Your Rights Against Illegal Denials from Government-Assisted Housing Because of Your Criminal Record

How does the law protect me from being denied government-assisted housing because of my criminal record?

The Public Housing Authority (PHA) or owner of government-assisted housing must follow certain laws and rules when considering your past convictions and criminal history information. They may only reject you for criminal activity that threatens the health, safety, or peace of other residents or staff AND the criminal activity must be “reasonably recent.”

    PHAs and owners of government-assisted housing may only reject you for certain kinds of criminal activity—not everything.

A PHA or owner may only reject you for criminal activity that is:[1248]

    Currently posing a threat to the health, safety or peace of other residents;
    Currently posing a threat to the health, safety or peace of the owner or local PHA staff or agents/contractors;
    Drug-related;[1249] OR
    Violent.[1250]
    PHAs and owners of government-assisted housing may only reject you for criminal activity that is reasonably recent.

A PHA or owner of federal government-assisted housing can only reject you due to criminal activity that is CURRENT or is “reasonably recent.”[1251] The length of any ban based on criminal records cannot be “unconscionable”—meaning unreasonable and excessive, drastic beyond what’s really needed, or extremely unfair.[1252]

What is considered a “reasonably recent period”?

The U.S. Department of Housing and Urban Development (HUD), which oversees most federally-funded housing programs (such as Public Housing, the “Section 8” Housing Choice Voucher program, and others), suggests that “5 years may be reasonable for serious offenses” (like making or dealing drugs)[1253] and suggests that PHAs and owners should set reasonable time periods for different types of criminal activity in their WRITTEN POLICIES.[1254] HUD has also suggested that a conviction for illegal drug use that happened 1 year ago could still be considered “recent.”[1255]

    If your criminal conviction was the result of a disability (like past substance abuse or mental illness), you can ask for an exception to the criminal record policy (called a “reasonable accommodation”).

If you can prove that your conviction was the result of a disability (which includes past drug addiction and mental illness), then you can ask the PHA or owner of government-assisted housing for an exception from their ban as a “reasonable accommodation” to accommodate your disability and give you equal opportunity to access the housing.[1256] Read more about how to do this in Appendix E, PG. 414.

  1. 1248

    42 U.S.C § 13661(c); 24 C.F.R. §§ 5.855(a), 882.518(b), 982.553(a)(2)(ii).

  2. 1249

    See 42 U.S.C. § 1437a(b)(9) (definition of drug-related criminal activity); 24 C.F.R. § 5.100.

  3. 1250

    The regulations define “violent criminal activity” as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.” 24 C.F.R. § 5.100.

  4. 1251

    See Madison, Wis. Code Of Ordinances Ch. 39.03(1) and (4) (Renumbered by Ord. 12,039, Adopted 2-17-98) (ordinance prohibiting discrimination against individuals with a criminal record is applicable for most offenses two years after the individual has completed or complied with the penalty).

  5. 1252

    Thomas v. Hous. Auth. of Little Rock, 282 F. Supp. 575, 580 (E.D. Ark 1967) (unwed mother admission policy is drastic beyond reasonable necessity); see also United States v. Robinson, 721 F. Supp. 1541, 1544-45 (forfeiture of tenant’s apartment and her federal housing assistance payments, which were the only means by which the defendant could provide shelter for her children, was disproportionately severe to the offense of knowingly and intentionally distributing a mixture containing cocaine base); In the Matter of Elaine Sicardo v. Peter Smith, etc. No. 2007-03609, Index No. 219067/06 (N.Y. App. Div. Second Jud. Dept., March 18, 2008) (penalty in termination case so disproportionate to the offense as to be shocking to one’s sense of fairness).

  6. 1253

    HUD, Public Housing Occupancy Guidebook, ¶ 4.6, (June 2003); see also 24 C.F.R. § 982.552(c)(1)(ii) (five-year ban on admission to voucher program for eviction from federally assisted housing).

  7. 1254

    Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 66 Fed. Reg. 28,776, 28,779 (May 24, 2001).

  8. 1255

    HUD, Voucher Program Guidebook, Housing Choice, 7420.10G, ¶ 5.7, p. 5–37 (Apr. 2001). But see Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 60 Fed. Reg. 34,660, 34,688 (July 3, 1995) (codified at 24 C.F.R. § 982.553(b)) (HUD regulations formerly stated that to deny admission, drug use or possession should have occurred within prior year).

  9. 1256

    42 U.S.C. § 3604(f)(3)(B); Joint Statement of the Dep’t of Hous. & Urban Dev. and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, 6 (May 17, 2004).