Reevaluating Rental Policies for Tenants with Criminal Histories

April 8, 2016 | by Michael Wilt

Categories: Fair Housing, Rental Housing

Stories this week by NPR and the Wall Street Journal highlight two individuals, including Benigno Herrera of Austin, who have struggled to find rental housing because of criminal convictions that occurred decades ago. According to the National Employment Law Project, approximately 65 million Americans have criminal records. Individuals with criminal records are not a protected class under the Fair Housing Act, meaning landlords may refuse to rent to someone because of their criminal past.

However, on April 4, 2016, HUD's Office of General Counsel issued guidance that outlines ways the denial of housing based on a criminal record could constitute discrimination and violate the Fair Housing Act.

New HUD Guidance on Criminal Records and Housing

The first potential fair housing violation occurs when a landlord refuses housing to all applicants with criminal records. According to HUD, this type of policy - while not discriminatory on its face – can have a discriminatory effect. That is because on a national level, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.

The second potential violation occurs when there is intentional discrimination. An example is when a landlord rents to a white applicant with a criminal record for a certain type of conviction but refuses to rent to a minority applicant with a similar conviction.

In its guidance, HUD encourages landlords to avoid these potential violations by ensuring their criminal history policies reflect evaluating applicants on a nondiscriminatory case-by-case basis, taking into account the nature and severity of the criminal activity and the length of time that has passed since the conviction occurred.

April is Fair Housing Month

Looking at barriers to housing - including criminal conviction - is a timely topic, since April is Fair Housing Month, commemorating the passage of the Fair Housing Act on April 11, 1968. To learn more about the Fair Housing Act and the history of fair housing in America click here.

Additional Information

To learn more about Fair Housing and what to do if you think your rights have been violated, check out the following resources:

U.S. Department of Housing and Urban Development- Fair Housing and Equal Opportunity

Texas Workforce Commission- Civil Rights Division

On the House blog posts are meant to provide general information on various housing-related issues, research and programs. We are not liable for any errors or inaccuracies in the information provided by blog sources. Furthermore, this blog is not legal advice and should not be used as a substitute for legal advice from a licensed professional attorney.


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Hi Jeff, we’d recommend reaching out to a trusted source of legal aid in order to answer your law-related question. Your closest tenants rights council may be able to provide some insight as well.


I have been charged for a class A family violence misdemeanor in Travis County, Texas but I have not been tried or convicted for it. It has been pending for almost 3 years. The rental criteria specified convictions only. I have no criminal record. Is this legal?


Landlords have a primary obligation to protect and ensure the tranquility and safety of current, non-criminal tenants. 
While some potential renters with criminal histories may otherwise be ideal tenants, those with violent criminal histories are not automatically in that category.
Like much of contemporary, half-baked administrative law, a broad-brush approach is sophomoric and dangerous. These cases must be evaluated on a case-by-case basis with the safety and welfare interests of the general tenant community held paramount in the decision process.

A criminal history is rarely the result of a single, isolated departure from good citizenship. Predominantly, one acquires a criminal history by being reared in a setting with an inherent disregard of the minimum rules of social behavior. That history arises from an environment that abhors the basic cultural values required for a decent, safe society, favoring anarchy over law.

One with a criminal history has earned that title by being arrested, charged, prosecuted, convicted, and penalized for at least one misdeed. Society must be allowed to discriminate between desired behavior and destructive behavior. And, it would be naive (if not criminally liable) to assume that the convicted criminal has committed only one offense. 

As mentioned above, the only equitable entry into the tenant pool for one with a criminal history is on a case-by-case basis.  Those without a violent background who have demonstrated a verifiable history of following the rules of decent society may be considered eligible. Failing that test, they have chosen their path and should not be allowed among law-abiding tenants.


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