July 2020
MASSLANDLORDS NEWSLETTER
You cannot use arrest records to deny someone a rental, but convictions must also be handled carefully. License: Freepik free license
CAN I USE ARRESTS to Deny Rental Applicants? By Kimberly Rau, MassLandlords writer
Blanket bans on renting to people with a criminal history can be seen as discriminatory. Landlords may wonder whether renting an apartment to someone with a criminal history is a good idea, or on the other hand, whether it is legal to decline such an application. Is it legal to deny a rental to someone who has been arrested? What about if they have been incarcerated? Does it matter what type of crime they may have committed? In the United States, once someone completes a jail sentence, it is said they have paid their debt to society. In theory, this means that they should be able to live their life in
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the same manner as someone who has not been incarcerated. In reality, people convicted of a crime may have a harder time finding employment or shelter. Arrest records will appear more frequently now following the death of George Floyd, global demonstrations and the subsequent arrests of 11,000 individuals. There are practices that disproportionately affect people of color when compared to White individuals in similar situations. Arrests and incarcerations are two of them, and, by extension, renting practices that focus on an individual’s history with the law may disproportionately affect minorities. Because of this, doing so may open a landlord up to a discrimination lawsuit.
WHAT IS HUD? Before looking at whether landlords can or should use arrests and convictions when making decisions on who to rent to, it’s important to understand that those decisions are often not up to individual landlords. The Department of Housing and Urban Development (HUD) is tasked with issuing regulations to enforce the Fair Housing Act (FHA). This Act, as amended, gives HUD discrimination jurisdiction over every privately owned apartment in the country. It does not just oversee public housing or rental units where the tenant receives federal subsidies for rent. Therefore, any landlord may be held accountable for practices that the FHA finds discriminatory.
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