1. Criminal Record Bans in Private Housing

How can my criminal record affect my chances of getting private housing?

Most private landlords will run a background check on you, and have a broad discretion to deny you based on past criminal involvement. However, the landlord cannot have a blanket ban on ALL people with criminal records and must treat your criminal record the same as it treats other applicants’. Keep reading this section to learn what landlords can and can’t do when getting and considering your criminal history information.

Can a private landlord refuse to rent to me just because of my criminal record?

Most of the time, yes. Unfortunately, the law does not protect you from housing discrimination based on your criminal record alone. Although federal and state laws make it illegal for private landlords to discriminate against you because of your race, color, national origin, ancestry, sex, gender, gender identity, gender expression, sexual orientation, religion, disability, marital status, family status, genetic information, and source of income in California, they do not provide any specific or direct protection based on having a criminal record.[1212] Landlords have the power to choose their tenants, and judges often side with landlords who claim that banning people with criminal records is necessary to protect other residents and property.[1213]

However, there are some cases where you might be protected if a private landlord rejects you because of your criminal record.

    The Department of Housing and Urban Development (HUD)’s official stance is that landlords cannot refuse to rent to any person with criminal convictions on that basis alone. Read more about this type of discrimination (called a “blanket ban”) below.
    Additionally, if your CONVICTION is for substance/drug abuse, your past substance abuse is considered a disability under state and federal law. People with disabilities enjoy greater protection against discrimination (read more about asking for a reasonable accommodation for a disability in Appendix E, PG. 419).
    Finally, you are protected by state and federal law that limits what a private landlord can learn about you from a BACKGROUND CHECK (often called a “tenant report” when it’s for a landlord who is screening you for their housing). A landlord has to tell you about the background check, give you a chance to fix mistakes, and certain information isn’t legally supposed to come up in the background check (read more on PG. 377).
  1. 1212

    See Fair Housing Act, 42 U.S.C. § 3601 et seq.; Fair Employment & Housing Act, Cal. Gov’t Code § 12955 et seq.; Unruh Civil Rights Act, Cal. Civ. Code § 51. The Unruh Act is incorporated into FEHA for purposes of housing discrimination (Gov’t Code § 12955(d)), but it is best to bring separate claims under each law because the remedies are different.

  2. 1213

    42 U.S.C. § 3604(f)(9) (Fair Housing Act does not protect “individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others”); Evans v. UDR, Inc., 644 F. Supp. 2d 675 (E.D.N.C. 2009) (holding that the Fair Housing Act (FHA) does not prohibit landlords from denying a disabled tenant’s rental application based on her criminal record; relaxation of landlord's “no criminal history” policy was not required as a reasonable accommodation for mentally disabled tenant, even where tenant’s disability was an underlying cause of her conviction).

Can a private landlord refuse to rent to me because my criminal record would increase their homeowner’s insurance rates?

Maybe. Insurance companies, including those that protect homeowners, generally have broad discretion in setting their rates and premiums.[1214] At the same time, under the Federal Housing Act, homeowner’s insurance companies cannot price their policies in a way that discriminates on the basis of race, gender, or other protected characteristics (see list on PG. 357).[1215] Although having a criminal record is not specifically listed as one of these characteristics, one can make a credible argument that the same logic should apply.

Continue reading for more information.

  1. 1214

    Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 824.

  2. 1215

    Ojo v. Farmers Group, Inc. (2010) 600 F.3d 1205, 1208, holding that the FHA prohibits racial discrimination in both the denial and pricing of homeowner’s insurance; see also 24 C.F.R. § 100.70; 42 U.S.C. § 12201(c)(1), prohibiting an insurer from administering a plan or classifying risks in a manner that is inconsistent with State law.

When might I be legally protected from a private landlord discriminating against me due to my criminal record?

Below are some situations where you might be legally protected if a private landlord is discriminating on the basis of your criminal record:

1) Blanket Bans:

In 2016, the federal Department of Housing and Urban Development (HUD) issued guidelines on how housing discrimination laws apply to people with criminal records.[1216] In HUD’s view, it is a violation of federal law to refuse to rent or sell to any person with any criminal conviction on that basis.[1217] The specific arguments for why blanket bans violate the law are covered in #2-4 below.

If you think one of these arguments applies to your situation, it may be a good idea to consult an attorney.[1218] See the list of legal aid providers on PG. 1127 of this guide.

2) Arbitrary Discrimination:

According to HUD, more focused policies, such as bans on people with specific types of criminal convictions, may violate federal law if they don’t serve a legitimate purpose (or, in legal terms, “a substantial, legitimate, and nondiscriminatory interest”). Any policy that doesn’t take into consideration how much time has passed since the conviction(s), or the nature or seriousness of the crime, is unlikely to meet this standard. On the other hand, policies aimed at preventing harm to residents’ safety and/or property may be sufficient.[1219]

California state law also prohibits “arbitrary discrimination,” (meaning unreasonable discrimination), so if a landlord has a blanket ban against anyone with criminal records—without consideration of your individual situation and ability to be a good tenant—it may be considered unreasonable, arbitrary discrimination, which is illegal.[1220]

If you come across a blanket ban, or discrimination that seems completely arbitrary, you should contact a lawyer. See the list of legal aid providers on PG. 1127 of this guide.

3) Unfair Treatment (also called “discriminatory treatment”):

Even though a private landlord is legally allowed to consider your criminal record, the landlord must apply the same standards for screening applicants equally. For example, a landlord can’t reject an African-American applicant based on his/her criminal record, but then accept a white applicant with a similar criminal record.

Another example is that if a private landlord conducts a background check on you, the landlord must also conduct the same background check on all other applicants.

If you come across a private landlord who you believe is treating your criminal record differently from other similar applicants, this may violate your right to equal treatment under federal and state law. You should contact a lawyer. See the list of legal aid providers on PG. 1127 of this guide.

4) Unfair Impact (also called “disparate impact” or “discriminatory effect”) & Blanket Bans:

As a group, people with criminal convictions are not directly protected by the Fair Housing Act – the federal law prohibiting housing discrimination based on things like race, gender, and sexual orientation. However, in 2015, the United States Supreme Court held that a housing policy that affects people of color more than others may violate the Fair Housing Act if it isn’t supported by a legally sufficient justification.[1221] Thus, because African-Americans, Latinos, and other people of color are overrepresented in our criminal justice system, there is a strong argument that banning tenants with criminal records from private housing violates the law as well.

In addition, California’s fair housing laws may give you slightly stronger protection in this situation, because a blanket ban against all tenants with any criminal records—regardless of the type of conviction, when it occurred, whether it affects your ability to be a good tenant (like pay rent; respect your neighbors and property; etc.), and evidence of your rehabilitation & mitigating circumstances (see PG. 371 for details on evidence of rehabilitation and mitigating circumstances)—has a discriminatory effect and may not be “necessary” to protect other tenants and property.[1222]

5) Past Drug or Alcohol Addiction (A Protected Disability)

It is illegal for a landlord to deny you housing based on a past drug or alcohol addiction, as this is a protected disability status. Past addiction, as well as current alcoholism,[1223] are considered disabilities under both federal and state law, so landlords cannot deny you housing for this reason or even ask about past drug or alcohol abuse. Landlords must also provide you with reasonable accommodations if necessary.[1224]

However, a landlord may deny you housing if you are currently using or selling illegal drugs (this is the same rule that applies to current drug use in government-assisted housing properties.

If a landlord denies you housing due to past drug or alcohol abuse, you should request reasonable accommodations and/or challenge the denial. It is suggested that you try and contact an attorney to help, since every individual’s circumstances and case are different. See the list of legal aid providers on PG. 1127 of this guide for places that may be able to assist you.

  1. 1216

    U.S. Dept. of Housing and Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016), https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf

  2. 1217

    Id. at p. 6.

  3. 1218

    See Fair Housing Act, 42 U.S.C. § 3601 et seq.; Fair Employment & Housing Act, Cal. Gov’t Code § 12955 et seq.; Unruh Civil Rights Act, Cal. Civ. Code § 51; Fortune Soc’y, Inc. v. Sandcastle Towers Housing Devel. Fund Corp., No. 1:14-cv-6410 (filed Oct. 30, 2014, E.D.N.Y.). The Unruh Act is incorporated into FEHA for purposes of housing discrimination. Cal. Gov’t Code § 12955(d), but it is best to bring separate claims under each law because the remedies are different.

  4. 1219

    Ibid.

  5. 1220

    Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721 (1982) (holding that Unruh Civil Rights Act prohibits all “arbitrary” discrimination, regardless of protected class status; landlord’s blanket exclusion of an entire class of people (children) based on a generalized prediction that the class, “as a whole,” is more likely to commit misconduct than some other classes of public” violates the Act.); see also Regional Human Rights/Fair Housing Commission, Fair Housing Handbook, 18 (11th ed., 2012).

  6. 1221

    See Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. (2015) 135 S. Ct. 2507.

  7. 1222

    Cal. Gov’t Code § 12955.8(b) (violation of FEHA for practices having discriminatory effect; business necessity as defense); see also Cal. Apt. Assoc., Question & Answer Sheet: Criminal Background Checks at 3 (Jan. 2005), http://www.hiresafe.com/CA_TENNANT_background_screening_law.pdf; Jayne Thompson, Can You Deny a Tenant for a Criminal Record in California?, SFGate.com, http://homeguides.sfgate.com/can-deny-tenant-criminal-record-california-93578.html; cf. Regional Human Rights/Fair Housing Commission, Fair Housing Handbook at 18 (11th ed., 2012).

  8. 1223

    Americans with Disabiltities Act, Questions and Answers, U.S. Dep’t of Justice, http://www.ada.gov/employmt.htm.

  9. 1224

    Fair Housing Act, 42 U.S.C. 3604; see also Mental Health Advocacy Svcs., Inc., Fair Housing for People with Disabilities at 18-20 (Feb. 2007).