The Department of Housing and Urban Development (HUD) just last month released their new guidance governing the use of criminal history reports as part of a tenant background check. They are trying to drastically limit the use of criminal background checks in the tenant screening process due to the potential of discrimination against certain protected classes.
From WestfairOnline.com (Apr. 14, 16):
The HUD Office of General Counsel (OGC) finds that because African-Americans are arrested and convicted in higher numbers compared to the general population, they suffer a disparate impact when landlords disqualify tenants solely on the basis of arrests or felony convictions.
In some cases, primarily in the public housing area, exceptions remain regarding the use of criminal history records.
From Lexology.com (Apr. 29, 16):
HUD’s regulations require a criminal background check of applicants for federally-assisted public housing and reject those having a household member who is currently using illegal drugs, has been previously evicted from federally-assisted public housing for drug-related criminal activity in the past three years, or is a registered sex offender. State and federal regulations also list other prior criminal activity that may, but is not required to, be disqualifying.
Pulling records from the sex offender registry for purposes of tenant screening in the private sector is not well defined, at least in regards to the new guidance. Sex offender records are very important and are approved for public housing tenant screening purposes. However the potential for the lawful use of sex offender reports appears high for private sector tenant background checks.
The question of whether or not it is okay to utilize sex offender registry records in the tenant screening process is not very clear. Plainly speaking a sex offender registry record is basically a criminal record report, which is prohibited by the new HUD guidance. However, without specific inclusion it may be presumed lawful. The vagueness of this detail highlights the need for a professional tenant screening company to conduct tenant background checks on behalf of landlords and property managers.
Professional tenant screening companies make it their priority to remain current in all laws governing the use of public records including criminal background records as part of a complete tenant check, including sex offender registry records.
From Washington Multi-Family Housing Association (www.wmfha.org; Apr. 14, 16):
Unfortunately, the HUD Guidance does not mention sex offenders or persons with convictions for terrorism. We can only assume that this was an oversight and that landlords can still reject persons with sex offenses who are required to register as sex offenders under state law.
The span and scope of the new HUD guidance has not gone without criticism, especially in regards to clarity over the lawful use of sex offender registry records.
From an Op-Ed on GrantCountyBeat.com (Apr. 15, 16):
There is only one specific exception to the rule; those convicted of manufacturing or distributing illegal drugs. Why not sex offenders too? So if I decide that someone with a history of burglary or assault, maybe 2 or 3 convictions, is not eligible, because I want to protect my property and/or the neighbors, I now have to consider whether or not I’ll be accused of unfair discrimination and could potentially lose my property because I don’t have the cash to pay the fine.
Just how much of an impact the new HUD Guidance is going to have in the private housing market remains unknown. At this point it appears that criminal background checks including sex offender registry checks will remain an option in the tenant screening process for the private sector. However history has shown that rules, laws and governance enacted in the public sector tend to migrate over to the private sector. The potential for the lawful use of sex offender reports appears high for private sector tenant background checks. In the end the HUD Guidance is trying to move the housing industry away from blanket disqualifiers and instead recommends evaluating one tenant at a time and giving them a fair chance at renting.
To learn more about the new HUD Guidance and questions it raises such as the proper use of sex offender records in the tenant screening process read recent TenantScreeningUSA.com press release: http://tenantscreeningusa.com/tenant-screening-news/in-light-of-recent-guidance-from-hud-sex-offender-registry-checks-presumed-to-remain-lawful/