HUD’s new guidance on Criminal Background checks places Housing Providers and Municipalities in conflict over the recognition of Arrests!
For the ten page HUD Guide – https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf
HUD’s guidance includes the banning of arrests from consideration for housing. While this may seem legitimate, it places housing providers in a very awkward position, as many municipalities have laws and regulations on the books regarding drug users, and justify eviction for drug-related arrests. HUD states, “As the Supreme Court has recognized, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.” While this harkens back to a better understanding of “innocent until proven guilty,” until the municipal nuisance conflict is resolved, housing providers will face aggressive city enforcement on one side, and assertive housing advocates on the other. National REIA suggests working with your local housing advocates to address this concerns with municipalities.
(Cincinnati, OH) The National Real Estate Investors Association (NREIA) said today that new guidelines issued Monday by the U.S. Department of Housing and Urban Development go too far and will have a chilling effect on criminal background checks used to screen potential tenants. According to HUD, because a disproportionate number of African Americans & Hispanics have criminal records, they face potential discrimination in housing options based on race, in violation of the Fair Housing Act. National REIA believes this would severely restrict a landlord’s ability to protect residents from predictable harm & violence.
From every Congressman who rents an apartment in DC, to the poorest of their constituents in every district, has just been made less safe with HUD’s pronouncement that makes criminal background checks tantamount to discrimination.
Fair Housing Discrimination is a serious issue. No person should be discriminated based upon race, color, religion, national origin, sex, disability, or familial status. For HUD to claim that an individual’s criminal behavior should somehow be protected is a gross violation of the Fair Housing Act, and undermines the First Amendment protection of Free Association.
HUD’s flawed argument on “Discriminatory Effects Liability” makes the case that Safety, is neither a substantial nor a legitimate concern. In fact, according to HUD’s theory, until a property has residents raped, rapist shouldn’t be banned. Similarly, unless there have been murders at the property or community, murderers shouldn’t be banned. Ironically, HUD recognizes that convicted drug manufacturers and distributors can be banned, because of specific federal language, only to make exceptions for those who use drugs, or are convicted of any other criminal act!
The approach recommended by HUD, to individually consider each applicant flies directly in the face of HUD’s stated policy and directive from Congress, to treat each person equally. Today’s guidance does little more than try to make the criminal class a protected class – beyond the scope of congressional authority granted by the Fair Housing Act.
Charles Tassell, Chief Operating Officer of NREIA said “While we agree that an arrest is not a justifiable reason to deny housing, after all a person is innocent until proven guilty, the banning of convicted criminals is an entirely separate issue.”
Tassell further stated that “the safety of the renting public should not be sacrificed.”
Mike Hurney is the Founder and Director of MassRealEstate.net, an Association of Contractors, Investors and Landlords. He is the Author and Coach of the popular Course "How to Become a Real Estate Investor in 12 Easy Lessons" which Trains and Guides Beginners or Sharpens and Challenges the Skill of Advanced Investors. Mike is a Successful Real Estate Investor, Rehabber and Landlord. He's also a Licensed Mortgage Broker and Construction Supervisor.