So, you think you understand how to screen applicants’ criminal history? Well, HUD’s recent announcement may have just said, “Not so fast, my friend!”
What Happened:
The U.S. Department of Housing and Urban Development (HUD) recently announced that the Secretary has published a letter regarding the responsibilities of Public Housing Agencies (PHAs) and owners when screening applicants for criminal history. In this action, HUD has rescinded prior guidance on using criminal records in housing decisions, including:
- Notice 2015-19: Guidance on excluding arrest records in housing decisions
- 2016 Office of General Counsel memo on criminal record use and the Fair Housing Act
- 2022 Office of Fair Housing and Equal Opportunity memo implementing prior guidance
This means HUD no longer provides these documents as “safe-harbor” guidance for screening applicants.
What This Means for Property Managers
- Arrest Records: HUD’s prior guidance discouraged using arrests (without convictions) to deny housing. With the rescission, there is less clarity federally, though using arrests alone could still raise fair-housing concerns.
- Conviction Records: Screening based on convictions remains permissible, but policies must be narrowly tailored, based on the nature of the offense, and include individualized assessment. Blanket bans could expose you to disparate-impact claims under the Fair Housing Act.
- State and Local Laws: The rescission does not supersede state or local fair housing requirements. Always check local rules before updating policies.
- On-site Manager Implications:
- Be prepared to answer applicant questions regarding criminal history policies.
- Apply consistent, documented standards for evaluating criminal records.
- Maintain transparency and ensure that policies are defensible in the event of challenge.
- Be prepared to answer applicant questions regarding criminal history policies.
Examples of Responsible Screening Practices
| Applicant Record | Recommended Approach | Notes |
| Arrest with no conviction | Do not deny housing solely based on an arrest | Consider the context and whether charges were dropped or dismissed |
| Conviction older than 7 years (non-violent) | Consider case-by-case review | Use individualized assessment, not automatic denial |
| Recent violent felony | Screening allowed | Document rationale and apply consistently |
Next Steps for Your Team
- Review your current screening policies to ensure they are compliant and fair.
- Train staff on the importance of consistent application and individualized assessment.
- Monitor for updates from HUD or state authorities for additional guidance.
Resources
Bottom Line:
HUD’s guidance rescission does not change the law, but it does remove previous federal recommendations. Property managers should continue to use fair, consistent, and well-documented screening policies to protect both applicants and your communities.
