Should a Landlord run a Criminal History on a potential Tenant?
Criminal History Records Search
A landlord has a general duty to exercise reasonable care to protect the safety and welfare of his tenants from foreseeable harm. Due care must be exercised in the use, maintenance, and management of rental premises. While a landlord may not be able to eliminate all risk from his business, he can certainly take measures to reduce his exposure to unnecessary risk.
A landlord does not want a tenant using the rental unit as a base for criminal activity, posing a direct threat to the safety of others, and willfully damaging rental property or the property of others. Screening rental applicants for history of criminal conduct and rejecting those applicants with a history of violent crime or property damage may help protect persons and property against possible harm. There may even be an implied duty of care to ensure that tenants and property are protected from foreseeable harm. Landlords of multi-family housing units have a legal duty to warn and protect tenants about known dangers that would pose a current, direct threat to safety.
Many landlords consider their application process including the application form itself, the applicant interview, and strong rental policies that are consistently enforced will be sufficient to help identify high risk individuals whose behaviors would pose a potential threat to persons and property. Interviewing previous landlords and personal references; searching public records for court ordered evictions, bankruptcy, liens, and judgments; and contacting current employers may also provide clues to potential risks. A credit report, while containing a wealth of personal and financial information, does not provide information on criminal records. If the landlord feels the need for additional screening, he may consider a criminal history search as part of his due diligence. Whether the landlord can legally do so has undergone significant changes in many states and municipalities. Societal concerns and expansion of protections from discrimination have begun
to shape rental policies regarding acceptance or rejection of applicants with criminal records.
As background, a criminal history records search conducted by a third party vendor is considered an investigative consumer report under the Fair Credit Reporting Act (FCRA). The FCRA sets out specific rights and responsibilities regarding consumer notification, privacy, and accuracy of information requirements. In addition, states and local municipalities may have specific consumer protection requirements as well. Landlords have always understood that they have a legal
obligation to comply with all applicable requirements.
Landlords have the ability to set their own rental policies and practices as long as those policies and practices are legal and non-discriminatory. Federal fair housing laws prohibit discrimination in rental housing against members of a protected
class. As of this writing, federal law does not give protected status to persons with criminal convictions, with one important exception. Landlords can deny housing to applicants with criminal records as part of their stated rental policies unless the conviction was for drug use. Under federal fair housing law, past drug use is considered a disability. Persons with disabilities are members of a protected class. This protection does not apply to those persons currently using drugs or those who have been convicted of drug manufacturing or dealing.
In addition, state and local fair housing laws may be more restrictive than federal fair housing law and take precedence over federal law. Landlords should be aware that state or local fair housing laws may prohibit arbitrary discrimination on the basis of personal characteristics. It may be up to the court to rule whether a criminal record is a personal characteristic if an applicant files a discrimination complaint for denial of housing.
However there are a growing number of municipalities and states seeking to extend fair housing and employment protection to persons convicted of crimes. Legislation in some states limits the ability of employers to determine whether job applicants have criminal records. Specifically government and private sector employers are prohibited from asking applicants whether they have been convicted of a crime until an initial assessment of the applicant’s qualification has been
conducted. Some legislation extends the protection by requiring the employer to establish a direct relationship between the conviction and the potential job as just cause for the rejection of the applicant.
Now landlords may be facing similar challenges to screening applicants for criminal history. Some municipalities and states already have taken the position that denying housing to persons with criminal records is discriminatory and creates an unfair burden on those individuals. These states and municipalities specifically forbid landlords from checking criminal records of applicants or place requirements on the landlords that background searches may not be conducted until after determining the applicant’s suitability for housing. Even then, landlords will be required to determine whether any reported prior criminal conviction is substantially related to the housing in question before making a final determination.
Adding to the complexity is that some other states and municipalities require landlords to run a criminal background check on all prospective tenants before a rental dwelling unit may be occupied. Background checks are said to be required
in an effort to “lower crime and ensure landlords get quality tenants” or as to “reduce, control, and prevent criminal and nuisance activities.”
It may be such requirements are going too far in either direction. Landlords have always had to weigh possible advantages and disadvantages of screening applicants for criminal activity. By the nature of the records reporting process, there are some inherent areas of concern to keep in mind when using criminal history checks. A primary concern is the accuracy and completeness of criminal records information. As an example the state criminal depository receives data from participating jurisdictions compiled from information obtained from law enforcement arrest records, criminal court records, and state department of corrections files. If a jurisdiction does not report information or fails to report information in a timely manner, the state index will not be accurate. A related concern is the frequency of new information reporting. If the required frequency is yearly, there could be a long period of time in which a criminal record may escape discovery. The volume of records and numerous jurisdictions make up-to-the-minute screening almost impossible.
There are also a number of issues in the screening process related to privacy, accuracy, and consumer rights that must be considered when including criminal history records searches in the evaluation of applicants.
First, a landlord must be sure that the applicant is really the person in the criminal record report. Adequate identity verification must have been conducted upfront in the applicant interview and acceptance of the rental application. The personal identity information as verified will be used to order criminal history searches. Common surnames or aliases may cause confusion or doubt and will require additional research to ensure the proper party is identified.
Second, the rental qualifying criteria related to criminal records must be reasonable and related to the safety of others. Generally this is understood to mean that the applicant represents a current, direct threat to the safety and welfare of others or has a demonstrated history of property damage. Consideration should also be given to factors such as the type of crime, how long ago the crime occurred, and the person’s behaviors since that event.
Third, rental criteria must be applied fairly, equally, in a non-discriminatory manner to all applicants. Landlords cannot do criminal checks on some applicants and not on others. There cannot be different criteria because of the applicant’s appearance or other characteristic.
Fourth – and most importantly – a landlord must understand that the criminal record check does not guarantee an applicant is or is not a criminal, as there are numerous reasons why the report could be erroneous, such as a false
positive or an absence of record.
There are many measures a landlord can take to help protect his business. The measures that a landlord should take will be modeled on legal requirements and sound business practices. The above issues point out the need to stay current with landlord-tenant statues at any level of government. Business conditions may also necessitate modifications in policies and practices. The question of whether a landlord can conduct criminal history searches is based on legal requirements. The question of whether a landlord should conduct criminal history searches is based upon business requirements.