Housing Opportunities for People Reentering

1. Federal statutes place restrictions on the admission of individuals with a criminal record to federally assisted housing. In the context of screening individuals with a criminal record, federally assisted housing refers to public housing, the voucher program, project-based Section 8, Section 8 Moderate Rehab, Section 202, 811, 221(d)(3), 236, 514 and 515. See 42 U.S.C. § 13664. The rules below do not apply to Low-Income Housing Tax Credit properties, Shelter Plus Care, the Supportive Housing Program, or Housing Opportunities for People with Aids.
2. 42 U.S.C. § 1437n(f) – Permanent ban on admission if convicted of manufacturing or producing methamphetamines on the premises of federally assisted housing. *Note – The ban is limited to public housing, the voucher program, and Section 8 Moderate Rehab.
3. 42 U.S.C. § 13663 – Permanent ban on admission if subject to a lifetime registration requirement under a state sex offender registration law.
4. 42 U.S.C. § 13661(a) – Three-year ban on admission if evicted from federally assisted housing for drug related activity unless completed a drug rehabilitation program approved by the PHA.
5. 42 U.S.C. § 13661(c) – Public housing authority or private owner has discretion to individuals who, within a reasonable period before admission, engaged in drug-related criminal activity, violent criminal activity, or criminal activity that would “threaten the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or public housing agency employees.”

1. Public housing – 24 C.F.R. §§ 960.203 (tenant selection criteria), 960.204 (denial of admission for criminal activity or drug abuse), 960.208 (notification of denial, right to informal hearing).
2. Section 8 voucher program – 24 C.F.R. §§ 982.552 (denial of admission), 982.553 (denial of admission for criminal activity or alcohol abuse), 982.554 (notification of denial, right to informal hearing).
3. Project-based Section 8, Section 202, 811, 221(d)(3), and 236 – 24 C.F.R. §§ 5.852 (discretion of owner), 5.854 (mandatory denial of admission for criminal activity), 5.855 (permissive denial of admission for criminal activity), 5.856 (sex offenders), 5.901-5.905 (access to criminal records and information).
4. Section 8 Moderate Rehabilitation – 24 C.F.R. § 882.518 (denial of admission for criminal activity or alcohol abuse).

On April 4, 2016, HUD’s Office of General Counsel released guidance on the Application of Fair Housing Act Standards to the use of Criminal Records by Providers of Housing and Real Estate –Related Transactions.  The guidance applies to both private and subsidized housing and addresses how the discriminatory effects and disparate treatment theories may apply in cases where a housing provider refuses to rent to an individual due to his or her criminal history. While having a criminal record is not a protected characteristic under the FHA, the notice explains that “criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national original over another” or if a housing provider “treats individuals with comparable criminal history differently because of their race, national origin, or other protected characteristic.” National data shows that racial and ethnic minorities face disproportionately high rates of arrest and incarceration. In particular, blanket bans on housing for people with criminal records may have a disparate impact on African Americans and Hispanics. Housing providers that choose to exclude people with criminal records must therefore show that the policy serves a legitimate public interest. The notice is an important step towards expanding housing opportunities for people who have come in contact with the criminal justice system.

In November 2015, HUD issued new guidance regarding the use of arrests in housing decisions within the federally subsidized housing programs. HUD has issued two notices with the same content—one addressed to housing authorities and Section 8 Housing Choice Voucher landlords (Notice PIH 2015-19) and the other notice addressed to owners of multifamily properties subsidized through HUD programs (Notice H 2015-10). These notices inform HUD housing providers that arrest records alone cannot serve as the basis for an eviction, termination, or denial of admission for HUD’s public housing and subsidized housing programs. In HUD’s view, an arrest is insufficient to demonstrate involvement in criminal activity. However, the notices explain that the underlying conduct for an arrest can be the basis of an adverse housing decision if there exists “sufficient evidence” that someone engaged in the criminal activity at issue. Therefore, an arrest record can prompt further inquiry into an individual’s conduct, but cannot serve as the sole basis for an adverse housing action. Housing providers can use witness statements, police reports, and “[r]eliable evidence of a conviction” to demonstrate that criminal activity has taken place. The guidance notes that screening, termination, and eviction policies must comply with the FHA and civil rights laws. Additionally, the guidance clarifies that PHAs are not required to adopt “one-strike” policies and discusses best practices in screening tenants for criminal history. HUD published FAQs related to the notice. The FAQs clarify HUD’s guidance on the use of arrest records in housing decisions and are intended as a supplemental resource.

HUD’s Office of General Counsel issued guidance that examines the enforcement of nuisance ordinances and crime-free housing ordinances using a Fair Housing Act analysis. Specifically, the guidance employs both the disparate treatment and discriminatory effects methods of proof under the FHA to analyze such ordinances, with a primary focus on how such ordinances may impact survivors of domestic violence. Note, however, that the standards articulated in the guidance “apply equally to victims of domestic violence and other crimes and to those in need of emergency services who may be subjected to discrimination…due to the operation of these ordinances.” HUD stated its intent to issue subsequent guidance about the relationship between such ordinances and disability discrimination.

Former HUD Secretary Shaun Donovan has sent two letters to housing providers recognizing the pressing housing needs of individuals who have been incarcerated and urging the adoption of flexible admissions policies that enable these individuals to secure housing and rejoin their families. The first letter was sent on June 17, 2011 to Public Housing Authorities (PHAs). By reminding PHAs of their considerable discretion in admissions, the letter provides important clarification, as many PHAs have overly restrictive policies that exclude nearly anyone with a criminal record. Before this letter was issued, National People’s Action (NPA), with NHLP’s support, sent a letter to Secretary Donovan, encouraging HUD to offer new guidance to PHAs. The June 17th letter partially adopted two of the recommendations to explain and clarify current law, but HUD failed to make any of the other proposed changes. While Secretary Donovan’s letter is an important step forward in eliminating barriers that prevent ex-offenders from re-entering society, much work remains. On March 14, 2012, Secretary Donovan and Acting FHA Commissioner Carol Galante sent a letter to owners and agents of HUD-assisted properties emphasizing the importance of providing stable housing to formerly incarcerated individuals. This letter asks HUD-assisted property owners to allow ex-offenders to rejoin the community to the extent that a balance between reuniting ex-offenders with their families and ensuring the safety of all residents can be maintained.

NHLP and the Housing Justice Network submitted comments in response to the Federal Trade Commission’s (FTC) and Consumer Financial Protection Bureau’s (CFPB) joint request for public comment on how background screening may shut renters out of housing. NHLP and numerous members of the Housing Justice Network collaborated to prepare thorough responses to the request for information, detailing the way various challenges rental housing seekers face with rental application fees and screening processes, inscrutable background screening algorithms, the problematic use of eviction records and criminal history, and various forms of abuse and discrimination. Read the NHLP and Housing Justice Network comments here.

1. NHLP, along with the Sargent Shriver National Center on Poverty Law, hosted a national webinar on May 25, 2016, “Advocacy Strategies for Protecting the Fair Housing Rights of People with Criminal Records.” The presentation focused on advocacy strategies for protecting the fair housing rights of people with criminal records. Panelists performed an in-depth analysis of HUD’s recent guidance on the role of criminal records in admissions policies and offered tools for advocates to revise local housing policy and procedures.
2. NHLP and Western Center on Law and Poverty hosted a webinar on September 26, 2016, “Reasonable Accommodation in Criminal Activity Cases.” The webinar provided an overview of how fair housing laws can be used to protect applicants and tenants with disabilities from unlawful adverse actions based on criminal activity.