Hello, Best Internet Beloveds! Long time, no write. Let's change that, shall we? And how about we start it off with a good 'ole two-parter.
In April, HUD came out with some "guidance" (their word) about using criminal history to screen applicants. When landlords use criminal history when choosing tenants, HUD says that's likely not legal. HUD has a whole thought process about why that is, and since we're not attorneys, we'll break the logic down for you, and you can draw your own conclusions.
This post is about how these rules might impact tenants, who may be living in housing or searching for housing, and the next part in this series will be for landlords, and how they might navigate these new rules.
First of all, here is HUD's document: "Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions." This is one of the more readable legal-y documents that I've read, so give it a go.
The basic premise is this: In the US, African Americans and Hispanics are arrested, convicted and incarcerated at a rate disproportionate to the general population. ("Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males.") Therefore, any policy that screens housing applicants based on their criminal history is likely to have a "disproportionate impact on minority homeseekers," even if the landlord had no intent to discriminate. (Disproportionate/disparate impact is a big deal in Fair Housing Law - it's the basis by which things can be legally classified as discriminatory.)
Tenant Screening: HUD says that landlords can have a policy about screening potential tenants based on their criminal history, but according to the new rules, those policies have to be pretty specific.
The policy can't:
- Deny all tenants with all kinds of criminal convictions.
- Deny tenants who have only been arrested, not convicted.
- Make any decisions to deny based on criminal history or make exceptions to criminal history denials based on race, or other protected classes. (That's illegal). For example, looking at the criminal history of only Hispanic applicants would be illegal. Or, allowing exceptions to a criminal history policy, but only to White applicants, would be illegal.
The policy should:
- Take into account how long ago the conviction was.
- Distinguish between how severe past crimes were, and what kinds of crimes they were.
- Have some kind of evidence-based justification for existing. Why does the landlord need the policy? What evidence contributed to establishing that need?
The policy is allowed to:
- Look at individual circumstances for each applicant, if the landlord wants to give someone an exception to the policy (which would otherwise deny them). Note: exceptions can't be based on an applicant's membership in a protected class.
- Deny potential tenants if they were convicted of the manufacture or distribution of drugs.
- Check other qualifications (i.e., credit scores, housing history) before addressing the criminal side of things
How a Tenant Would Challenge a Discriminatory Screening Policy: The big question is, how would this work? The document seems to suggest these steps:
- Apply. A tenant applies for housing.
- Get rejected. The landlord denies the tenant.
- Ask for the reason for rejection. (HUD didn't say this one - we put this step in.) It's a really good idea to put this in writing - either ask for a written rejection, or if you get a verbal one, write it down and send it (suggestions here for how to make that work).
- If the landlord says it's because of criminal history, ask for their criminal history screening policy. (HUD didn't say this one - we put this step in.) Please, for the love of all that is holy, do this in writing.
- Challenge the policy as being discriminatory. Explain, in writing, that this policy doesn't conform to HUD's guidance on use of criminal records. Cite the exact line that says so, if you can. (We can help you point to one, but look at next week's landlord's guide to these rules for some specific quotes.)
- Landlord responds to discrimination concerns, and explains why their policy is necessary. HUD says, "a housing provider must... be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property."
Option A. If the landlord doesn't explain why the policy is necessary, (either they don't say anything, or their explanation doesn't meet the standard in #6), then to take further action, you'd need to make a Fair Housing complaint. The easiest place to start is the Fair Housing Council, but if you'd like a longer list of places you can complain, contact us.
Option B. If the landlord does successfully explain why the policy is necessary, you can still challenge the policy by showing that the landlords could have had the same results with another policy that is less discriminatory. HUD says, "In the third step, the burden shifts back to the plaintiff or HUD to prove that such interest could be served by another practice that has a less discriminatory effect."
Criminal Activity While Living in Rental Housing: This is really complicated business.
Wisconsin recently passed a law which allows landlords to give 5-day notices with no right to cure if there is "criminal activity" that threatens the health/safety/peaceful enjoyment of anyone in the "immediate vicinity." Now, giving a 5-day notice with no right to cure because of "criminal activity" seems to contradict some components of this HUD document, which says that any policy using criminal records can't be based solely on arrests, and must take into account the kind of crime, severity of the crime, and time since it happened.
Now, we aren't attorneys. And, these laws are still newbies, which mean that there hasn't been a lot of cases that have been based on these laws - it's hard to know what's working with judges and what isn't. That said, it looks like if a landlord wanted to evict someone based on "criminal activity," that landlord would need to follow some of the same rules put forth in this HUD document before they could "exclude" that tenant from housing.
A tenant challenging an eviction notice based on these HUD laws would probably do well to follow similar steps to those above:
1. Receive a 5-day notice with no right to cure for criminal activity. Before jumping in to argue the discriminatory impact of that notice, it seems like a good idea to check if it's a legal notice. You can check the law, but here are the basics. According to Wis. Stat. 704.17(3m)(b)1., a 5-day no-cure notice for criminal activity 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, including:
- a description of the criminal activity or “drug-related criminal activity,”
- the date it took place, and
- 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.
2. Dispute that notice, in writing. This is standard for what we recommend. You'd probably want to follow one of these three methods:
- Dispute the notice. Explain why it didn't follow the criteria stated in the law.
- Dispute the criminal activity. Since this is a no-cure notice, you're only real grounds for dispute here is saying that the criminal activity didn't occur.
- Dispute the notice based on this HUD document. Ask for a written policy describing under what circumstances they use criminal activity eviction notices.
- A landlord's evidence-based justification for the policy might be that a crime occurred that threatened the safety of residents. If this is true, they don't need to prove it in criminal court - they only need to prove that it reasonably happened in Small Claims Court, where the burden of proof is lower (only 51%, compared to criminal court's 100%, "beyond a shadow of a doubt"), and the penalty is also less extreme (losing housing vs. going to jail).
- If your case is being heard at the "return date" or "initial court hearing" or "joinder conference," you always have the right to ask for a trial in front of a judge on a different day. If your case was decided by a court commissioner, you can ask for a do-over right away, and ask that the case be heard by a judge.
- It is illegal for a landlord to choose to evict only certain residents for criminal activity when that decision to evict is different based only on protected classes: race, gender, age, family status, and so many more.
- You might want some help with this! Here is our attorney referral list.
The question of what this really means for tenants - that's not totally clear yet. It's hard to say what this might mean for you, and how, exactly, you should act on that. There are certainly more arguments that you can make to protect your housing, but whether or not they'll be successful... it's hard to say.
For many parts of tenant-landlord law, the laws are upheld by people asserting their rights, the other party challenging that assertion, and a judge making a decision. When these transactions happen, the wider community gets a stronger sense of what those rights are, and the party-in-the-wrong spreads that knowledge to his/her peers - this is how rental culture gets changed. It's important work, and it depends on all of us.
Hi! Did you know that we aren't attorneys here at the TRC? And this isn't legal advice, either. If what we've written doesn't sound right to you, consult with someone you trust. A list of housing attorneys is available here.