A Fair Housing Toolkit for People with Criminal Records and Their Advocates
This toolkit is intended to help people with criminal records wield fair housing laws to dismantle some of the roadblocks that exist in the search for safe, stable housing.
Fair Housing is the right of all people to be free from discrimination based on membership in a protected class.
Nearly one third of adult Americans have a criminal history of some kind. A disproportionate number of those adults are racial and ethnic minorities. Statistics show African-Americans and Latinos are dramatically over represented in the prison population. 95% of people are eventually released from prison, yet upon release, many formerly-incarcerated people – disproportionately African-Americans and Latinos – struggle in their search to find a place to call home.
Protect Yourself Against Discrimination
Discrimination can come in many forms. Refusing to rent to a person, offering different terms and conditions to tenants, or segregating certain tenants in one area of a complex based on a protected class are all illegal. It is also against the law to make a discriminatory statement or publish an ad that demonstrates a preference or limitation based on a protected class. For people with disabilities, discrimination may include a refusal by a landlord to make necessary reasonable accommodations by changing policies or practices as needed to ensure that a disabled person can fully use and enjoy her home.
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Discrimination can be direct. Rules or actions that target people because of their protected class are considered direct discrimination.
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Discrimination can be indirect. Sometimes, a policy will not single out a particular group, but may nonetheless disproportionately negatively affect members of a protected class.
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There are exceptions. Some properties are outside the reach of federal fair housing law, such as owner-occupied buildings with four or fewer units. However, state law fills in most of those gaps. California’s Fair Housing and Employment Act covers all dwellings except shared living situations and owner-occupied homes where a single room is rented out.
Does this look familiar?
“It is important that our residents are not involved in illegal activities. If you have ever been arrested, cited, prosecuted, plead guilty to, or been convicted of any crime, you will not meet our rental criteria.”
What does fair housing mean for people with criminal records?
Many housing providers routinely use policies disqualifying applicants with a record of incarceration. Some landlords even refuse to rent to people with a record of arrest. These policies, though neutral on their face, may violate fair housing laws.
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Fair housing laws do not explicitly protect people with criminal records, and sometimes refusing to rent to a person because of his criminal record may be justifiable. However, a blanket policy of refusing to rent to people with criminal records is discriminatory.
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Discriminating against a person because of his or her membership in a protected class is illegal regardless of whether a person has a criminal record. If a landlord refuses to rent to a father with a criminal record because he has children, his rights have been violated regardless of his criminal record.
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A landlord may not apply a policy in a discriminatory manner. For example, a landlord cannot selectively apply a criminal records policy only to African-American applicants, or treat a white tenant with a criminal record better than a Latino tenant with the same record.
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Because African-Americans and Latinos are disproportionately arrested, convicted and incarcerated, blanket policies of refusing to rent to people with criminal records result in a disparate impact based on race and national origin. Criminal records are not a protected characteristic under the Fair Housing Act. However, rental restrictions based on criminal history can have a disproportionately negative impact based on race or national origin. Racial bias within the criminal justice system is not the fault of landlords, but if their rental policies replicate that bias, they may be violating fair housing law. Regardless of a housing provider’s intentions, a policy that disproportionately affects people in a particular protected class may violate the Fair Housing Act.
Regardless of a housing provider’s intentions, a criminal history policy that disproportionately affects people with a particular protected characteristic may violate the Fair Housing Act.
How can you determine whether a criminal records policy violates fair housing law?
To determine whether or not a housing provider's criminal records policy violates fair housing law, you must consider the following two questions:
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Is the policy necessary to achieve a substantial, legitimate non-discriminatory interest? If the policy has a disparate impact, that is, it disproportionately affects people in a particular protected class, a housing provider must prove the policy is necessary to achieve a substantial, legitimate and nondiscriminatory interest. A substantial, legitimate, nondiscriminatory interest might be limiting risk to the safety of residents, employees, or property. Landlords must identify the legitimate purpose the policy is designed to serve, and then show the policy in place actually serves that purpose.
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Is there a less discriminatory alternative? Narrowly-tailored policies based on legitimate business justifications may still violate fair housing law if a different policy would serve the same purpose with less discriminatory impact. For example, a less discriminatory alternative to a blanket ban on accepting applicants with criminal convictions would be a policy that requires undertaking an individual assessment of a person’s criminal record along with offering the applicant the opportunity to provide relevant mitigating information, such as:
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The facts and circumstances surrounding the crime;
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The person’s age at the time of the crime;
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Evidence the person maintained good tenant history before or after the crime; and
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Evidence of rehabilitation efforts.
Housing providers cannot justify policies that say “no criminal record” or “no felonies or misdemeanors.”
What about policies intended to safeguard people and property that refuse to rent to people based on...
Prior convictions? Convictions may be proof that a person committed a crime, but not all convictions are equal. A blanket ban on anyone with any conviction, at any time, is overbroad because it’s not tailored specifically to address the twin goals of safeguarding people and property. Policies that result in the denial of housing opportunities based on a record of a criminal conviction should be carefully crafted so as to take into consideration:
1. The nature of the conviction
2. The severity of the conviction
3. When the criminal activity took place
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Prior arrests? An arrest is not evidence of guilt. Rather, an arrest simply shows a person was suspected of a crime. Because an arrest itself does not prove anything, housing providers cannot claim someone with an arrest history is more dangerous than someone without. Policies excluding people with arrest records from housing opportunities are unlawful.​
A housing providers policy must be specific.
Housing providers cannot justify policies that say “no criminal record” or “no felonies or misdemeanors.” A policy must be more specific to survive scrutiny, like distinguishing between felonies that reasonably threaten the health or safety of others versus all felonies & misdemeanors, or capping the look back period to three years instead of disqualifying an applicant for a conviction that occurred at any time.
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Exceptions:
Some housing providers receive government funding that imposes eligibility restrictions based on conviction for the illegal manufacture or distribution of a controlled substance or registration as a sex offender.​
In some situations, subsidized housing providers have the discretion to deny admission based on criminal history. You have a right to ask for a copy of this policy at any time. Subsidized housing providers may deny admission if an applicant is currently engaging in, or has engaged in during a reasonable time before the admission decision, criminal activity that is drug-related, violent, or otherwise threatens the health or safety of others or peaceful enjoyment of the premises. However, if the way a landlord exercises that discretion results in a disparate impact based on race or national origin, the policy may still violate fair housing law.
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States and cities may also fund affordable housing developments. In some cases, these programs may either require criminal records checks or, conversely, limit their use. For example, San Francisco prohibits housing providers who receive city funds from asking about criminal records until after determining the applicant is eligible for the rental, and further limits the types of convictions that housing providers can rely on to reject an applicant.
Finding Housing
Before Applying
Many housing providers run criminal background checks as part of their tenant screening process. It’s important to know what’s in your background report so you are prepared to address any issues that may arise. It may turn out something you remember as a conviction is not actually on your record, or you incorrectly remember the exact conviction. Instead of guessing what is on your record, find out for sure.​
A landlord should let you know whether a background check is required. If it’s not clear, you can simply ask what criteria a landlord uses to evaluate applications. Under state and federal law, a private landlord must obtain your written permission prior to running a background check. You also have a right to request a copy of such reports within two years after the landlord (or anyone else) receives a copy.
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Most landlords use private companies to access your criminal background report. These reports are usually limited to information about arrests and convictions within the past seven years. However, a landlord may have access to information dating back more than seven years.
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There is no single official version of your criminal record. Because housing providers, and the companies that provide information to housing providers, get their information from different sources, you may also want to get information about your record from multiple sources. Most sources charge a fee for record, therefore, it’s important for you to have as much information from as many different sources as possible. ​
The Federal Bureau of Investigation (FBI) can provide a copy of your criminal record with information about arrests, charges, and convictions that occurred anywhere within the U.S. and its territories. You can request a copy of your record at: https://www.fbi.gov/services/cjis/identity-history-summary-checks
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State agencies, such as the California Department of Justice, can give you information about any arrests, charges, or convictions that happened in the state. Sometimes, the version of your record you receive might have more information than would be provided to a third party who requests it. Your state agency should be able to tell you if this is the case.
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County records of arrest and prosecution (RAP) sheets will have information about arrests, charges, and convictions that occurred within a specific county. You can get a copy of your RAP sheets from local agencies, like police departments, sheriff’s offices, courthouses, or the public defender’s office where you were a client.
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Private companies found online will run a criminal background report that pulls from various sources. Some landlords also use public information databases (like county jail and mugshot websites or internet searches) to gain information about your criminal history. Before applying for housing, you may want to search for your name in those databases as well.
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Consider different options for limiting the effect of an arrest or conviction on your search for housing, such as fixing errors, sealing your record, seeking an expungement, or exploring whether you’re eligible for a reduction of a felony conviction to a misdemeanor. Unfortunately, RAP sheets and other background checks often contain errors. Procedures for fixing errors vary depending on the type of record.
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​You can correct your FBI record by contacting the court or law enforcement agency that provided the information to the FBI, or by filing a challenge letter with the FBI itself. For private background checks, companies are required by law to investigate and correct any errors you report.
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“Sealing” a juvenile case means destroying all records (court, law enforcement, etc.) as if the case never occurred. You may ask the court to have your juvenile record sealed. There are specific eligibility requirements, and certain steps must be taken.
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“Sealing” an adult arrest record means removing all information related to an arrest from your RAP sheet. Once this process is completed, the arrest is considered to have never happened.
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Presidential pardons are available for all federal convictions, not just high-profile cases. In limited circumstances, the law allows for expungements and dismissals of federal or state convictions. In California, your record will change to reflect that the conviction was dismissed, but the offense will still be present. This will prevent information about the conviction from being included in some criminal background reports.​
Several California laws, like Proposition 47, Proposition 64, and Penal Code section 17(b), provide for the reclassification, resentencing, or reduction of certain felony convictions to misdemeanors or infractions. Reducing a felony to a misdemeanor allows you to say that you’ve never been convicted of a felony on certain housing applications.
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A Certificate of Rehabilitation is a court order that states a previously-convicted person is officially rehabilitated. It can be used as a mitigating factor when applying for housing. This certification also operates as an automatic application and recommendation for a Governor’s pardon.
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A Governor’s pardon officially forgives a conviction. While it will not erase the conviction from your record, it can be a mitigating factor used to show that you are rehabilitated. ​​​
While Applying for Housing
There is no reason to volunteer information about your criminal record unless you are explicitly asked about it during the application process. However, it is important not to lie if you are asked – a lie can be a legitimate basis for rejecting your application, regardless of the circumstances surrounding your criminal record. If you are not sure, do not guess at what is in your record; instead explain that you do not know. If you believe you are likely to be rejected based on your criminal record, you may want to consider providing mitigating information like evidence of rehabilitation in a packet along with your application. ​
What to do if you are denied housing?
In many situations, if you are denied for housing, the housing provider should give you a written letter with the reason for the denial. This is always the case for government-funded housing providers. Private housing providers must give written notice only if the denial is based on information in a consumer report, such as a background check.
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If you know or suspect the denial was based on your criminal record, you have several options, including: 1) provide mitigating evidence; 2) educate the housing provider on fair housing law; 3) request a reasonable accommodation if your criminal record was connected to a disability ; or 4) file a fair housing complaint if you feel you have been discriminated against.​
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Provide mitigating evidence: “Mitigating evidence” means additional information that lessens the gravity of a criminal offense. Mitigating evidence includes:
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The facts and circumstances surrounding the crime
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Your age at the time of the crime
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Evidence you have maintained a good tenant history
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Evidence of rehabilitation efforts
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Providing this information to a landlord and asking for reconsideration of the denial may improve your chances of getting into housing. You may want to gather this information before you even apply for housing so you are prepared to submit it quickly in case of a denial. You should make sure the information you provide presents you in the best light possible.
Educate the housing provider: Some landlords may simply be unaware of the law and the effects of criminal records policies on people in protected classes. You can provide the housing provider with a copy of the HUD guidance (included at the end of this toolkit), and you can also contact a local fair housing agency like Project Sentinel for assistance in educating the housing provider.
Make a reasonable housing accommodation request: Some courts have found landlords may be required to make an exception to their criminal record policies as an accommodation when an applicant’s crime was directly connected to a disability, and the applicant can show granting his accommodation would not result in the direct threat of harm to others or damage to property.
Fair housing law contains special protections for people with disabilities, including the right to reasonable accommodations.
A reasonable accommodation is a change in rules, policies, practices, or services that may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.
How do you apply for reasonable accommodations?
A reasonable accommodation is a change in rules, policies, practices, or services that may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. To determine if you qualify for a reasonable accommodation, you must answer yes to the following questions:​​
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Do you have a disability? In California, a person is disabled if he has a mental or physical impairment that limits a major life activity, has a record of such impairment, or is perceived to have such impairment. Past addiction can be a disability, but current illegal drug use is not considered a disability.
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Is the accommodation necessary for you to have equal use and enjoyment of your home? You must determine whether the accommodation – here, making an exception to a criminal records policy – is necessary for you to have equal use and enjoyment of your home compared to someone who is not disabled. To establish necessity, you should be able to explain how your disability affected your criminal conviction. You may also want to explain how circumstances have changed now, and what makes you confident that the criminal activity in question won’t happen again.
Verification from a Third Party
If your disability is not apparent or the connection between your request and your disability is murky, the housing provider can request verification from a qualified third party. It is a good idea to make sure verification from a knowledgeable third party includes the following elements:​​
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Is on formal letterhead;
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Explains how the author knows you – for example, a doctor who has been treating you for two years;
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Confirms you have a disability as defined by fair housing laws and explains how your impairment limits a major life activity; and
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Explains your disability-related need for an exception to the policy – for example, that your conviction for assault was the result of an untreated mental illness, for which you are now receiving effective treatment. ​​
How do you request reasonable accommodation?
You can request an accommodation in conversation or in writing. It is a good idea to put the request in writing so you have proof of what you requested and when you requested it. In your reasonable accommodation request letter, you should 1) state what you are requesting – for example, an exception to a ban on applicants convicted of any felony within the past four years, and 2) explain the connection between your disability and the request. You should also request a response within a reasonable period of time, like two weeks. After a reasonable period of time, a landlord’s failure to respond to the request might constitute a denial of the request. ​​
Can my landlord deny my request?
If you have a disability and a disability-related need for an accommodation, a landlord must grant your request unless it’s unreasonable, meaning that granting it would be unduly burdensome, require a fundamental alteration of the housing provider’s services, or pose a credible, verifiable, direct threat to the health, safety, or quiet enjoyment of others.
Wrongful denial of a reasonable accommodation request is a violation of fair housing law.
Case Example
More than a year ago, Ralph had a breakdown as the result of an undiagnosed mental illness and attacked a bus driver.
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He was convicted of assault and served five months in jail. He is now on probation, and receiving treatment and managing his mental illness successfully.
Ralph applies to rent from a landlord with a policy of refusing to rent to applicants who have committed violent crimes within the last 18 months. Ralph requests the landlord make an exception to the policy as a reasonable accommodation for his disability. He provides a letter from his psychiatrist verifying the reason for his conviction was his mental illness, and further explaining his disability-related behavior is under control. The landlord may be required to waive the policy as a reasonable accommodation.
What you can do if your housing rights are violated?
Get help from a fair housing agency.​ A local fair housing agency like Project Sentinel can counsel you on your rights, educate your housing provider, and assist you in enforcing your rights through an administrative complaint.
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File a complaint with HUD or a state/government agency. For violations of the federal Fair Housing Act including discrimination based on federal protected classes- race, color, religion, national origin, sex, familial status and disability- you can file a complaint with the U.S. Department of Housing and Urban Development (HUD) within one year of the last act of discrimination. You can file online at: https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint or by calling (800) 347-3739.
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In California, you can file a complaint with the Department of Civil Rights (CRD) at https://www.calcivilrights.ca.gov or call (800) 884-1684. CRD will investigate violations of state fair housing law, which includes the additional characteristics not covered under federal law- age, primary language, citizenship/immigration status, sexual orientation, gender identity/expression, marital status, source of income, or any other arbitrary characteristic that is unrelated to a person’s ability to be a good tenant. You must file a complaint within one year of the last act of discrimination.​
HUD and CRD will not investigate the same complaint, so you should only file with one agency or the other.
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File a lawsuit in court. This process can vary from court to court, and it can be a good idea to find an attorney. In most cases, you have two years from the date of the last act of discrimination to file a housing discrimination complaint in state or federal court.
Other Related Resources
Contact Project Sentinel for Assistance
​Project Sentinel is a nonprofit fair housing agency that provides education and counseling to community members, housing providers, and tenants about the fair housing laws. We also investigate complaints and advocate for those who have experienced housing discrimination.
Know Your Rights
Under federal and state Fair Housing laws, it is illegal for anyone involved
with the sale or rental of housing including owners, property managers and staff, real estate agents, HOAs, shelters, banks, and mobile home parks to:
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refuse to rent or sell a home
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charge higher rent or security deposit
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steer people to or from homes in certain neighborhoods or buildings
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evict a tenant
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apply different rules or criteria, or otherwise
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treat people differently
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harass or threaten a housing seeker, their friends, and family members
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...because of one of the following protected characteristics:
Federally Protected Classes:
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Race
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Color
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National origin
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Religion
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Sex
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Disability
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Familial status*
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California protects all the same federal classes but offers additional classes of protection.
California Protected Classes:
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Veteran or Military Status
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Ancestry
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Gender Identity & Expression
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Source of Income**
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Sexual Orientation
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Marital Status
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Immigration Status
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Primary Language
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Citizenship
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Arbitrary Characteristics​ (that have no relation to one's ability to be a good tenant.)
*Family with children under the age of 18
**Section 8/ Federal, State, or Local Public Assistance & Housing Subsidies