Washington residential landlords may no longer enforce policies that ban all prospective tenants with criminal histories.
The Washington State Attorney General’s office has recently sanctioned five property management companies for enforcing blanket bans on applicants with criminal records. These are significant sanctions, too: fines of $5,000 or more, penalties and non-discrimination training.
The U.S. Department of Housing and Urban Development (HUD) published guidelines in 2016 stating that blanket bans on applicants with criminal histories were disproportionately affecting black and Hispanic applicants. The Washington State Attorney General’s actions against the five property management companies are based on these HUD guidelines, which require that a policy or practice of denying tenancy based on criminal history be “necessary to achieve a substantial, legitimate, nondiscriminatory interest.”
In order to be in compliance with the HUD guidelines, any policy regarding criminal history should take into account the specific circumstances of the applicant, including such things as: how long it has been since the conviction; the severity of the crime; how many convictions the applicant has; and, what kind of residency and work history the applicant has since the conviction. From the HUD guidelines: “Relevant individualized evidence might include: the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct; and evidence of rehabilitation efforts.” A mere history of arrests, without convictions, is explicitly called out in the HUD guidelines as being an insufficient basis for denial of tenancy.
It might be acceptable under the guidelines to deny tenancy to some who was just convicted last year, while it might not be acceptable to deny tenancy to the same person five years later if they have no further convictions and have stable work and residency history during the intervening years. The HUD guidelines cite a study indicating that after six or seven years without a reoffending, a person with a prior criminal history is approximately as likely to commit a new offense as someone with no criminal history. That cite should serve as a bright-line warning for residential landlords – if you are going to bar someone from a tenancy for a conviction that is more than six or seven years old, it must be a very severe crime and/or one for which the risk of reoffending is proven (and not just assumed) to be higher than average.
Certain Drug Offenses are Exempted
One type of crime specifically exempted from protection under the HUD guidelines is the manufacturing or distributing of controlled substances. Thus, it is acceptable to have a policy of refusing tenancy to people with convictions for manufacturing methamphetamine, or possession with intent to distribute cocaine. However, this exemption does not cover convictions for mere possession, or for arrests without conviction.
The takeaway is that a lot of Washington landlords and property managers are going to have to get more sophisticated in their analysis of criminal histories, giving applicants individualized consideration based on a set of criteria.
If you’ve read this far, I’ll reward you with two bonus points related to this topic: 1) since these enforcement actions by the Washington State Attorney General are based on federal policies, there is a reasonable chance of enforcement efforts in other states; and, 2) the reasoning underpinning the HUD guidelines upon which these enforcement actions are based is also likely to be applied to decisions by employers about job applicants.