We are asked often if a convicted criminal can be denied housing in a condominium because of their past criminal record.  We have been writing sex offender amendments to keep sex offenders out of condominium developments for a number of years.  The question then follows, what about any other crime, can we ban all criminals?

In April, 2016, HUD issued a guidance letter addressing these questions.  The letter states that a housing provider violates the Fair Housing Act when a policy or practice has an unjustified discriminatory effect. Since higher than average incarceration rates exist among Hispanics and African Americans in the U.S., the use of criminal records to deny housing can cause a “disparate impact” on these races. The HUD guidance provides national statistics that show that racial and ethnic minorities face disproportionately high rates of arrest and incarceration. For example:

• In 2013, African Americans were arrested at a rate more than double their proportion of the general population.

• In 2014, African Americans comprised approximately 36 percent of the total prison population in the United States, but only about 12 percent of the country’s total population. In other words, African Americans were incarcerated at a rate nearly three times their proportion of the general population.

• Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population, with Hispanic individuals comprising approximately 22 percent of the prison population, but only about 17 percent of the total U.S. population.

The HUD guidance states that property providers should not use arrest records as a basis for excluding applicants since an arrest which does not lead to a conviction does not prove that an individual is engaged in illegal activity. The guidance also states: “A housing provider that imposes a blanket prohibition on any person with any conviction record- no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then- will be unable to meet this burden.”

According to HUD, if a condo association uses criminal records to screen, the policy must be narrowly tailored. The guidance states a condo association would need to prove this “tailored” policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” A property provider must be able to show its “tailored” use of criminal background checks “accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.”

If you want further guidance on the use of criminal records to exclude condominium owners from your community, please contact our office.