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Apartment vacancies in the United States are at an all-time low so living space is tight. Last Monday the U.S. Department of Housing and Urban Development issued new guidelines that restrict landlords from excluding tenants based on their criminal or or arrest records.

The Fair Housing Act (FHA) is the federal constabulary that prohibits housing providers (including condominiums and homeowner'due south associations) from enforcing rules and covenants that discriminate on the basis of race, color, sexual practice, religion, national origin, inability or familial status.

Concluding yr, the U.Southward. Supreme Court held that a valid claim could be brought nether the FHA if an otherwise neutral policy has a negative upshot on a detail protected grade of people — a so-called "disparate impact." At the time, I wrote a cavalcade suggesting that this new holding might call into question sure mutual restrictions, such every bit those based on credit scores or criminal convictions, which may be found to adversely impact certain racial groups.

Final Monday, the U.Southward. Department of Housing and Urban Development (HUD) issued legal guidance on this verbal issue, particularly as it applies to criminal history restrictions. It'south articulate that communities that restrict rentals or sales based on criminal history should review their policies with their attorney, because certain restrictions are at present likely to trigger a fair housing inquiry.

HUD points out that nearly one-3rd of U.S. adults have a criminal record of some kind, and that African Americans and Hispanics are arrested and bedevilled at a much higher rate than their percent of the full general population. So, housing restrictions based on criminal history may unduly bear upon minority home-seekers. And, while having a criminal record is non itself a protected characteristic under the FHA, if the restriction in question has an "unjustified" discriminatory consequence against a protected class (whether or not the restriction was intended to be discriminatory), it would exist illegal.

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The HUD guidance goes on to discuss detail types of restrictions, and how they might be evaluated under the relevant legal exam — namely, that a brake having a negative bear upon on individuals of a particular race, color, national origin, etc. is unlawful if it is not "necessary to serve a substantial, legitimate, nondiscriminatory involvement of the housing provider, or if such interest could be served by another practice that has a less discriminatory result."

The actual legal analysis is essentially more complicated, but that is the full general concept.

Take, for example, a restriction against renters with a prior arrest record, regardless of whether they were bedevilled of a criminal offense. HUD suggests that a bare arrest history cannot satisfy the association's burden of proving that the policy is necessary to achieve a legitimate, nondiscriminatory interest. The Supreme Courtroom has held that the mere fact of an arrest offers little to no proof that the person actually engaged in a criminal deed. Only beingness arrested does not provide a reliable basis to determine if an individual constitutes a adventure to the prophylactic of owners and residents. And then, an association should near certainly not reject a tenant or purchaser merely considering they have an arrest record.

A record of a conviction, in contrast, does demonstrate that the candidate committed a criminal offence. But, the association still has to demonstrate that the particular type of offense is directly related to their legitimate interest in protecting the community. That is, a conviction for a small traffic crime could not reasonably present a risk to the community, and then prohibiting all renters or owners who have been convicted of a "crime," as a coating rule, is unlikely to pass muster.

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Instead, a legal, enforceable association policy restricting renters or owners on the footing of criminal tape would have to distinguish betwixt criminal conduct that presents a demonstrable risk of public safety, and conduct that does not. The policy or rule must take into account the nature and severity of the crime, and the amount of time that has passed since the crime was committed, if it is going to serve a legitimate association interest. So, fifty-fifty restrictions banning all felons may be challenged under the law, as such a dominion does not take into business relationship the type of felony (violent versus so-chosen "white collar" crime), or the age of the conviction. It is obvious that a person convicted 20 years ago of tax fraud presents far less risk to a community than a person recently convicted of a violent set on.

Last, the association will have to prove that the restriction is necessary to achieve a legitimate interest, and that that interest could non be serve by another, less discriminatory practice.

Overall, this new HUD guidance dramatically changes the legal assay of the validity of restrictions based on criminal history. A total evaluation of the law is far as well complicated for this article, but I strongly recommend that every association with criminal record restrictions contact their attorney for farther communication.

Ryan Poliakoff is a partner at Backer Aboud Poliakoff & Foelster, LLP. Ryan and his father, the belatedly Gary Poliakoff, are co-authors of "New Neighborhoods — The Consumer's Guide to Condominium, Co-Op and HOA Living." Poliakoff'due south column, which runs in impress in each Lord's day, will brainstorm running on floridatoday.com, normally posted early Fri afternoons. Email your questions to Poliakoff at condocolumn@gmail.com. Please be sure to include your hometown.