New HUD Guidelines Prevent Landlords from Denying Tenants with Criminal Background History

Last month, President Obama’s Department of Housing and Urban Development (HUD) reinterpreted the Fair Housing Act of 1968 to prevent landlords from using criminal history to deny a tenant’s application to lease an apartment or home.

The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin. But because minorities are incarcerated at higher rates than whites, HUD determined that landlords using criminal background checks to deny tenant’s applications has a disparate impact on minorities and is therefore discriminatory. Not intentionally discriminatory, but discriminatory in its application. At least that is the argument made by the administration.

So while the protection of private property and residential safety used to be enough justification to deny a tenant application, this is no longer the case. HUD’s new guidelines shift the burden of proof on the landlord: “A housing provider must, however, be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property. Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden.”

Property owners should have the freedom to rent to whomever they wish, barring outright discrimination based on the reasons explicit in the Fair Housing Act. Reinterpreting this act to include protections for individuals with criminal backgrounds, on the sole basis that some minority groups are more likely to have a criminal record, is a gross misinterpretation of the law and undermines the rights of property owners.

HUD should focus its efforts on serving the American people, not undermining property owners who have a legitimate interest in protecting their property and their residents.

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