Suppose you manage a property and receive an application from a prospective tenant who, upon doing your due diligence, you learn is a tier 3 sex offender with multiple convictions and he is currently on probation. Adding to your concern, several of the neighboring properties are being rented to families with children. The prospective tenant otherwise meets all the necessary criteria (i.e., income, credit score, rental history). Can you decline the prospective tenant’s application without violating Fair Housing Law? 

Declining to rent to any prospective tenants with a criminal background is considered a violation of fair housing law under the disparate impact doctrine. The disparate impact doctrine states that a neutral, non-discriminatory policy can nevertheless be a violation of Fair Housing Law if it impacts people in a protected class more than those who are not in a protected class. It is therefore important to assess the facts of each unique situation. Narrowly tailor any policies you have to align with the goal(s) you are seeking to achieve (i.e., the safety of other tenants, neighbors). Whatever policies you choose to implement with respect to criminal backgrounds must be applied equally to all applicants. 

Narrowly tailoring a policy regarding criminal background will require taking into account factors such as the nature of the crime, whether the person is a repeat offender, how long ago the offense(s) occurred, etc. As such, it is important to remember that a prospective tenant must be allowed to mitigate the findings of their criminal background with additional explanatory information. 

In the situation stated above, the prospective tenant has been convicted of the most severe tier of criminal sexual activity. The prospective tenant also has multiple convictions. Finally, the prospective tenant is currently on probation, suggesting the conviction occurred relatively recently. In this case, upon taking all these factors into consideration, the prospective tenant’s application could likely be declined without violating Fair Housing Law.