Public Housing Agencies (PHAs) and other affordable housing providers that receive federal funds have wide freedom when using criminal records as part of their application and admissions process. PHAs have a number of compelling reasons to look at criminal records. They must make sure that their residents feel safe in their homes. While PHAs 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 housing authority’s need to provide a safe living environment with the Fair Housing Act's nondiscrimination requirements. If a PHA uses criminal history as part of its application review, HUD requires an analysis of whether its policy has a discriminatory effect. This includes whether it is necessary to achieve a substantial, legitimate, nondiscriminatory interest, and whether there is a less discriminatory alternative. These policies can be found in the PHA’s Administrative Plan. This document can often be found on a housing authority’s website. If it is not, contact the housing office and ask for help on how to view the document.
When PHAs use criminal records in the application review, they must consider each application on a case-by-case basis.The housing authority cannot deny admission only on the basis of arrests, because an arrest only means that someone is suspected of criminal activity and it has not yet been proven. Convictions, however, assume 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. An applicant with an assault conviction in the last year would be evaluated differently than one with a shoplifting conviction ten years before. They 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.
By federal statute, some HUD programs have a ban for persons on a state’s sex offender registry, and those who produced methamphetamine on public housing property. These programs include Public Housing, Section 8 Project-Based Rental Assistance (PBRA) and Section 8 Housing Choice Vouchers (HCV). Otherwise, there are no federal requirements to bar applicants with criminal records from living in HUD-funded housing. Local PHAs and housing providers receiving HUD funds have discretion to enact their own restrictions based on criminal history, as long as they meet the requirements outlined in the 2016 guidance.
Housing authorities 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 the right to request a reasonable accommodation and to present evidence of mitigating circumstances such as participation in drug treatment, counseling or educational programs. You must contact the PHA within 14 days to challenge a denial of your housing application. If you have trouble meeting this deadline due to a disability, the PHA should provide a reasonable accommodation if needed. The PHA’s notice of denial should also include referrals to legal services or legal advocates that can help you with your appeal. This National Housing Law Project page was written for housing administrators, but could help an applicant understand the screening process.
There are a number of federal low-income housing programs that do not have any restrictions based on criminal records. These include the Low-Income Housing Tax Credit (LIHTC) program and rental housing programs administered by the U.S. Department of Agriculture's (USDA) Rural Development (RD) mission area.