Oakland, California City Council last month passed an ordinance that prevents virtually all landlords there from researching a rental applicant’s criminal history.
The measure prohibits landlords from inquiring in any fashion about an applicant’s past criminal convictions. This prohibition includes obtaining any report from the California Department of Justice, the FBI, local law enforcement agencies, courts, or any tenant screening agency.
The measure is likely the most restrictive of its kind. While landlords are limited by the Fair Housing Act in how criminal history can be used in tenant screening, those rules allow landlords to consider the likelihood of recidivism before reaching a decision on a case-by-case basis.
With the Oakland ordinance, landlords are blind to the scope or severity of an individual’s past criminal behavior, and therefore unable to assess any potential risks.
The only exception in the Oakland ordinance is the ability to search a lifetime sex offender database, but only after the landlord has determined that the applicant is qualified for the rental, and a conditional offer is made.
Oakland landlords must modify rental applications to eliminate any questions regarding criminal history. That includes any prequalification checklists or questionnaires provided to applicants. Disclosures regarding tenants’ rights under this ordinance will need to be added to the rental application and posted on websites and in leasing offices.
Housing providers receiving government funding may be exempt from the requirement, to the extent that those grant programs require tenant screening to include criminal background. Those providers will be required to serve adverse action notices with city-mandated disclosures to applicants being rejected and provide time for the applicant to submit additional information prior to being rejected.
There are limited exceptions made for owner-occupied properties.
The penalty for failure to comply with the measure includes a fine of $1,000 per infraction. Applicants also have a right to sue landlords who violate the ordinance and collect either three times the amount of actual damages, including emotional distress, or one month’s rent plus attorney’s fees and costs. Ironically, landlords who violate the ordinance also can be charged with a crime.
This ordinance comes at a time when other cities are enforcing rental “nuisance” laws which require landlords to evict tenants implicated in crimes, sometimes without arrests or convictions. Those ordinances, too, carry costly administrative penalties for failure to comply.
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).
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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.