Housing for Persons with Criminal Records

Having a criminal record makes it challenging to find affordable housing, but someone with a criminal record may still qualify for many federal low-income housing programs.

In 2016, HUD issued guidance to federal housing providers to loosen restrictions for applicants with criminal records. HUD’s concern was that a large number of low-income applicants may have criminal records, closing many off from housing assistance who may only have minor infractions.

Because of disproportionate arrest, conviction, and incarceration rates for African-Americans and Hispanics; HUD determined that using criminal records alone when rejecting an applicant violates the Fair Housing Act of 1968. The Fair Housing Act bars discrimination in the sale, rental or financing of housing and other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin. People with criminal records are not a protected class under the Fair Housing Act, but basing application decisions solely on having a criminal record has a disproportionate impact on racial and ethnic minorities who are protected under the Act.

Criminal History Guidelines for Federal Housing Providers

  • There is a lot of leeway given for criminal record requirements as part of their application and admissions process.
  • An applicant cannot be denied admission only on the basis of arrests.
    • An arrest only means that someone is suspected of criminal activity and it has not yet been proven.
  • Convictions can hurt an applicant's chances of qualifying.
    • A conviction assumes that evidence was presented that is proof that the applicant engaged in disqualifying criminal activity.
    • The housing provider must not only look at what kind of crime was committed, but also when it occurred.
      • Violent and drug-related crimes have more weight than petty crimes.
      • For example: An applicant with an assault conviction in the last year would be evaluated differently than one with a shoplifting conviction ten years before.
    • Federal housing providers are also instructed to look at the underlying conduct of the applicant, and what he or she has done since the conviction.
      • Applicants who show that they have met court requirements and continued rehabilitation efforts are more likely to get approval for housing assistance than those with a history of repeat offenses.
  • Persons on a state’s sex offender registry are banned from some HUD programs, including Section 8 Housing Choice Voucher (HCV), Public Housing, and Section 8 Project-Based Rental Assistance (PBRA).

How a Background Check is Done

  • HUD housing providers will require a background check for all adult members of the household (18 years or older), and all persons convicted of a crime as an adult.
  • The application should include information about your right to request a reasonable accommodation; and to present evidence of mitigating circumstances such as participation in drug treatment, counseling or educational programs.

​​​​​​​Why is a background check important?

Federal housing providers have a number of valid reasons to look at criminal records. They must make sure that their residents feel safe in their homes. While housing providers cannot deny all applicants with a criminal record, they are justified in excluding applicants with a recent history of crimes that threaten the health, safety or right to peaceful enjoyment of the premises by residents and staff. Recent convictions for violent or drug-related crimes often fall under this type of exclusion.

The 2016 HUD guidance balances the need to provide a safe living environment with the Fair Housing Act's nondiscrimination requirements. If a federal housing provider uses criminal history as part of its application review, HUD requires an analysis of whether its policy is discriminatory.

Requirements for HUD Housing Programs

HUD oversees many housing programs that have the same criminal history policies, which are:

  • Permanent ban on admission, convicted of producing methamphetamine at federally assisted housing.
  • Permanent ban on admission for lifetime registered sex offenders.
  • Three-year ban, prior eviction from federally assisted housing for drug-related activity unless applicant is rehabilitated.
  • PHA/owner must deny admission for a current user of illegal substances.
  • PHA/owner has discretion to admit applicants with a history of drug-related offenses, violent criminal history or crimes that threaten health, safety or peaceful enjoyment of the property.

A list of the programs with these policies can be found below.

Section 8 Housing Choice Voucher (HCV) Program

The Section 8 HCV program provides tenants with a rental subsidy voucher that they can use to rent apartments from private landlords. Program participants pay 30% to 40% of the household's monthly income towards rent, and the rest is paid to the landlord by the PHA that administers the voucher. The HCV program allows tenants the freedom to rent any unit that meets the program's physical condition and cost guidelines.

For more information about how to apply for public housing, see Affordable Housing Online's Section 8 Housing Choice Voucher Guide.

Public Housing

The Public Housing program supports affordable rental apartment communities and scattered homes and apartments (known as "scattered sites") that are owned and operated by PHAs. The PHAs receive an operating subsidy for these apartments that allows tenants to pay a lower rent.  Public Housing tenants pay either 1) 10% of their monthly gross income (minus exclusions), 2) 30% of their monthly adjusted income gross income minus exclusions and deductions) or 3) a minimum rent of between $0 and $50 established by each housing authority independently.

For more information about how to apply for public housing, read Affordable Housing Online's Public Housing Guide.

Section 8 Project-Based Rental Assistance

Administered by HUD, the Section 8 Project-Based Rental Assistance program provides affordable apartment communities that are owned by private landlords, both nonprofit and for-profit. It provides landlords with a subsidy so that tenants pay for rent either 1) 10% of their monthly gross income (minus exclusions), 2) 30% of their monthly adjusted income gross income minus exclusions and deductions) or 3) a minimum rent of between $0 and $50 established by each housing authority independently.

For more information about how to apply for public housing, see Affordable Housing Online's Section 8 Project-Based Rental Assistance Guide.

Section 8 Moderate Rehabilitation Program (Mod-Rehab)

Although this program was repealed in 1991, projects still exist with Section 8 Moderate Rehabilitation contracts. These properties receive project-based rental assistance that allows tenants to pay 30% to 40% of their household income for rent.

Other HUD Programs

  • The Section 202 program provides development capital and rental subsidies for apartment communities serving low-income seniors.

  • The Section 811 program provides similar resources for developing and operating properties serving disabled adults.

  • The Section 221(d)(3) and Section 236 programs provide mortgage guarantees that provide favorable financing for low-income rental developments making it possible for owners to charge lower rents.

  • HOME is a flexible block grant program where HUD provides funding to states and local governments to support affordable housing development and provide affordable rent for tenants.  HOME allows owner discretion in how they treat all criminal records in the application process. However, HOME is almost always used with other HUD funding that has requirements regarding review of criminal history as described above.

HUD Programs with No Criminal Record Requirements

There are only a few HUD programs with no federal criminal background requirement, which mostly target the needs of homeless persons:

  • Shelter Plus Care and the Supportive Housing Program provide support for homeless shelters and transitional housing.

  • Housing Opportunities for People with AIDS (HOPWA) provides housing and services for low-income people living with HIV and AIDS.

Requirements for Other Federal Housing Programs

There are other federal housing programs that have the same criminal history policies. Owners have discretion in admitting applicants with the following:

  • Convicted of producing methamphetamine at federally assisted housing.
  • Lifetime registered sex offender.
  • History of drug-related criminal activity.
  • History of violent criminal activity.
  • History of crimes that threaten health, safety, or peaceful enjoyment.
  • Current user of illegal substances.

Low-Income Housing Tax Credit Program (LIHTC)

The Low Income Housing Tax Credit program provides tax credits to investors who invest capital in properties that serve low-income households. Although the LIHTC program leaves property owners with discretion as to use of criminal records when reviewing applicants, it is very often used with other federal programs that have more restrictions regarding criminal history. You should check with the property owner or management company to confirm what funding and subsidy are associated with the apartments.

For more information about how to apply for a LIHTC unit, read Affordable Housing Online's LIHTC Guide.

USDA Rental Housing Programs

The U.S. Department of Agriculture (USDA) administers affordable housing programs that help low-income renters in rural areas: 

  • The Section 515 Rural Rental Housing program provides low-interest loans to developers of low-income apartment communities.
  • The Section 514 Farm Labor Housing Grant program makes grants for community based housing for migrant and seasonal farmworkers.
  • The Section 516 program provides low-interest loans to community organizations or farmers to build housing for farmworkers.

Apartments with Section 515 and Section 514/516 funding also often have rental assistance attached to them from the Section 521 Rural Rental Assistance program. Tenants living in apartments with Section 521 rental assistance pay 30% of their adjusted monthly income or 10% of their gross monthly income for rent. The owners of USDA-funded properties have discretion in how they apply criminal history.

In many cases, apartment communities built with USDA funding may have rental assistance from HUD, such as Section 8 Project-Based Rental Assistance. In that case, the stricter criminal history standards are used when reviewing applications. You should check with the property owner to confirm what funding and subsidy are associated with the apartments.

Recommendations for Applicants with a Criminal Record

Federal housing providers must consider a number of factors when looking at criminal history. They are supposed to look at the seriousness of the offense, how long ago it happened, and what an applicant has done since that time for rehabilitation. This offers applicants a chance to address a criminal record positively when applying for affordable housing.

Have evidence of treatment and rehabilitation.

  • Examples of evidence are completion of a drug treatment program, participating in a job training program or maintaining steady employment.
    • Documentation can include certificates received for completing programs, job performance reviews, counselor certifications or teacher evaluations.
    • It is also helpful to have letters of support from people that can speak to an applicant's personal progress and involvement in the community.
      • Statements of support can come from your current employer, teachers, probation officers, social workers, current and former landlords, community leaders or clergy.
      • The letters should address the key points that reviewers want to know when accepting someone for housing.
      • Remember that the PHA or owner wants tenants that will not pose a safety risk to other residents. They respond best to evidence that the circumstances have improved since the conviction, that the applicant can get along with other residents and that they are motivated to continue making improvements in his or her life.
      • These statements of support can also be very important documentation if you are denied housing assistance and challenge the decision.
  • Federal housing providers also consider other factors in addition to looking at the applicant's rehabilitation and ongoing progress, such as:
    • Considering how a housing denial would have an effect on the rest of the family.
    • Circumstances due to a family member's disability.
    • Evidence of a family's willingness to participate in social service or counseling programs as a positive factor.

Save all criminal documentation.

  • If possible, it is helpful to scan and save your criminal records, evidence of progress, documentation of rehabilitation and letters of support.
    • You can take a picture of a document with your phone and add the pictures to free cloud services like Dropbox or Google Drive.
      • Cloud based storage is basically another computer that is not physically in your presence. It is where you can store data, pictures, documents or anything you can save on a computer. These cloud services are secure and you can access your files anywhere you get cell phone or Internet connections.
    • You can also email or text message the pictures to yourself, family or friends. That way, the documents are backed up somewhere other than on your phone. If your phone were to become lost or damaged, your important documents would still be saved.

Accurately report criminal history.

  • When applying for federally assisted housing, applicants should make sure to accurately report their criminal history.
  • It is recommended to get a copy of your criminal record so that you know what application reviewers will see when they run a background check.

How to Appeal a Denied Application

Review denial of admission.

For all HUD and USDA housing programs, if you are denied admission, the PHA or owner must send a written notice of the denial. Note: Even if you win your appeal, you are not guaranteed housing assistance as you may still be denied on other grounds.

  • The notice must include the basis for making the denial and information about how to appeal the decision.
  • It is supposed to be specific about what prompted the denial, which should help the applicant prepare documents for an appeal.
  • If it is not specific, you should seek clarification from the housing provider ahead of your hearing.
    • If you are applying for a vacant Public Housing or Section 8 Project-Based Rental Assistance unit, you can also request that the office holds the unit open pending the outcome of your appeal.

    Determine if appeal is allowed.

    Hosing providers for the following programs are required to hear appeals:

    • Section 8 Housing Choice Voucher
    • Public Housing
    • Section 8 Project-Based Rental Assistance
    • USDA rental programs

    Housing providers for the following programs are not required to hear appeals:

    • HOME
    • Shelter Plus Care
    • Supportive Housing for the Elderly and Disabled Persons
    • Housing Opportunity for People with AIDS (HOPWA)
      • These programs either serve homeless persons shelter needs or in the case of HOME and HOPWA, are almost always used together with other federal funding that allows an appeal of denial.
    • Low Income Housing Tax Credit (LIHTC)
      • Although this program does not have an official appeal process, you should inquire with the property manager, if they did not describe the appeal process in the application.

    Request appeal.

    • If denied for HUD or USDA housing programs, you are entitled to a review of the admission decision.
      • This review can also be called a grievance, and informal review, an informal hearing, a hearing or a meeting. In any case, it is usually very informal, must involve a hearing officer who was not the person to make the decision denying assistance and includes the right to present evidence supporting your case.
      • The review process is slightly different for HUD and USDA housing programs.

    For HUD Programs

    • The housing authority or owner has the burden of showing that the applicant's criminal record contains items that show the applicant is likely to pose a danger to the safety of other residents or staff and their enjoyment of the premises.
    • The PHA must make that determination in the framework of its criminal history evaluation criteria, which are available to applicants in the PHAs Administrative Plan.
    • The applicant has the burden of showing either that the criminal records in question are not accurate or that there are mitigating circumstances, such as commitment to rehabilitation, clean probation record, steady employment or involvement in a social services program.
    • You may appear with legal counsel or an advocate, and can also bring others who can speak on your behalf as witnesses regarding progress since the conviction or incarceration.
      • The hearing should be confined strictly to the items included in the notice of denial. Otherwise, there is no way for an applicant to properly prepare for the hearing.
      • For persons who may have difficulty affording legal counsel, there are legal aid offices in every state that help low-income persons. You can search for a legal aid office near you here.

    For USDA Programs

    • The owner must offer to meet informally with the applicant within 10 calendar days to resolve the grievance.
    • The applicant and owner may jointly agree on a single hearing officer, or they may have a three-person panel, with one selected by the applicant, one by the owner and the third chosen by the two other panel members.
    • If the meeting does not resolve the grievance, both the owner and the applicant must submit informal meeting summaries to USDA.
    • If a formal hearing is still desired by the applicant at that time, the applicant has to submit a written request for a formal hearing within 10 calendar days of submitting the informal meeting summary.
    • USDA will select a hearing panel and the formal hearing will be held within 15 days of the hearing panel's selection.

    For Both HUD and USDA Programs

    • Applicants must receive a written decision within a reasonable period of time.
    • The written decision must include the reasons for the decision and describe the evidence used to make that decision.
    • USDA decisions are binding except in limited circumstances, but HUD decisions can be challenged in either state or federal court seeking a more exacting review.