Many people in the San Francisco Bay Area face problems finding an apartment due to illegal housing discrimination. While most of us understand that a person cannot be denied housing on the basis of physical characteristics such as race or gender, federal and city laws also protect prospective tenants from certain forms of discrimination based on criminal record. In fact, the U.S. Department of Housing and Urban Development (HUD) recently released official guidelines on this subject.
What Constitutes Illegal Housing Discrimination?
The Fair Housing Act is the federal law that prohibits discrimination in the “sale, rental, or financing” of housing. On April 4, HUD’s general counsel issued official legal guidance on how the FHA applies to the “use of criminal records by providers of housing.” According to HUD, many landlords may be illegally discriminating based on criminal record even if they did not specifically intend to do so. In other words, a “facially neutral” policy of refusing to rent to individuals based on their criminal record may be illegal if it has a “disparate impact” on certain protected minority groups.
A Landlord Cannot Refuse to Rent Due to an Arrest
HUD’s guidelines make it clear that a landlord may not refuse to rent housing to a prospective tenant solely because he or she has been arrested for a criminal offense in the past. After all, an arrest is not the same thing as a conviction. While a landlord has the right to refuse rental to a person who poses a “potential risk” to the safety of the property or other residents, an arrest record, in and of itself, is not sufficient evidence of such risk.
A Landlord May Not Impose a Blanket Ban on All Convicts
If a prospective tenant has been convicted of a crime, rather than merely arrested or charged, then the landlord may be able to deny housing. However, HUD’s guidelines do not allow landlords to lump all criminal convictions together: “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” is still committing illegal discrimination under the FHA.
A landlord may still adopt a “narrowly tailored” policy designed to exclude prospective tenants whose criminal convictions indicate a “demonstrable risk to resident safety.” For instance, the FHA would likely not prevent a landlord from refusing to rent to a person convicted of armed robbery within the last 10 years. But the same landlord could not refuse to rent to someone convicted of a non-violent misdemeanor 20 years ago.
There is also an important caveat. The FHA does not prohibit housing discrimination against individuals convicted of the “illegal manufacture or distribution of a controlled substance.” A landlord may impose a blanket ban against renting to such persons. Keep in mind this only applies to persons convicted of manufacturing or selling drugs. A landlord cannot refuse to rent to someone because he was once charged with marijuana possession.
Additional Rules for San Francisco Public Housing
In 2014, the City of San Francisco adopted the Fair Chance Ordinance (FCO), which imposes additional restrictions on landlords who rent “affordable housing” units in the city. Under the FCO, a covered landlord may not ask an affordable housing applicant about her criminal history until after determining her eligibility to rent the unit. Even then, the landlord may not ask or inquire about any arrest that did not lead to a conviction, or any conviction that is more than seven years old.
Get Advice from a San Francisco Tenant Lawyer
If you have been the victim of illegal housing discrimination or landlord harassment due to your past, it is important to speak with a San Francisco tenant lawyer as soon as possible. The attorneys at Elke & Merchant LLP specialize in representing tenants in San Francisco, Oakland, and Berkeley. Call us today at (415) 294-4111 if you need immediate assistance.