New Rules on Criminal Background Checks Run the Gamut

by Chris on March 9, 2020

New Bedford, Massachusetts lawmakers are mulling a “problem property” ordinance with an eye toward reducing local crime statistics. According to a news report, City Council is considering adding a provision requiring landlords to purchase — for $30 — a local criminal history report. Landlords are concerned.

That concern is in part because the federal Fair Housing Act does not allow landlords to adopt a blanket ban on criminal conduct. The criminal act must relate to housing concerns, and the decision must be based only on convictions, not arrests or contact with police.

Another problem is that eviction judges often don’t allow landlords to dump a tenant based on unproven allegations regarding crime. Even if landlords wanted to reject applicants or evict tenants based on criminal past, they can’t always do so.

If passed, the Bedford measure would be in stark contrast to a new rental regulation in Oakland, California that outlaws virtually all criminal background checks on rental applicants.

Somewhere in the middle is Cook County, Illinois, where a local ordinance just took effect which limits the information that landlords can use when screening tenants on criminal history. This rule provides that landlords cannot use information regarding criminal convictions that are more than three years old. That applies to any crime, including violent acts.

However, this Chicago-area ordinance does allow landlords to exercise some level of discretion. They can hold up an application due to relevant criminal history so long as the landlord writes up a report, shares that with the prospective tenant, and allows the applicant time to respond with additional information.

While there is an argument to be made that crime statistics weigh disproportionately against minority renters, who are in turn more likely to face housing discrimination as a result, landlords have a lot at stake when it comes to accepting tenants with a criminal past. If that results in higher crime at the property, for instance, it will lower the property value. That will have a significant impact when it comes time to sell or refinance.

Crime also drives away low-risk tenants who tend to value security over all other amenities. Judging from these comments, it appears those tenants have not been considered — or consulted — in the equation:

“My apartment was broken into. I found out that my upstairs neighbor has a burglary record. Just a week ago, my landlords rented to another felon with burglary charges. Is the landlord required to tell other tenants that there are felons living in the building? Can I break the lease early?”

“But how can we protect ourselves? Are their rights more important?”

“Find a landlord who doesn’t rent to felons.”

That last comment raises the issue of whether a landlord subject to criminal background check regulations would have the right to answer the question, “Are there felons living in the building?”

These new, one-size-fits-all regulations on criminal history run the gamut, but there is a commonality: they take away a landlord’s discretion to evaluate prospective tenants individually.

Nothing in these ordinances absolves landlords of the common-law duty to protect tenants and adjacent property owners from foreseeable risks. In some cases, that duty requires landlords to inform tenants of a specific threat. That will be difficult to do if the danger is a new tenant.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

Click Here to Receive Landlord Credit Reports.

Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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