(This is the third in a series of future Practice Tips on California’s Fair Housing Regulations.)
QUESTION: I understand that there have been some changes to the Fair Housing laws in California. When and under what circumstances can a Landlord use a Tenant applicant’s criminal history when deciding to accept or reject a Tenant? What should I tell my clients who want information about this issue?
Answer: This is a difficult question that requires a lengthy answer. This Practice Tip will focus on the new state-wide regulations but it is important to note that the state regulations do not preclude a local jurisdiction from imposing stricter requirements.
THE BASICS:
In January, 2020, the California Department of Fair Housing and Employment (“DFEH”) issued new regulations regarding use of criminal records by Landlords. Under those regulations, Landlords cannot have a blanket ban against renting to any person with a criminal record. For example, it is a violation of the law to never rent a property to anyone with a felony conviction, under any circumstances.
Also, there are some types of criminal history that Landlords can never use to make a decision about whether to rent to an applicant. For example, they can never consider a prior arrest that didn’t lead to a conviction, or convictions that have been sealed or expunged.
If a Landlord does have a screening process which includes reviewing criminal backgrounds, they can only deny housing if the applicant’s specific crime is a demonstrable risk to other residents or the property based on objective evidence.
LANDLORDS MUST CONSIDER THE APPLICANT’S PARTICULAR CIRCUMSTANCES:
In considering the criminal records of a Tenant applicant, Landlords must consider the applicant’s particular circumstances (i.e., “mitigating circumstances”). That could mean:
- Delaying a background check until after Landlord decides whether the applicant is otherwise qualified to rent the property.
- Letting the applicant know in writing that Landlord is concerned about a conviction and is giving the applicant a chance to explain why they would be a good Tenant.
- Giving the applicant a chance to show that the background report is wrong.
- Giving the applicant a chance to show the circumstances of the applicant’s crime, like how old they were at the time, and whether or not the crime was related to a disability or as a victim of domestic violence.
WHAT MITIGATING INFORMATION SHOULD BE CONSIDERED BY A LANDLORD WHEN CONSIDERING AN APPLICANT’S CRIMINAL RECORD INFORMATION?
Mitigating information means credible information about the applicant that suggests: (a) the applicant is not likely to pose a demonstrable risk to other residents or the property; and (b) what a reasonable person would believe is true based on the source and content of the information. Mitigating information includes:
- Whether the individual was a minor or young adult at the time of the conduct upon which the criminal conviction is based;
- The amount of time that has passed since the date of conviction;
- Evidence that the individual has maintained a good Tenant history before and/or after the conviction;
- Evidence of rehabilitation efforts, including a person’s satisfactory compliance with all terms and conditions of parole and/or probation; successful completion of parole, probation, mandatory supervision, or other conduct demonstrating rehabilitation, such as maintenance of steady employment;
- Whether the conduct arose from the individual’s status as a survivor of domestic violence, sexual assault, dating violence, stalking, or comparable offenses against the individual;
- Whether the conduct arose from the individual’s disability, or any risks related to such conduct, which could be sufficiently mitigated or eliminated by a reasonable accommodation; or
- Other relevant facts or circumstances regarding the criminal conduct or conduct after the conviction.
BEST PRACTICE TIPS:
- Local ordinances may have stricter rules and several cities are considering or have already enacted their own regulations regarding a Landlord’s use of criminal records. For example, the City of Oakland prohibits use of a criminal history AT ALL in a Landlord’s determination of selecting a Tenant application.
- Landlords should be advised to consult with their own qualified local Landlord-Tenant attorney if the Landlord intends to use a Tenant applicant’s criminal history in any aspect of the selection process.
- No real estate licensee should attempt to make a judgment as to whether a Tenant applicant should be accepted or denied on the basis of the applicant’s criminal history. The only exception would be Property Managers who make that determination as part of their obligations under a Property Management Agreement and then the Property Managers should only proceed based on advice of their own qualified local Landlord-Tenant attorney.
This Weekly Practice Tip is an attorney-client privileged document for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright 2020 Broker Risk Management 03/06/2020