Important Considerations for Using Criminal Records in Tenant Screening

Using criminal records to screen tenants is a complex and evolving issue that has significant implications for both landlords and potential tenants. On one hand, landlords have a legitimate interest in protecting their properties and ensuring the safety of their tenants, while on the other, individuals with criminal records often face barriers to finding housing and reintegration into society. 

In this blog post, we’ll explore the legal rights of landlords to use criminal records in tenant screening and discuss the evolving landscape of “Ban the Box” laws that aim to strike a balance between these rights and the rights of prospective tenants.

Please note that this is for informational purposes only and is not intended as legal or financial advice. Laws may vary depending on your location. 

Preventing Discrimination with Ban the Box Laws

Nearly one in three adults in the United States has a criminal arrest record, which often creates a barrier to housing, employment, and various social services. Some people with criminal records find themselves facing discrimination from landlords, employers, and service providers, even when they possess the necessary qualifications or financial stability. 

To combat discrimination, some states and localities have introduced “Ban the Box” laws that regulate the use of criminal records by rental housing providers. These laws either prohibit questions about criminal history on rental applications or permit the use of such information later in the application process on an individualized basis.

The purpose of these laws is to strike a balance between landlords’ rights to protect their properties and the rights of individuals with criminal records seeking housing opportunities. They encourage a more individualized approach to tenant screening so applicants have a fair chance to explain their circumstances and demonstrate their suitability as tenants. 

The Rights and Legal Responsibilities of Landlords

When it comes to tenant screening, however, landlords have a legitimate interest in protecting their property—as well as a legal responsibility to ensure the safety of their tenants. 

To justify denying a rental opportunity based on an applicant’s criminal record, they must be able to establish a valid reason why the applicant wouldn’t be a good fit for the property, such as the inability to consistently make rent payments on time or a reasonable connection between the nature of the criminal record and potential threats to the property or other tenants. This determination should be made on a case-by-case basis, taking into account factors like:

  • The type of crime that occurred 
  • The amount of time that has passed since the conviction
  • Evidence of rehabilitation

Blanket policies that automatically exclude individuals with any criminal history should be avoided. All screening policies should be clearly laid out in writing and applied to all applicants equally to avoid any potential claims of discrimination. 

It’s also essential to adhere to local and state laws and regulations pertaining to tenant screening and criminal records. Landlords should maintain thorough documentation of their decision-making process to defend their choices if questions or disputes arise. This approach ensures that individuals with criminal records are not unfairly denied rental opportunities, while also safeguarding the landlord’s interests and overall property safety.

While criminal background checks can provide valuable insights, they offer only a partial view of an applicant’s history. For example, they may include arrests without convictions and other factors that aren’t necessarily relevant to how a person may be as a tenant. For this reason, it’s vital for landlords to conduct thorough screenings that include additional information, such as credit checks, tenant verification, background checks, and eviction history when making rental decisions.

The use of criminal records in tenant screening is a multifaceted issue that requires careful consideration of the rights and responsibilities of both landlords and tenants. While landlords have a legal right to use criminal records as part of their screening process, they must do so in a manner that is fair, non-discriminatory, and justifiable. It’s also very important to stay updated on any changes to state or local laws that could affect your tenant screening process. 

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