PLEASE NOTE: A Memo from the Dept. of Housing and Urban Development (4/4/16) says denying applicants due to criminal history may be discrimination (more information here). Landlords should exercise caution pending enforcement of new rules (here is some information for landlords about this memo). Tenants who are denied may be able to file discrimination complaints in the future (here is some information for tenants about this memo).
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 programs, 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 programs (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!
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 choose between people 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.
Landlords Can Now Charge Out-of-State Applicants for Background Checks
If a prospective tenant is currently living out of state, a landlord can charge up to $25 for a background check in addition to a credit check fee. The tenant must be notified of the charge before it happens and the landlord must provide a copy of the report. However, tenants can continue to be charged by other prospective landlords even if the tenant has a recent report. Wis. Stat. 704.085(2), 2017 Wis. Act 317, Sec. 41. Eff. on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.
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 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 or professional references.]”
- Thank them for their time, then sign and print your name.
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
- Visit the website: www.wcca.wicourts.gov
- Read the agreement and click “I Agree” to enter the website.
- 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.
- 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.
- 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.
- For help understanding the court records, visit the main CCAP page and click the links at the bottom under “Court Terms.”
Removing Civil Cases in CCAP
Unless a civil case is closed, confidential or sealed, a civil case may be removed from CCAP as follows:
- If a writ (court order) has been issued in an eviction, the case can now be removed after 10 years have passed, or Stat. 758.20(2)(a), 2017 Wis. Act 317, Sec. 46.
- If an eviction has been dismissed and there is no money judgment docketed, the case can be removed after 2 years. Stat. 758.20(2)(b), 2017 Wis. Act 317, Sec. 46. Eff. on or after 4/18/18. 2017 Wis. Act 317, Sec. 56.
These law changes do not apply to criminal cases, but it may help you with any old civil records that might also work against you.
How are Landlords allowed to use your criminal background in choosing whether to rent?
HUD released a memo in 2016, and the basic premise of that memo 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.)
HUD sets out some pretty clear rules regarding what a policy must look like, if a landlord wishes to screen for criminal history.
The criminal screening 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 criminal screening 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 criminal screening 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 HUD guidance 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). (NOTE: Both the City of Madison and Dane County have ordinances currently in their written code that say that a landlord needs to give reasons for denials of rental applications. However, 2013 Wis. Act 76 seems to have made that requirement illegal, so it's best not to take those ordinances at face value).
- 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.) 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. (Look at our 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, a Fair Housing complaint would need to be made. Look at our Discrimination page for information, or seek help from the Fair Housing Council.
Option B. If the landlord does successfully explain why the policy is necessary, the policy can still be challenged 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."
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), CR 14-038, Section 11. ATCP 134.08. ATCP violation effective 11/1/15. 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 clauses in the lease that could make the lease void are noted below. A clause that:
- Allows the landlord to terminate the tenancy if a crime is committed in or on the rental property, even if the tenant could not have reasonably prevented the crime. Wis. Stat. 704.44(9), 2011 Wis. Act 143, Sec. 35m. This was only effective for leases entered into or renewed after 3/31/12 through 3/1/14.
- 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 of that crime, as defined in Wis. Stat. 950.02(4). Wis. Stat. 704.44(9), 2013 Wis. Act 76, Sec. 25. Eff. for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15, ATCP 134.08 (9). CR 14-038, Section 11.
- 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 of Domestic Abuse Protections required under Wis. Stat. 704.14. Wis. Stat. 704.44(10), 2013 Wis. Act 76, Sec. 26. Eff. for leases entered into or renewed on or after 3/1/14. ATCP violation effective 11/1/15, ATCP 134.08(10), CR 14-038, Section 11.
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 ongoing 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.
Evictions for Suspected "Drug-Related" and Other Criminal Activity
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,
- 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
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!
- 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 the following provisions would be void and unenforceable. A provision that:
- 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.
- 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.
Contesting a 5-day No Cure Eviction for Criminal Activity based on the 2016 HUD Memo
Giving a 5-day notice with no right to cure because of "criminal activity" seems to contradict some components of the 2016 HUD guidance, 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. The memo says, "this guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action – such as a refusal to rent or renew a lease – based on an individual’s criminal history." This is still relatively untested, as far as discrimination cases go, but 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 the 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:
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. As stated above, 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.
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, your 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.
Argue your case in court. More about Small Claims Court is here, and more about the general eviction process is here. Keep in mind:
- 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"). 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.