“What’s a Property Manager to do when a prospective/current tenant is a sex offender?”

Note: Advice given herein does not constitute the formation of an attorney-client relationship. Further, any communication with the author may not necessarily be secure or confidential, and initiating contact with the attorney does not create an attorney–client relationship.

4th in a multi-part series…What is a Property Manager to do?

By: Mitzi Hall, The Hill Law Firm

Can a Landlord Deny the Application of a Convicted Sex Offender?

Prior to 2016, landlords whose states did not directly address landlords’ use of sex offender databases had little, if any, guidance on whether they could use them to evaluate a prospective tenant. Many practical considerations suggested that checking the databases could be a bad idea. Failing to check, however, could be just as bad.

For example, if a landlord announces that she will use the database to screen, does so, but an inaccurate database results in renting to an offender who commits a crime on her property, she might get sued by the victim. Or, should she decide not to access the database and the applicant harms another tenant, she might be sued by the victim for failing to exercise due care in her screening procedures.

Throwing up their hands in the face of a “damned if you do, damned if you don’t” situation, some legal experts have advised landlords to steer clear of criminal background checks (and sex offender databases) altogether. They suggested that thorough screening using more traditional methods will probably uncover relevant information without the risks.

All of this changed in 2016, when HUD (the U.S. Government’s Department of Housing and Urban Development) issued a guidance memo that advised landlords to never use arrest histories alone as the basis of a rejection and to carefully weigh the facts surrounding any conviction history before using it as the basis of a rejection.

In brief, landlords should consider only whether the applicant poses a current threat to co-tenants, guests, and employees. That analysis takes into consideration the age of the conviction, its nature, and any relevant intervening facts. For example, a recent rape conviction perpetrated on a neighbor’s child would be much more relevant to a landlord than a 25-year-old conviction for statutory rape followed by a crime-free life. (Read more about this memo in HUD Guidance Memo on Landlords’ Use of Arrest and Conviction Records.)

“But wait! Being a sex offender is not a protected class!”

The Fair Housing Act makes it illegal to discriminate based on race, national origin, color, religion, sex, familial status or disability when there is no legitimate, non-discriminatory business need for the policy. Since sex offenders are not a protected class, they can be denied housing right? Not so fast.

Under a disparate impact theory, policies can be challenged that have a “disproportionately adverse effect” on those protected by the Fair Housing Act and are “otherwise unjustified by a legitimate rationale.”  Citing statistics that racial minorities are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population, HUD has advised in their Guidance memo that while the Fair Housing Act does not prohibit housing providers from appropriately considering criminal history when making housing decisions,  overbroad criminal history related bans are likely to violate the Fair Housing Act.

What if a prospective tenant is untruthful about his/her status as a sex offender?

Regardless of the landlord’s stand on renting to convicted sex offenders, if the rental application asks about a conviction and the applicant misrepresents his status, the landlord can argue that the misrepresentation constitutes a material breach of the lease.  In that situation the contract could be voided entirely, and then could be used as the basis of denying the applicant housing or evicting a current resident

What if a current tenant is in violation of his probation, parole, or other legal requirements by living on your premises?

If a tenant or potential tenant’s presence violates the terms of his parole or probation or otherwise violates state or federal law, they can be evicted on that basis. This is also true of a prospective tenant. If, for example, the rental unit is next to a playground or a bus stop and this violates the terms of the sex offender’s release, it can be grounds for an eviction or denial of an application.

Conclusion

Property managers owe a duty to all of their residents to protect their health and safety. It can often be difficult to balance this very important duty with the duty to be non-discriminatory when screening new tenants. That said, you should carefully evaluate your current policies to ensure that if you do use criminal history as a screening tool for potential tenants that you avoid blanket denials and look at the application as a whole in making rental application decisions.

Have Questions or Just Want to Know More?

You’re welcome to contact the author anytime:    Mitzi Hall mitzi@hillfirmlaw.com 615-815-1758