HUD released on April 10 a proposal to update existing screening regulations for applicants to HUD-assisted housing with conviction histories or a history of involvement with the criminal-legal system.
Under current policy, public housing authorities (PHAs) and landlords of HUD-assisted housing have broad discretion in evaluating current and prospective tenants. As a result, some PHAs and landlords have created additional barriers for people with conviction and arrest records in need of stable housing. These barriers can make it exceedingly difficult – and, for some with conviction histories, impossible – to obtain housing.
Among other changes, the proposal would:
- Clarify the types of “relevant criminal activity” for which PHAs and owners can screen. The rule would reign in some discretion PHAs and owners/operators have in conducting background screenings by specifying that only drug-related criminal activity, violent criminal activity, and other criminal activity “that would threaten the health, safety, or right to peaceful enjoyment” of the premises by others may be included in background screenings. The rule does not define “drug-related criminal activity,” “violent criminal activity,” or what constitutes criminal activity “that would threaten the health, safety, or right to peaceful enjoyment” of others.
- Limit lookback periods in admissions decisions to no more than three years prior to an application. The NPRM states that PHAs and HUD-assisted owners/operators should use a lookback period of “no more than three years” for most convictions, and notes that three years may not be the right lookback period for all convictions, any lookback period longer than three years would be considered “presumptively unreasonable.” PHAs and HUD-assisted owners/operators would be allowed to extend this lookback period for certain convictions if empirical evidence exists justifying the extension.
- Mandate an individualized assessment of rental applicants with a conviction history in admissions and eviction/termination decisions. Any time criminal history is used in an admission, eviction, or termination decision, the PHA would be required conduct an individualized assessment of the tenant that considers mitigating factors and other circumstances. However, an individualized assessment need not be performed if an individual’s record includes cases where statue requires denial of admissions based on criminal history.
- Restrict the use of arrest records and ban the use of arrest records as the sole basis for housing denial or eviction. The proposed rule clarifies that an arrest record alone may not be used as the basis for denying someone admission to HUD housing. However, an arrest record may be used in conjunction with other evidence of conduct to assess an applicant’s potential success as a tenant. Similarly, an arrest record could not be used as the sole basis to evict a current tenant from HUD-assisted housing but can be used along with other evidence to determine whether criminal conduct necessitating eviction occurred.
- Increase the standard of proof for eviction and termination decisions based on criminal activity. For evictions based on alleged criminal activity, HUD proposes increasing the standard of proof from a “reasonable cause” standard to a “preponderance of the evidence” standard, meaning that based on the information available, it is more likely than not that the conduct in question occurred.
- Better regulate third-party screening services and companies. The rule clarifies that tenants should be provided with a detailed copy of their screening report, including when information is pulled by a third-party screening company, and notes that third-party screening companies are expected to abide by the provisions of the Fair Housing Act.
NLIHC, in partnership with the Vera Institute for Justice, Formerly Incarcerated and Convicted People and Families Movement (FICPFM), Shriver Center on Poverty Law, and National Housing Law Project (NHLP), will be hosting a webinar on April 29 to provide a comprehensive overview of the proposal, its implications for people with conviction histories, and tips for writing and submitting comments on the proposed changes.
The proposed rule is open to public comments until June 10. Use the Vera Institute’s comment portal to post your own comment or to show support for the rule using Vera’s template.
View the proposed rule and submit a public comment here.
Register for the April 29 webinar here.