2. Criminal Record Bans in Government-Assisted Housing

How can my criminal record affect my chances of getting accepted into government-assisted housing?

When you apply to government-assisted housing through a Public Housing Authority (PHA) (see definition on PG. 340), the PHA runs a criminal background check on:

    You;
    Everyone currently living with you;
    Everyone 16 or older who might live with you;
    Any biological parent of any children who will be living in the household, even parents who do not plan to live with you and are not part of the application to the PHA.

The rules governing who may be denied are very broad. The PHA tries to exclude people it believes will “risk the health and safety of other tenants.” On the other hand, the PHA may choose to overlook your criminal convictions and accept your application, especially if they see evidence that you have changed since the time of your conviction.[1225]

Some cities in California are making an effort to make affordable housing more inclusive to people with criminal records. For example, in 2016, the city of Richmond approved a city ordinance to protect the housing rights of people in reentry.[1226] The “Fair Chance Access to Affordable Housing” ordinance will be added to the Richmond Municipal Code as Chapter 7.110 in 2017.[1227] San Francisco adopted a similar ordinance in 2014.[1228] For more information about San Francisco’s Fair Chance ordinance, see Appendix H on PG. 427.

IMPORTANT! There are a lot of rules about who can and cannot live in government-assisted housing. Every program has its own set of rules that you should be aware of BEFORE you apply. You want to know what laws or program policies might prevent you from living there because of a criminal conviction or other criminal history information, even if your family already lives there. Some bans are required by law, while others are allowed, but not required. These types of bans are up to the discretion and policies of the PHA and/or the owner of the government-assisted housing. You should look at the policies BEFORE YOU APPLY.

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  1. 1225

    See Know Your Rights: Housing and Arrests or Criminal Convictions, The Bronx Defenders (Oct. 2, 2010), http://www.bronxdefenders.org/housing-and-arrests-or-criminal-convictions/. ↑

  2. 1226

    See Richmond City Council Adopts Fair Chance Housing Ordinance Press Release, Bay AreaLegal Aid (Dec. 21, 2016), https://baylegal.org/wp-content/uploads/2016/12/Press_Release_Fair-Chance-Housing-Ordinance.pdf ↑

  3. 1227

    See Special meeting of the Richmond Housing Authority, Richmond City Council (Dec. 20, 2016), http://www.ci.richmond.ca.us/ArchiveCenter/ViewFile/Item/7683. ↑

  4. 1228

    SF Human Rights Commission Fair Chance Ordinance, http://sf-hrc.org/fair-chance-ordinance. ↑

Can a Public Housing Authority (PHA) refuse to rent to me just because of my criminal record?

Yes, it’s possible. Rules for government-assisted housing can be VERY STRICT. Your local Public Housing Authority (PHA), which runs a lot of the government-assisted housing programs like Section 8 Housing Choice Vouchers and the Public Housing program, and works with private owners that accept government assistance to keep their buildings more affordable, may reject you and your household because of certain criminal convictions.

There are two reasons that a PHA or owner of government-assisted housing will reject you—the first is when it’s legally required (meaning the PHA and/or the owner of government-assisted housing don’t have a choice and must deny you), and the second is when it’s allowed but not required (meaning the PHA and/or the owner of government-assisted housing has a choice to deny you, but doesn’t have to). It is important for you to understand both situations, and your options to challenge the bans that are allowed, but not required, or spot situations where a PHA or owner of government-assisted housing tells you that the ban is legally required, but there is a legal loophole. Keep reading to learn more.

OVERVIEWREQUIRED VS. ALLOWED BANS IN GOVERNMENT-ASSISTED HOUSING

(1) BANS THAT ARE REQUIRED: Sometimes, a government-assisted housing provider MUST deny certain applicants because they have a specific type of conviction on their record. Because the law says that the rejection is required (“mandatory”), PHAs and owners of government-assisted housing do not have a choice in the matter. They must deny you if you have one of the convictions listed in the law. For all conviction-based bans that are legally required, see the chart PG. 361, and the questions on PG. 364.(2) BANS THAT ARE ALLOWED, BUT NOT REQUIRED (“CATCH-ALL” BANS): More commonly, you will likely fall into a “catch-all” ban on people with any criminal activity (which includes both arrests and convictions, even if they have been dismissed) that threaten the health, safety, or right of peaceful enjoyment to the government-assisted property by the other residents, the property owner, or the PHA’s staff or agents/contractors. This includes drug-related criminal activity and violent criminal activity (again, both arrests and convictions, even if dismissed, can be considered). Here, the law doesn’t require that you get denied from the housing program, but it allows PHAs and owners of government-assisted housing to deny you on this basis.

    See the chart summarizing these bans on PG. 361, and the questions on PG. 364.See Appendix E, PG. 419, for an even more detailed chart explaining which specific criminal convictions make denial mandatory (required by law) and which make denial permissive (allowed, but not required by law), including citations to the specific laws.[1229]
  1. 1229

    An Affordable Home on Re-entry: Federally Assisted Housing and Previously Incarcerated Individuals, NHLP (2008). ↑

Where do I find a PHA’s rules & policies about criminal records?

The rules for criminal records are different for every government-assisted housing program and are determined locally. Even an owner of government-assisted housing CAN HAVE DIFFERENT RULES than the Public Housing Authority (PHA) that oversees the government-assisted housing programs. You should be able to find these rules FOR YOUR PROGRAM. You can look in the following places:

    The PHA’s Annual Plan
    The PHA’s Admission and Occupancy Plan (ACOP)
    The lease for public housing
    The Administrative Plan for the Section 8 Voucher program
    The lease and/or house rules for all other government-assisted programs[1230]
    The PHA’s website for these plans
    By Asking PHA and/or owner for a copy as well.
  1. 1230

    This includes HUD-assisted housing, Rural Development (RD) project-based programs, and Low Income Housing Tax Credit (LIHTC) properties. ↑