HUD Issues Guidance to Owners on Excluding the Use of Arrest Records in Housing Decisions

On November 2, 2015, HUD issued Housing Notice H 2015-10: Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions.

After reading the title, many in the industry might assume this Notice was a major game-changer, modifying established regulations governing criminal screening practices. However, once you read the notice in it’s entirety, you will discover that is not the case.

The Notice highlights some important distinctions and clarifications:

• Owners cannot rely solely on arrest records as the basis for denying admission or terminating assistance/evicting tenants. In essence, HUD is reminding Owners that there is a difference between being arrested and being convicted and that all those accused of criminal activity should be afforded due process in the judicial system.  Although a record of arrest(s) may not be used to deny a housing opportunity, PHAs and owners may make an adverse housing decision based on the conduct underlying an arrest if the conduct indicates that the individual is not suitable for tenancy and the PHA or owner has sufficient evidence, other than the fact of arrest, that the individual engaged in the conduct. The conduct, not the arrest, is what is relevant for admission and a tenancy decision.
• PHAs or Owners are not required to adopt “One Strike” policies that deny admission to anyone with a criminal record or that require automatic eviction any time a member engages in criminal activity in violation of their lease. In fact, depending on the specific housing program, Owners have some discretion to make determinations based on the severity of the crime, the impact an eviction may have on other family members, and the options the household may have to mitigate the issue.
•  Federal regulations regarding mandatory screening and/or eviction for drug-related criminal activity and state registered lifetime sex offenders remain in place. This Notice did not change those prevailing requirements.
•  The applicant appeal process remains the same specific to their opportunity to dispute before and after the denial of the application. Owners should be sure their denial letters include the required appeal language.

While Owners in the industry recognize the spirit of this Notice, they are also tasked with balancing the risks involved with admitting individuals with specific types of criminal history with ensuring the safety of all residents at the property. To help achieve this balance, the Notice does provide best practices and peer examples for PHAs and owners to review and consider.

Regardless of the level of discretion an owner chooses to exercise, they must ensure their selection policy and the procedures their staff follows are consistent and comply with civil rights requirements, fair housing regulations, and federal regulations.

To view this notice, please click here.
In addition to this notice issued by the Office of Housing, HUD’s Office of Public and Indian Housing released a similar notice on this guidance as it applies to other programs.

Please be advised that any specific questions regarding the legal basis for making a housing determination for your property should be directed to your legal counsel.