Fair Housing Issue or Not a Fair Housing Issue

Current resident has submitted an application to add her new husband to the household. He was released from prison one year ago for a felony conviction (robbery)in another state.

The owner does not think it is a Fair Housing violation if we accept him, even though we have denied other applicants with felony convictions within the past 10 years. The owner believes that we can make this decision using our own discretion on a case-by-case basis. He believes that since a person with a criminal background is not a protected class, it is not a Fair Housing violation to accept one person with a felony and not another. And, we are not making the decision based on race, or any other protected class, that it is ok to deny one and approve another with a criminal background.

He wants me to interview him to see what my "instincts" tell me about him.

I'm freaking out!!! He wants to keep the resident because she is a good payer and he doesn't want the expense of turning an apartment.

I'm afraid someone will find out we have a convicted criminal living in the community, when they believed we were screening them out. Not to mention the Fair Housing lawsuit that could occur. Knowing this resident, she'll sue us for giving her a notice to vacate because he's a convicted criminal.

What do you think about this? I don't want to lose my job over this.

Sandy, you are going to follow your current policy by making a decision based on your Resident Selection Criteria, a credit and criminal background check. This situation is complicated because your current resident MARRIED him and is asking that he be added to her lease. Still, both Applicants must be approved for residency. If he doesn't meet your Criteria, does not pass the Credit and Criminal checks, then his Application is not approved. I have had this situation many times.

I would explain to the Owner that he has created these policies for the good of the community, to comply with standards and to ensure there is a system of checks and balances in place. If he insists that you alter your Resident Selection Criteria and other standards for the credit and criminal background checks, then he may certainly do this. However, he must now, from this day forward apply the new standards to every applicant who walks in the door.

The only other decision you have to make is whether or not you want to work for an Owner who clearly cares only for the almighty dollar and not for the welfare of those who live and work in the community.

Great response Mindy - the fact is, if you have denied a single applicant in the past stating a criminal history as the determining factor then you have set a precedence that can be used against you / your owner, should someone press the issue. The idea of using an objective system is to create an equal standard to protect both the owners and residents. While it is a tough situation the resident and owner are putting you in (the owner more so since they should know better)you have a duty as a manager to follow your rental criteria. If this is a community with multiple units controlled by your owner then I suggest relaying the cost of losing other residents to knowledge of a criminal on the property will outweigh the cost of having to fill the single vacancy.

What a terrible position to be put in by a boss! While consistency is not a fair housing requirement, it certainly is a good business practice. Otherwise you may have to explain yourself and the reasons for the inconsistency in the defense of a fair housing charge or lawsuit. If you ever previously denied housing to someone else with a criminal background, they could allege that you did not want them because of any number of factors, such as their race, color, national origin, etc. if those factors are different for the husband. There is a huge business risk in allowing the new husband in as a resident when you would not have originally done so had he applied at the same time as your resident. That risk is both fair housing and liability based. Hopefully you can convince your boss to stand pat on your policies. (And BTW - criminal background checks may in the foreseeable future go the way of the dinosaur, at least as a qualifier for rental housing.)

Ok; here is my 8 pennies' worth:


Deviation from an established resident selection plan is a slippery slope; filled with potholes of potential fair housing complaints. If you must decline one applicant for cause (criminal history); you must decline ALL for same cause. There is no 'wiggle' room here.

Since I have seen your resident selection plan; I can only suggest that it is very broad in scope and that you revise it to include charges that you must decline for:

-Sex crimes
-Violent crimes
-Weapons charges
-Drug sale or manufacture charges

I would exclude charges that involve substance abuse (possession, use, DUI) if the applicant can show he is in or has completed a rehab program since the sentence; and that he is continuing to comply with support programs and other court orders. If the applicant is on probation or parole; make sure you get the name of the probation/parole officer and his contact information as a reference to verify.



It is your job to do everything you can to protect you, your owner, and the property from any kind of potential fair housing complaint.

This blog was posted here today about this very topic:

www.multifamilyinsiders.com/multifamily-...licy-conflicts-.html

I agree with all the comments here. I would stand my ground and insist the resident move out if she wants her husband to move live with her. If the owners want to keep her then they can do so but I would document the fact that this was a decision they made over your objections. As we all know fair housing violations not only cost the company but they can sue you personally. Don't put yourself in a situation that could cost you and your family, or that could ruin your reputation in the industry.

I have a close family member who went to prison for attempted murder although the supposed "victim" was sexually abusing her child. So I sympathize with those who have served their time and are good people, however you just can't take the risk. I've had to deny a gentleman who was 89 and almost bedridden because he had a felony in 1985. It was a crime against persons which is strictly prohibited by our RSC. It was obvious he couldn't commit a crime if he wanted to, but that was not my choice to make, and I'm glad.

The point I would like to make may or may not fit this particular OP. However, this seems to be an often overlooked case that causes problems between managers and tenants. A tenant within a professionally managed apartment complex could be on unfamiliar ground with both the property and the fair housing laws.

I have in my time rented an apartment to quite a few people who have never before lived in a PPM apartment. These would be tenants who may have rented their home all their lives, but have never before moved into a PPM. These might be people who rented from "Bubba Smith" who owns a couple of rent houses. Bubba comes by once a month to collect the rent, and that's about it. They never lived by rules and regulations, and now that Bubba has kicked them out for the last time, they are at the mercy of the "market". The problem is they still think their PPM apartment is the same deal they had at Bubba's house. The first thing I do when I realize this is the case, is to sit them down and explain they are now going to be renting from a property that is professionally managed and well ordered in it's operation. You then usually get a blank stare, so you have to begin drawing pictures.

I like to use the example of renting a vehicle from a car rental agency. Although many of these people have never done that either, it is a good example of renting by rules and regulations. You have a checklist for the car going out to you, and a close inspection of the car returning to the company. I explain how you need to "walk around" the car looking for damage before you take it out. I explain how you need to watch the miles you rack up while you have the car. I go into detail about how you need to keep it clean on return and full of gas, and how you would be charged a lot of money for any damages. A lot of these people would think you just take the car keys and drive it how you wish, and then simply drop it off when your done. Wrong on car rentals, and just as wrong on apartment rentals.

Sometimes, a little "skoolin" will do a world of good, PRIOR to a move in with some people. In the case of this OP, it might have helped that they KNEW they could not move in someone with a felony, but you see at old "Bubba,s house", well Bubba could have cared less what they did.

That's a difficult position to be in, but felons are not a protected class, so it is not a fair housing violation to discriminate against them. It could be a violation to make exceptions to your rental criteria.

In my state, there is one exception that may apply. If an applicants criminal or rental history is due to any disability (such as drug addiction or alcoholism,) the applicant can ask a potential landlord for a "reasonable accommodation" to overlook the portions of the criteria that are not met due to the disability if they can prove they have successfully completed treatment.

Sometimes we just want give people a chance, but we have to remain consistent across the board, every time. Fair Housing law is very clear on that point. If someone had a DUI, they can apply for a reasonable accommodation. If they were arrested for assault as an 18 year old high school student 25 years ago, there is no exception.

So let me ask this:

Would you approve an applicant that has a felony sex charge and must register as a sex offender if it was claimed that his/her sex addition caused the offense?


There was an episode of the new show 'Worst Tenants' (on SPIKE) where the crew entered a home to investigate a gas leak and found the resident had installed video surveillance technology with cameras inside several neighboring units where the residents were female.... Apparently he was able to do so using the shared ventilation system. I think he would have to register as a sex offender as well, it is not a stretch to have a peeper escalate to a physical crime. How would you handle that?

Johnny,

I haven't had this issue come up before. I'm really lucky I don't have to handle these requests myself, that is done on the corporate/owner level.

In my understanding, a disability gives the applicant the right to ask for a reasonable accommodation, and landlords are required to consider it- but not required to approve it.

Potential risk to current residents can result in the request being denied. I've had only a dozen or so requests for reasonable accommodation over the years, mostly because applicants are not familiar with it (it must be requested by the applicant, landlords cannot suggest it.) A few of the requests were denied.

Sadly; I HAVE had applicants come to me with verified matches for sex crimes. These have always been denied; but I have also always sent it for higher review to say I have done everything I could.


That said; I have processed requests for reasonable accommodation and for reasonable modification, and have not seen one declined. Never had anyone try the accommodation route to get around a criminal match though. I was even at a property that had disability as a requirement for residency (physical, mental, or addiction). And, even then, we declined most felony matches. The only ones we approved were those who had completed probation, paid all fines and restitution, and completed any ordered rehab.

I would be very careful, if I were you. If either of them are a member of a minority class, than they could bring charges of discrimination against you regardless of your past rental practices. The EEOC and HUD authority recently decided that practices which caused a "disparate effect on minorities or members of a protected class" are not legal, not even ones that do so by accident or are neutral on their face, so to speak. In other words, since Latinos and African Americans have been shown to be convicted of criminal offenses at a disproportionately higher rate than their Caucasian counterparts, to refuse to rent to all felons would cause a "disparate impact" on those minorities. The same now goes for hiring practices; as of April, you cannot refuse to hire a minority felon anymore. Now here's the part that's really gonna piss you off: I AM a Latino felon, and I have SUCCESSFULLY filed charges against both landlords AND employers. The last employer I filed against had to pay $50,000 in a suit to all of the minority applicants he had denied a job, AND still had to hire me! Also, the last landlord I filed against went bankrupt from the fines the FHA filed against him. So... Be warned; we will no longer be discriminated against after we have already done our time and paid our dues. This has never been about anything other than you people needing to feel superior to someone else, and I for one relish every chance I get to report such people as you, so go ahead and do what you want. I already KNOW who will win in court, LMAO.