RENTING TO TENANTS WITH CRIMINAL CONVICTIONS
WITH JUANA WATKINS

Total Running Time: 6m 8sec
Transcribed

Juana Watkins directly addresses camera: Hello, I’m Juana Watkins, Vice President of Law and Policy and General Counsel for Florida Realtors. There are a large number of lawsuits being filed regarding policies against renting to tenants with criminal convictions. Florida Realtors wants you to know the law and what to consider when developing your in-house rental policy. (PAUSE)
     A single law firm in Orlando has filed 48 lawsuits this year ALONE against Florida property managers who allegedly refused to rent to applicants base on previous criminal convictions. Private law firms are essentially testing whether property management companies are adhering to the Fair Housing Act, and if in their opinion they are NOT, they’re filing a lawsuit
     The Fair Housing Act does not specifically deny a landlord the right to reject an applicant based on a prior conviction. However, the Department of Housing and Urban Development (HUD) issued a statement saying a BLANKET policy to deny felons can have an impact on minority populations under “disparate impact.” 
     So what is disparate impact? It’s an act of discrimination that may not harm a single INDIVIDUAL under the Fair Housing Act but is deemed harmful to a minority GROUP overall. 
According to HUD, some minority communities have a higher percentage of members convicted of a felony, and that makes blanket policies against ALL felons discriminatory under the Fair Housing Act.

     Unfortunately, it doesn’t matter if a rental policy PURPOSELY discriminates or not. With HUD’s recommendations in hand, a law firm can file a lawsuit. And even if a property management company has done nothing WRONG, it’s ALWAYS expensive for a brokerage to defend itself in court. (PAUSE)
Now that we’ve got you up to speed, here are some things to consider as you develop your in-house rental policy.
     Number 1. Does the policy have a disparate impact – an action that may not discriminate against a specific applicant, yet still impacts a GROUP protected under the Fair Housing Act? Is there a distinct impact on a group of people because of their race or national origin? For example, HUD points to Department of Justice statistics showing that blanket denials based on criminal history have a significant impact on African Americans and Hispanics.
     Number 2. A housing provider must show that its screening policy is JUSTIFIED, which HUD defines as “necessary to achieve a substantial, legitimate, nondiscriminatory interest.” The policy can’t be speculative or hypothetical, meaning evidence must exist that supports the screening policy. While protection of other residents’ safety and their property may be considered, the housing provider must prove, through “reliable evidence,” that the policy serves that purpose.
     And Number 3. Is a LESS discriminatory alternative available? Examples will depend on the details of the applicant’s background, however, HUD offered these examples. The length of time that’s passed since an applicant’s conviction . . . a good tenant rental history before or after the conviction . . . and the circumstances surrounding the criminal conduct.
     In closing, here are some landlord operating recommendations to avoid a lawsuit.
Create a WRITTEN POLICY with standards on how to evaluate ALL individuals and evaluate each individual on a case-by-case basis.
DOCUMENT research done and decisions made on individuals, and periodically review the information to ensure the policy is a) . . . being followed and b) . . . not having an unintended discriminatory effect.
Delay EVALUATING an individual’s criminal record until AFTER all financial and other qualifications have been met. This helps avoid any unintentional discriminatory effect and minimizes costs and efforts.
Do NOT make decisions on individuals based on prior arrests that did not result in a CONVICTION.
     REMOVE application questions that ask about arrests WITHOUT convictions. While a landlord may ASK about prior convictions, it should be clear that each applicant is evaluated on a case-by-case basis.
A BLANKET restriction against any particular conviction or all individuals with a criminal record will likely be viewed as having a discriminatory effect. Therefore, evaluate EACH individual applicant on a case-by-case basis. Take into account mitigating and surrounding factors.
     And finally, do NOT apply criminal record policies or practices in an INCONSISTENT manner. This may subject a housing provider to a claim of intentional discrimination.
     The National Association of Realtors offers additional screening information on its website. The article is entitled, “Dos and Don’ts of Screening Tenants Legally.” We encourage you to study it thoroughly.
     If you have questions, please contact the Florida Realtors Legal Hotline at 407.438.1409. The Legal Hotline is a free service included in your membership with Florida Realtors.