Fair Housing Regulations Consideration of Criminal History

Under the recently released Fair Housing Regulations (“Regulations”), the Department of Fair Housing and Employment (“DFEH”) clarified what a landlord can consider when screening their potential tenants.  These Regulations are incredibly important to both landlords and property managers as they are likely to effect current screening tenants for prospective tenants. 

Fair Housing Regulations Consideration of Criminal History

Under the recently released Fair Housing Regulations (“Regulations”), the Department of Fair Housing and Employment (“DFEH”) clarified what a landlord can consider when screening their potential tenants.  These Regulations are incredibly important to both landlords and property managers as they are likely to effect current screening tenants for prospective tenants. 

Generally, the Regulations prohibit the use of criminal history Information if the use of information results in a discriminatory effect, amounts to intentional discrimination, constitutes a discriminatory statement, or it otherwise creates a discriminatory practice.  Essentially, landlords and property managers cannot establish or maintain an applicant screening process which amounts to a blanket ban against renting to any person with a criminal record and cannot consider any prior arrests which did not lead to a conviction.  Criminal history is broadly defined under the regulations as “any record that contains individually identifiable information and describes any aspect of an individual’s criminal history.”

Although landlords cannot use criminal history to discriminate against tenants, the landlord may be able to avail themselves to an exception if they can demonstrate, among other things, that they have not violated the regulations by demonstrating that the landlord has a legally sufficient justification for a practice of seeking or otherwise considering information which has a discriminatory effect.  Additionally, nothing in the Regulations prevents landlords from establishing a policy which permits individual assessments of the types of convictions.  However, by default, the law prohibits a person from seeking, considering, using, or taking an adverse action based on criminal history information. 

While the Fair Housing Regulations establish new laws relating to criminal history information, a person may also be subject to local laws and ordinances which provide additional limitations.  If landlords consider the criminal history information for purposes of denying tenants, they should seek counsel or carefully review their local ordinances to determine what restrictions apply to their properties.