The Role of Criminal Screening in Rental Housing Applications
By: Xavier Bromell – North Carolina Licensed Attorney with Brownlee Whitlow & Praet, PLLC
In the residential rental housing industry, where housing providers seek reliable residents who have demonstrated that they are less likely to damage property and are less likely to be a risk to other residents or staff’s safety, the application
process serves as an important “first stop” on the road to what many hope to be a harmonious relationship. Criminal
screening primarily serves to mitigate liability for housing providers, and above all, seeks to ensure the safety of the rental community and its residents. Among the numerous criteria evaluated in the rental housing application process criminal screening stands out as a crucial, and at times contentious, component. This blog provides a cursory overview of the layered landscape of criminal screening in rental housing applications, through examining its process, criticisms, legal considerations, and future challenges.
The criminal screening process typically involves conducting background checks to investigate whether there are any
prior convictions a prospective resident may have. There is no bright-line rule regarding what the criminal screening process must entail. Housing providers conduct screening by utilizing one of various methods, including searching public records,
hiring a third-party screening company, or relying on online databases. However, regardless of what method is employed,
it is essential for housing providers to ensure compliance with fair housing laws to prevent discrimination. The Fair Housing
Act prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, or familial status. While conducting a criminal background check is not discriminatory on its face, it is paramount for housing providers to
ensure that their screening processes comply with fair housing laws and do not result in disparate impact discrimination—
a situation that occurs when policies, practices, rules or other systems that appear to be neutral (non-discriminatory) create
a disproportionate (and thereby discriminatory) result on a protected group. The potential for disparate impact discrimination
is one of the major complaints related to the criminal screening process and its inclusion in the overall rental application process. In a previous blog post, Attorney Pat Finn provided an overview of Fair Housing complaints and what that process entails here.
The criminal screening process is not “one size fits all” proposition. The expectation from the United States Department
of Housing and Urban Development (commonly known as “HUD”), is that each application is reviewed on a case-by-case
basis. With this in mind, HUD offers guidance to housing providers to navigate the applicant screening process and creates guidelines for housing providers to follow to avoid claims of discrimination. HUD guidelines are more stringent for HUD-assisted and subsidized housing (generally because these properties receive funding from HUD). Private owners have more discretion in developing their own criminal screening processes as part of the application process. However, the objective of any screening is to review information relevant to an applicant’s ability to perform the obligations of the lease.
In its most recent guidance from April 2024 , HUD provides several considerations housing providers should keep
in mind when conducting criminal screenings for prospective residents including 1) ensuring the records used in the
screening process are accurate; 2) allowing prospective residents to challenge negative information obtained as a result of
the screening; and 3) encouraging transparency between the prospective resident and housing provider during the
application process among other things. HUD further elaborates on transparency within the screening process by advising
that adverse action letters should contain, “as much detail as possible as to all reasons for the denial, including the specific standard(s) that the applicant did not meet and how they fell short.” HUD goes on to advise that the records used in making the adverse determination should also be provided to the prospective resident as well as instructions on how to appeal an adverse action.
The takeaway from this new guidance, updated from 2022, is that housing providers should not utilize overly broad screening parameters in reviewing a prospective resident’s criminal history as they are, as noted above, likely to have a disparate impact on a potential resident. A housing provider’s criminal screening policy should be narrow enough to only include criminal screening information or criteria that is relevant to a prospective resident’s ability to perform their
obligations under the lease, but flexible enough to provide for exceptions to the same for mitigating circumstances or reasonable accommodations requests.
The landscape of criminal screening in rental housing applications is likely to evolve in response to technological advancements, policy reforms, and shifting societal norms. Emerging technologies such as artificial intelligence may offer
more sophisticated screening tools, while legislative changes may redefine the boundaries of permissible screening practices altogether. Addressing concerns related to data privacy and protection will also be a major consideration in shaping the
future of criminal screening in the rental application context.
Criminal screening plays a significant role in the rental housing application process, serving as a mechanism for safeguarding residents and properties, mitigating housing provider liability, and ensuring the safety of the rental community and its residents. By using principles of fairness, equity, and sometimes just plain common sense as a guide for its implementation, housing providers can avoid potential pitfalls associated with the criminal screening process. Striking a
balance between a potential resident’s rights and housing provider responsibilities is crucial in ensuring ethical and legal compliance while maintaining community safety. Critically examining the criminal screening process, legal
considerations, and future challenges of the same can assist all stakeholders in their efforts towards fostering an inclusive and secure living environment for all residents.
[1] Guidance on Application of the Fair Housing Act to the Screening of Applicants for Rental Housing. (2024). In
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.
https://www.hud.gov/sites/dfiles/FHEO/documents/FHEO_Guidance_on_Screening_of_Applicants_for_Rental_Housing.pdf
[2]Id. at 13.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.
