Stat. 704.01(5) Your rights will depend on whether the person you pay is the owner or a tenant. If the person you pay is a tenant, make sure you are not violating a guest policy or other provision in their lease or the landlord could make you move out. If the person you pay owns the unit, or if they are a tenant who wants you to move, they must serve you a written, 28-day “non-renewal” notice as though you were a month-to-month tenant. Wis. Stat. 704.19 If you don’t move out they must take you to court in order to evict you. For more information, see Eviction.

Long-Term Housing After Incarceration

Renting from Large Management Companies. Larger management companies often have policies against renting to people with a criminal conviction or arrest record. There may be exceptions if you have a co-signer, if you have been off paper (completed a parole or probation obligation) for a certain amount of time, or if you were not convicted of a violent or drug-related crime. You can usually find their applications on their websites, and see what kinds of questions they ask. Enclose a letter with your application (see below for more information).

Renting from Smaller, Private Landlords. People with criminal backgrounds often have more luck renting from small landlords, who might only own a few properties and thus have a more personal relationship to their tenants. This makes it easier to put a face to your story, and ask them to look past your record and see you as a person. You can often find their listings on Craigslist, which is free for everyone to use, or on "For Rent" signs in a neighborhood you want to live in. Enclose a letter with your application (see below for more information).

Finding "Flexible" Landlords. Your local re-entry program (such as Circles of Support) might have tips on local landlords who rent to people with criminal convictions. These groups can provide very helpful advice in other areas as well. Enclose a letter with your application (see below for more information).

Public & Affordable Housing.  Many affordable housing programs (such as Section 8, public housing or Section 42 housing projects) will deny applications based on criminal background. Applicants can request an appeal. For more information, contact your local housing authority  or WHEDA (Section 42). 

Applying for An Apartment with a Private Landlord

 

What The Landlord Will Search For

When reviewing an application, most landlords will run a criminal background check using a free website called CCAP (Consolidated Court Automation Program) where they can see all criminal charges filed in Wisconsin against the prospective tenant, including sentences and other details. CCAP records also show evictions, charges, small claims court cases, traffic violations, and more. The landlords will use the basic information they are allowed to ask for on an application to search for you on CCAP: your full name and date of birth. 

To avoid confusion with people who share your first and last name, include your middle initial on the application.  This may help to prevent associating your name with the criminal actions of other individuals with familiar names.

If you have a parole or probation officer, or you’re following other court orders (for example, drug court), tell the landlord when you apply. Some landlords are more willing to rent to people who are still under supervision.

Especially with the new guidance that prohibits blanket denials for convictions, landlords must take specific factors into account, so don't be afraid to make a case for yourself! 

Disclosing Your Own Background Information

It is much better to disclose your record than to let the landlord discover it in CCAP without any explanation from you. When you take responsibility for and are honest about disclosing your background, you can make a good impression and put a human face to your story.

You might want to write a short letter (one page or less) and make copies to attach to all of your applications. Or, if you’re meeting a landlord in person, plan out what you’re going to say ahead of time. 

Tips For Using CCAP

  • Look up your own record in CCAP before writing or talking to a landlord. That way you know what they’re going to see and can plan your response.
  • Some landlords are not very careful when they search CCAP. If someone else with your name (or a similar name) has charges the landlord might mistake for yours, let them know. Point out that the other “Jane/John Doe” has a different birth date or middle initial, or if the charges were filed while you were incarcerated, or they live in a different county.
  • Some landlords don’t look to see the results of a case. If charges against you have been dismissed, let the landlord know this and tell them they can confirm it in CCAP by checking the full record and case details. You can also print this out and enclose it with your letter and application. More information on how to find those details is here.

How To Check CCAP

  1. Visit the website: www.wcca.wicourts.gov
  2. Read the agreement and click “I Agree” to enter the website.
  3. Enter your last name, first name, middle initial, and birth date, and click “Search.” Try it again without your initial and birth date to see who else shows up.
  4. To see the details for a particular case, click on the case number. You may be required to click “View Case Details” on another screen summarizing the results of the case.
  5. The case details will include the type of case, charges, and the names and addresses of the parties involved (where applicable). At the top of this screen, click the button for “Court Record Events” for more information.
  6. For help understanding the court records, visit the main CCAP page and click the links at the bottom under “Court Terms.” 

Tips for writing a letter

Be polite, professional, and brief. You might mention one or two positive, personal details about yourself, such as community service, hobbies, or things you will enjoy doing around the neighborhood. 

Examples of Things To Say In A Letter

  • “I’m writing to let you know that when you do a criminal background check, you will find the following charges: [list charges and dates.] I want to be honest with you about my past, which is very different from my present [add details] and my plans for the future [add details]. I think I will make a good tenant and I hope you will consider my application.” 
  • You might also list: The time you have served, programs you participated in (counseling, drug court, anger management, treatment, etc.), and any positive examples like early release for good behavior or mitigating circumstances. 
  • “If you have any questions or concerns please contact the following personal or professional references (including your probation or parole officer, if applicable): [List names, phone numbers, and addresses of personal references.]” 
  • Thank them for their time, then sign and print your name.  

Some sample letters are available here.

References and Rental History

Even if your most recent rental history was many years ago, provide as much information as you can. If you don’t have contact information for previous landlords, use a roommate, an old neighbor, or another community member who can provide a reference.

Personal references are not usually required but many people with criminal backgrounds will provide them as extra information. This might be someone you know through a faith-based organization, a friend or teacher, or someone you met through Circles of Support or another re-entry program. They should not be a spouse or family member. You can either provide their contact information or include a letter of reference.

Remember: You still have rights!

When a landlord accepts you as a tenant, you have the same rights as any other tenant in Wisconsin. For more information, see Tenant Resource Center’s website on topics like repairs, landlord entry, security deposits, and eviction. Here are some laws that specifically apply to people with a criminal background:

  • Sex Offenders: If the Department of Corrections approves it, you can live anywhere. No rules say whether landlords can or cannot rent to you, although some will not. If you are a registered sex offender, your landlord is NOT required to give this information to the other tenants or to prospective tenants unless they ask in writing about you specifically, and the landlord knows you are in the registry, otherwise, the landlord is only required to tell them they can look it up in the sex offender registry. Wis. Stat. 704.50
  • Eviction: Your landlord CANNOT evict you just because another tenant feels threatened by you. They can only evict you under the Safe Housing Act if that tenant (or their children) is named in an injunction, criminal complaint, or condition of release against you. Wis. Stat. 704.16

Calling Police:  Lease Provisions May Void Your Lease Agreement

In some neighborhoods, landlords are under pressure from the police and neighbors to cut down on police calls. Landlords may be threatened with violations of a chronic nuisance ordinance (MGO 25.09) if there are too many police calls.  This has caused many landlords to put potentially illegal clauses in their leases. MGO 25.09, Wis. Stat. 704.44 ATCP violation effective 11/1/15. ATCP 134.08, CR 14-038, Section 11

Wisconsin law says that a rental agreement is "void and unenforceable" if it allows a landlord to increase rent, decrease services, bring an action for eviction, refuse to renew, or to threaten any of these actions because a tenant has contacted law enforcement or emergency services for their safety. Wis. Stat. 704.44(1m)  ATCP violation effective 11/1/15, CR 14-038, Section 11ATCP 134.08  If this happens, the tenant can break their entire lease if they choose and they will no longer be responsible for that rental contract. A landlord, however, may not break a lease for this reason because they drafted the lease.  If the lease is not broken, that clause may not be enforced.

There have been several changes to the law about what language in a lease would make it illegal. The entire lease could be void and unenforceable if these clauses were in the lease. The changes made are noted below:

Clauses Rendering a Rental Agreement Void and Unenforceable.  ATCP 134.08 previously contained a list of “prohibited provisions”, and has been changed to contain a list from Wis. Stat. 704.44 of provisions which make a rental agreement “void and unenforceable.”

Clauses 2-8 of ATCP 134.08 are similar to clauses 1-7 in the old version of the rule, but now make a rental agreement “void and unenforceable” to be consistent  with Wis. Stat. 704.44. They also added to the list ATCP 134.08(1) (lease provisions which allow retaliatory acts due to calls for law enforcement, health or safety services), ATCP 134.08(9) (lease provisions which allow a landlord to evict a victim of a crime, because of that crime), and ATCP 134.08(10) (leases which have rules against crime must have a notice of domestic violence protections). CR 14-038, Sec.11  Eff. 11/1/15.

Tenants should not be afraid of being evicted for calling the police or emergency services for their own protection, or because there is criminal activity in the building or on the property which they (or their guests) did not cause!

However, while there are laws in place to protect you, if you are on probation or parole you may want to think carefully about the ramifications of calling the police and having them enter your apartment. If you are having on going issues at your residence you may want to talk to your probation or parole officer in advance about how to handle situations that might arise. Also, please read the next section for important news about evictions for suspected criminal activity by the tenant or their guests.

New Risk of Eviction for Suspected "Drug-Related" and Other Criminal Activity

Also, we are not sure what impact this new law will have if tenants choose to call the police:

As of 3/2/16, landlords can serve a 5-day eviction notice that does not give the tenant a chance to fix or "cure" the problem if they suspect that the tenant, a member of their household, or any guests or invitees, have engaged in:

  • criminal activity that threatens the health or safety of other tenants, people residing in the “immediate vicinity” of the premises, or the landlord or their agent or employee;
  • criminal activity that threatens the right to peaceful enjoyment of other tenants or people residing in the “immediate vicinity” of the premises; or
  • “drug-related criminal activity” on or near the premises.  Wis. Stat. 704.17(3m)(b), 2015 Wis. Act 176, Section 25

“Drug-related criminal activity” is the manufacturing or distribution of a controlled substance that is not prescribed by a doctor for medical use by a disabled person. The disabled person can manufacture, use or possess this controlled substance and it can be in the possession of their personal care giver or worker. Wis. Stat. 704.17(3m)(a)1. & 2., 2015 Wis. Act 176, Section 25

The 5-day no cure notice must:

  • require the tenant to vacate on or before a date at least 5 days after the giving of the notice,
  • state the reason for eviction,
  • include:
    • a description of the criminal activity of "drug-related criminal activity"
    • the date it took place
    • the identity or description of the individual(s) who engaged in the activity,
    • advise tenant she/he may seek assistance of legal counsel, a volunteer legal clinic, or "a tenant resource center", and
    • state that the tenant has the right to contest the allegations in the notice before a court commissioner or judge if an eviction is filed. Wis. Stat. 704.17(3m)(b)1.2015 Wis. Act 176, Section 25

The person engaging in the alleged criminal activity or "drug-related criminal activity" does not have to have been arrested or convicted for this activity in order for the landlord to issue a 5-day no-cure notice for a crime. Wis. Stat. 704.17(3m)(b)2.2015 Wis. Act 176, Section 25

This process cannot be used against the person who was the victim of the crime. Wis. Stat. 704.17(3m)(c)2015 Wis. Act 176, Section 25

If the tenant contests the eviction, the tenancy may not be terminated without proof by the landlord by the greater preponderance of the credible evidence of the allegations. Wis. Stat. 704.17(3m)(b)1.2015 Wis. Act 176, Section 25

For important information about these notices, please see our page on Eviction!

NOTES: 

  • If leases contain processes that conflict with this law, the lease provisions are invalid unless it is a lease longer than a year. Wis. Stat. 704.17(5)(a) & (b), 2015 Wis. Act 176, Section 26 & 27
  • The laws about criminal activity and “drug-related criminal activity” in Wis. Stat. 704.17(3m) and 704.19(2)(b)2. went into effect on March 2, 2016.  2015 Wis Act 176, Section 44, subsection 1
  • The laws about leases and language related to criminal activity in Wis. Stat. 704.17(5)(b) go into effect for all leases entered into or renewed as of March 2, 2016.  2015 Wis Act 176, Section 44, subsection 2
  • Wis. Stat. 704.44 language that makes a lease void and unenforceable was not changed.  Leases that contain these provisions would be void and unenforceable:
    • (9) Allows the landlord to terminate the tenancy of a tenant based solely on the commission of a crime in or on the rental property if the tenant, or someone who lawfully resides with the tenant, is the victim, as defined in s. 950.02 (4), of that crime.
    • (10) Allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under s. 704.14.
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