People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle.
Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.
On June 18, New Jersey Gov. Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions.
During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances.
The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. State Sen. Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times.
“This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner,” he said.
Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness and hopelessness through social justice reform measures such as this one.”
With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda.
While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.
In the last five years, a policy movement has emerged in favor of “fair chance housing” policies, which regulate and limit the consideration of criminal records by housing providers. Toolkits have been published by the National Housing Law Project and Root & Rebound, and advocacy campaigns have been led by groups such as Just Cities, Fair Chance Housing Coalition, and many others.
In some cases, these policies broadly prohibit the use of criminal history, with limited exceptions for certain serious convictions or recent convictions or pending cases. In others, policies also delay criminal history checks until after a conditional lease is provided, importing the “ban-the-box” approach pioneered in connection with fair employment laws, often with standards for when a conditional lease may be withdrawn based on criminal history, and enforcement mechanisms.
Federal regulatory guidance issued in 2016 by the Department of Housing and Urban Development (HUD) has also played a part.
This article summarizes the new housing reforms at the local level, in D.C. and in three states, describes in detail the groundbreaking New Jersey legislation, and summarizes relevant federal law.
Since 2016, fair chance housing ordinances have been adopted in several major U.S. cities, with expansive provisions adopted in Oakland, Berkeley, Seattle and Portland, and more modest provisions in cities such as Richmond, Ca., Urbana, Il., Madison, Wi., San Francisco, and Newark, N.J., according to the Fair Chance Housing Coalition.
For example, Seattle prohibits requiring disclosure of, inquiring into, or taking adverse action based on the criminal history of a prospective tenant or occupant, except if needed to comply with federal or state law, and requires adverse action based on information from the adult sex offender registry have a “legitimate business reason”—with exceptions for certain types of dwellings.
Similarly, Oakland prohibits rental housing providers from inquiring about or taking adverse action based on criminal history, except to comply with federal or state law, or to review the lifetime registry to protect a person at risk, again with exceptions for certain types of dwellings.
In 2017, the District of Columbia enacted the Fair Criminal Record Screening for Housing Act, which requires housing providers reviewing tenant applications to make a conditional offer before making a criminal history inquiry.
Once inquiry is made, the law prohibits housing providers from considering arrests that did not result in conviction, or from considering convictions or pending accusations other than for 48 listed offenses.
Moreover, the conditional offer may be withdrawn only by providing specific reasons in writing for why doing so “achieves a substantial, legitimate, nondiscriminatory interest.” Other procedural protections apply, and violations may lead to fines via complaints to the Office of Human Rights (OHR). In turn, the OHR must report to the D.C. Council on an annual basis about complaints and investigations and must also provide a public education curriculum. Certain housing is excepted.
More details can be found on the website of the Collaborate Consequences Resource Center (CCRC), in the D.C. profile of the Restoration of Rights Project.
In 2019, three states joined the action, adopting laws limiting criminal history inquiries in connection with housing:
New Jersey’s Fair Chance in Housing Act is the most extensive state-level regulation of housing to date, applying to all rental housing providers except owner-occupied premises of four units or less.
The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer.
Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included.
The following paragraphs summarize the provisions of the bill.
Initial rental application: Under the bill, prior to accepting an application fee, a housing provider must disclose in writing whether they review and consider criminal history and state that an applicant may provide evidence demonstrating inaccuracies with the criminal record, evidence of rehabilitation, and other mitigating factors.
Housing providers may not inquire into or ask about a rental applicant’s criminal history prior to making a conditional offer, except they may consider whether an applicant has ever been convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement (both grounds for exclusion from public housing under federal law).
Records that may be considered: Even after making a conditional rental offer, housing providers may not consider arrests or charges that have not resulted in conviction, expunged convictions, convictions erased through executive pardon, convictions that have been vacated and otherwise legally nullified, juvenile adjudications, and sealed records.
Housing providers also may not require an applicant to submit to a drug or alcohol test, or request consent to obtain information from a drug treatment facility. After a conditional offer, the following records may be considered: convictions for certain listed violent and sex offenses; a pending indictable offense (felony); a conviction for a fourth-degree indictable offense if the prison sentence concluded within the previous year; a conviction for a second- or third-degree indictable offense if the prison sentence concluded within the previous four years; a conviction for a first-degree indictable offense if the prison sentence concluded within the previous six years.
Withdrawal of conditional offer: A housing provider may withdraw a conditional offer based on criminal history only if they determine “by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest.” The reasons must be provided “with specificity” in writing, with an opportunity to appeal by providing evidence of inaccuracies within the record, rehabilitation, or other mitigation. The housing provider must perform an individualized assessment in light of six factors relating to the offense, the applicant, and rental safety.
The applicant may request, within 30 days of notice of a withdrawal, a copy of all information relied upon in considering the applicant, which must be provided within 10 days of a request, free of charge. As previously noted, the applicant must be given an opportunity to present evidence of inaccuracies in the record relied upon, and of mitigating factors.
Model forms: The Division of Civil Rights is directed to prepare for housing providers model forms for initial disclosures and notice of withdrawal of a conditional offer, in English, Spanish, and any other language deemed appropriate.
Advertising: Housing providers may not publish an advertisement that it will not consider an applicant who has been arrested or convicted, except for an applicant convicted of manufacture or production of methamphetamine on the premises of federally assisted housing or is subject to a lifetime sex offender registration requirement.
Civil immunity: To encourage landlords to provide housing to formerly incarcerated individuals, landlords subject to the law are immune from civil liability arising for a decision to rent to individuals with a record, except for a person with convictions for specified violent and sex offenses.
Enforcement: An applicant or prospective applicant may file a complaint with the Division of Civil Rights of the Department of Law and Public Safety, which shall make an effort to notify the housing provider and provide 14 days to mediate and address the issue. The division itself may also file complaints, without the requirement of mediation, including for retaliations against a complainant.
After an investigation, if the complaint is substantiated, the division “shall” issue monetary penalties of $1,000 to $10,000, depending on whether there are previous violations (up to $1,000 may be assigned to the complainant), and the division may issue other non-monetary remedies, including in some circumstances requiring the provision of the rental unit to the complainant. Final decisions on an investigation may be appealed by the housing provider or complainant.
Reporting: The law also requires the Division of Civil Rights to collect data on complaints and investigations and to report annually on its website information about substantiated complaints that have resulted in monetary penalties.
In addition, federal regulatory guidance issued by the Department of Housing and Urban Development (HUD) in 2016 limits the use of criminal records by housing providers and realtors pursuant to the federal Fair Housing Act. The HUD guidance provides that:
where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider.
The guidance indicates that because “[n]ationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration,” use of criminal history is likely to trigger the “non-discriminatory interest” requirement.
The guidance further suggests that arrest records should not be used as a basis for exclusion, that the nature, severity, and recency of a conviction must be considered, and that “ensuring resident safety and protecting property” are the only interests that can justify criminal history exclusions.
Finally, federal law imposes mandatory and discretionary bars on residency in public and federally-assisted housing. Mandatory exclusions apply to people who are subject to a lifetime sex offender registration requirement or have been convicted of producing methamphetamine on the premises of federally-assisted housing.
A variety of discretionary grounds are provided for denial of public and federally-assisted housing based on criminal records or engagement in criminal activity, including for drug activity or activity that would adversely affect other tenants.
Such adverse actions may also result in eviction of other members of a person’s household. For more information on federal exclusions, see National Housing Law Project, An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals (2018).
(The introduction to this document is an instructive reminder of how HUD guidance has evolved where criminal records are concerned, from the focus on avoiding violent crimes in the 1970s, to the draconian “one strike and you’re out” rules applied in the 1990s, to today’s comparatively more nuanced policies.)
Note: With four states having enacted laws limiting consideration of criminal records in housing, the CCRC is expanding our 50-state Restoration of Rights Project to cover housing in addition to employment and licensing (along with restoration of civil rights and record relief).
David Schlussel is Deputy Director of the Collateral Consequences Resource Center (CCRC). A 2017 graduate of Berkeley Law, Schlussel served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California, and has represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. This essay originally was published by the CCRC and is reproduced with permission.
