The impact of excluding tenants for prior convictions

SAN DIEGO – The Fair Housing Act prohibits discrimination in housing based on a protected class: race, color, religion, sex, disability, familial status, and national origin. In April 2016, the Department of Housing and Urban Development issued guidance on how prior criminal history is effecting prospective tenants from obtaining housing under intentional and disparate impact theories. HUD’s guidance can be found at GCGuidAppFHAStandCR.pdf.

Intentional theory

Intentional theory of discrimination is when a housing provider intentionally discriminates against someone in a protected class. This can occur even when a neutral policy is in place. For instance, if a housing provider has a policy of not approving prospective tenants who have been convicted of a felony and denies an African-American because of a criminal history, but approved a white tenant with a similar criminal history, then the housing provider has intentionally discriminated. Even though there is a policy of not approving prospective tenants who have been convicted of a felony, the housing provider did not apply the ban uniformly and used it as a pretext for denying the African-American prospective tenant.

Disparate Impact Theory

Disparate impact theory is when the housing provider has a facially neutral policy and applies it uniformly, but it impacts a group in one of the protected classes disproportionately than the other groups. Using the same policy as above, a housing provider may have a blanket policy of not allowing people who have been convicted of a felony and applies it uniformly to everyone who applies for housing. On its face, this does not seem like discrimination because the housing provider applies it to everyone and people who have been convicted of a felony are not a listed protected class in the Fair Housing Act. However, it could be discrimination under the disparate impact theory.

African-Americans and Latinos are incarcerated at a much higher rate than their percentage of the population. African Americans make up about 12 percent of the United States’ population, but are 36 percent of the prison population.¹ Latinos are 17 percent of the total population, but are 22 percent of the prison population.² That means that a blanket ban on prospective tenants that have a criminal history affects minority groups, which is a protected class under the Fair Housing Act.

HUD has now provided guidance regarding housing providers and using prior criminal history as part of their determination.

Step 1: Discriminatory Effect The first step of the analysis to for the complainant to show that the housing provider’s policy has a discriminatory effect. HUD stated that this has been established by looking at local statistics of incarceration rates or if that is not readily available, by looking at national statistics.

Step 2: Nondiscriminatory Reason The burden then shifts to the housing provider to show that it has a substantial, legitimate, and nondiscriminatory reason. Housing providers may argue that people who have been convicted of felonies are not good tenants, but this would not be sufficient. Citing reasons of other tenants’ health and safety may be sufficient. HUD did note that a blanket ban on people who have prior convictions without considering when the crime was committed, the nature of the crime, or rehabilitative steps taken, have not met their burden.

Step 3: Less Discriminatory Alternative The burden then shifts back to the complainant to overcome the housing provider’s substantial, legitimate, and nondiscriminatory reason with a less discriminatory alternative. This may be difficult to do, but HUD states that mitigating factors such as the circumstances of how or when the crime was committed, the age when the complainant committed the crime, and anything else that would not normally appear on the rental application.

The take-away is that housing providers cannot have a blanket ban on people who have been previously convicted of a crime. The housing provider is required to approve or deny the tenant on a case-by-case basis.

For More Information please call: The Legal Aid Society of San Diego, Inc. (844) 449-3500 1-877-734-2929 TTY

¹ 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, April 4, 2016, dAppFHAStandCR.pdf.

² Id.

8 Responses to "The impact of excluding tenants for prior convictions"

  1. FallbrookDweller   April 1, 2017 at 10:53 am

    So what you are saying is that I can not deny a tenant applicant solely based on them being a convicted arsonist, rapist, or murderer. What is this country coming to when we start having to bend over for convicted criminals?

  2. Gina   April 3, 2017 at 12:01 am


    I highly doubt a murderer is going to be renting from you. Lets be realistic!

  3. grunt   April 3, 2017 at 8:18 am

    Fallbrook dweller – right, and then when your apt complex is a center of crime, we blame you !

  4. FallbrookDweller   April 3, 2017 at 1:37 pm

    You have to rent your unit to a convicted felon, but your not allowed to carry a gun. Sometimes I feel like the powers that be want us all to be victimized so they can justify new laws taking away our freedoms.

  5. Wae Cupp   April 4, 2017 at 6:06 am

    Everyone needs a home. Ex-Convicts are able to buy a home without having to answer questions about prior criminal history on their loan applications.

    So why does the Housing Authority use prior criminal history to ban ANYONE with even misdemeanors on their record from renting an apartment? Well, it is simple. They feel they can use arbitrary and racially discriminatory practices denying tenants a place to live.
    Well newsflash people, criminals are everywhere and yes, they even own homes. What would you rather have? A huge homeless bunch of ex-cons?
    Landlords can’t determine who is a criminal and who isn’t, give me a break Grunt. It doesn’t matter who passes a background check, eventually any rental property owner will have a tenant accused/convicted of a crime.
    But think about it, why does anyone discriminate against tenants by requiring background checks just to have a place to live, when buyers don’t need to do the same in order to purchase a home?! It is pretty stupid if you really think about it.
    I would much rather that ex-convicts have a place to live, as opposed to roaming the streets homeless.
    People need to stop making renters scapegoats or blaming them for all the crime.
    And homeowners, if you did a search on localcrimenews.fallbrook you might be surprised how many neighbors of yours have been arrested/convicted of a crime. Anyone who thinks that the population of homeowners is somehow a saintly righteous and criminal free, seriously has their head in the sand. And no apartment complex is a “Center of Crime,” give me a break. Perfect example of stereotyping right there.
    And newsflash, there are many property managers/owners who have a criminal history as well.
    Remember all the De Luz residents who were pissed off that a registered sex offender purchased a home a while back? I am sure he wasn’t required to complete a background check for his loan application. Just saying….

  6. grunt   April 4, 2017 at 9:36 pm

    Cupp – it was Ok to ban felons, until it was discovered that minorities are greatly over represented so it suddenly became “racist” – ignore that the reason they are over represented is that they commit the crimes. If a felony buys a home, he has proven he has a means to pay for it – but would you really want a convicted child molester next door?

    How is “center of crime” stereotyping:? Where is the center of crime in Fallbrook? Sleeping Indian or the low income apts? Home owning felons are usually spread out; if they have a job and can afford the mortgage they probably left the lifestyle behind. Once felon after felon moves into a small area, such as apt complex, they tend to return to crime.

    I am strongly opposed to racial discrimination – but if I owned apts I would feel it was 1) my duty to the other renters to have as safe a place as I could and 2) my right as a property owner to not rent to someone who (not based on race) was a felon.

  7. CitySlicker   April 5, 2017 at 12:28 pm

    I feel that owners of private property should have the option to rent or not rent to anyone they choose.

  8. Imoscar   April 7, 2017 at 5:00 pm

    Just once, give the ex-convict a break, been through rehab and really just needs a chance to start anew… and the next thing one knows is their home was used to cook meth, it is now in a national database as such, decontamination cost aside, you now own a near worthless property and nobody to blame but yourself for trying to do the right thing.


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