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Several States Bar Landlords from Automatically Denying Housing to Felons

by Lonnie Burton

At least three states and the federal government are putting landlords on notice: You may not automatically deny housing to someone simply because he or she has a felony record. These rules and guidelines take different forms, ranging from state attorney general directives to lawsuits and court decisions, legislation, and in the case of the federal government, rules issued by the Obama Administration’s Housing and Urban Development (“HUD”) Secretary Julian Castro.

Washington State Attorney General Bob Ferguson filed a string of cases in state courts charging five property management companies with violating the Washington Consumer Protection Act by including the restriction “no felons allowed” in apartment advertisements. According to Ferguson, because African-Americans are disproportionately represented in the criminal justice system, the “no felons” restriction amounts to de facto discrimination against blacks.

“It doesn’t mean you have to rent to every felon [who] applies,” Ferguson said, “but you simply cannot have the blanket automatic denial. You have to inquire to find out the nature of that felony.” To avoid a charge of discrimination, Ferguson said a landlord must also find out the age of the conviction and what the applicant has done since the crime before rejecting him or her.

In June of 2016, a Pennsylvania court struck down a borough’s prohibition on renting houses to drug felons. The court said that policy conflicted with state parole and leasing laws. The ruling affects at least three communities in Pennsylvania where landlords were prohibited from leasing or renting to anyone convicted of a drug crime in the previous seven years.

In Texas, the state legislature changed the law in 2015 to make it easier for persons with certain arrests or convictions to find housing. The law now exempts landlords from liability for renting to a person with a nonviolent criminal conviction.

Meanwhile, HUD officials have filed several lawsuits in Texas charging landlords with unfair renting practices that discriminate against minorities by automatically denying housing to felons. Because of the disproportionate number of minorities in the criminal justice system, the HUD cases allege that “housing providers with blanket policies that reject ex-offenders might be unintentionally discriminating based on race.” Such a practice would be a violation of the federal Fair Housing Act, officials say.

HUD’s new guidelines for landlords rely on a theory called “disparate impact,” which holds that a housing policy may be illegal if, inadvertently or not, it disproportionately affects a specific group of individuals. The agency said that this is a sound policy based on a rule announced by the U.S. Supreme Court in deciding a Dallas housing case in 2015.

The U.S. Department of Justice, under President Obama, announced in late 2016 that it was getting involved in a New York case brought by an advocacy group that helps “formerly incarcerated individuals” find housing. According to the complaint, the group said that landlords at a 917-unit complex in Far Rockaway, Queens had a policy of refusing to rent to anyone with a previous felony or misdemeanor other than traffic offenses. The group alleged that this policy has an unjustified and unfair impact on black and Hispanic prospective tenants, in violation of the Fair Housing Act.

“This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Department of Justice’s Civil Rights Division.

“Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry into their communities,” Gupta said. She added, “While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do.”

According to fair housing advocate Fred Fuchs, housing stability is critical for released offenders to find jobs, place their children in school, and avoid recidivism. Those who cannot find a place to rent often end up living surreptitiously with family members, staying at shelters, sleeping in cars, or worse. Many give up on even trying to find housing once they learn they will be rejected because of their criminal record.

“It’s a huge problem,” Fuchs said. “Folks have to live somewhere.”  


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