Criminal Background Checks: What Landlords Need to Know

A criminal background check searches for records of arrests, charges, and convictions in the jurisdictions covered by the search. Depending on the type of search ordered, it may cover county court records, state repositories, federal court records, and national databases.

The report will typically show the offense, the date, the jurisdiction, the disposition (conviction, acquittal, dismissed, etc.), and the sentence. It may also show pending charges.

It is important to understand what the report does not show. It does not show arrests that did not result in charges, charges that were dismissed, or records that have been expunged or sealed under state law.

A nationwide criminal database search queries a large aggregated database of records from multiple states and counties. It provides broad coverage quickly and at low cost, but it is not comprehensive — not all jurisdictions contribute records, and some records may be outdated.

A county criminal search queries the actual court records at the county level — the most authoritative and current source. Because most criminal cases are prosecuted at the county level, a county search in the jurisdictions where an applicant has lived provides the most reliable results.

For most tenant screening purposes, a combination approach works best: a nationwide database search to identify any jurisdictions of concern, followed by county-level searches in those jurisdictions.

The Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, familial status, and disability. Criminal history is not a protected class under federal fair housing law — but using criminal history as a blanket disqualifier can still violate the Fair Housing Act if it has a disparate impact on a protected class.

In 2016, HUD issued guidance stating that blanket policies excluding anyone with a criminal record may violate the Fair Housing Act. HUD recommends that landlords conduct an individualized assessment that considers the nature and severity of the offense, how long ago it occurred, and evidence of rehabilitation.

Several states and cities have enacted additional restrictions on the use of criminal history in tenant screening. Always check the laws in your jurisdiction before implementing a criminal history policy.

When reviewing a criminal background check, focus on convictions that are directly relevant to the tenancy. Crimes involving property damage, violence, drug manufacturing, or theft from a landlord are more relevant than a decade-old minor offense.

Consider the nature and severity of the offense, how long ago it occurred, the applicant's age at the time, and any evidence of rehabilitation. A single conviction from 15 years ago is very different from a pattern of recent offenses.

Document your evaluation process for every applicant. If you decline an application based on criminal history, be prepared to explain your reasoning in terms of the specific offense and its relevance to the tenancy.

If you decline a rental application based in whole or in part on information in a background check, the FCRA requires you to follow the adverse action notice process. You must provide the applicant with a pre-adverse action notice (including a copy of the report and their FCRA rights), wait a reasonable period, and then send a final adverse action notice.

Background Check Solutions provides all required adverse action notice templates at no extra charge. Contact us if you need guidance on the process.