In Texas, if a landlord rents to a convicted felon, he or she can be sued for negligence. No, so far it hasn’t happened, but certainly could. Granted the felony has to be one of the Sinister Seven: murder, kidnapping, trafficking in people, sex abuse, sex abuse of a child, promotion of prostitution, or aggravated robbery or burglary. For some reason drug manufacturing isn’t included even though it should be. But now, in the cities of Oakland, California, San Francisco, Seattle, Washington, Portland, Oregon, Chicago, New York, and soon Berkeley, California, you can’t even ask a prospective tenant if he or she has a criminal record, not even one of the Sinister Seven..
Laws that restrict the objective and reasonable qualifications landlords may require make it more difficult to weed out bad tenants and even more perilous for landlords’ good tenants.. The previous perpetrators of any felony are more apt to be bad tenants than a citizen who respects the law and his or her neighbors. They have proved themselves to be no respecters of the law and community.
Landlords can still reject a convicted sex offender or meth cook (drug manufacturer), but only after that applicant the criminal record shows up on a search done after a conditional approval of the application. At that point, the landlord has to tell them in writing that he or she will be checking the sex offender database and looking for a methamphetamine manufacturing conviction. In either, the applicant can be rejected. That is much the same as the “ban the box” laws involving employment.
Even so, landlords can use perfectly legal and effective ways to weed out any and all bad tenants. The first task is to create iron-clad written rental requirements answering such questions as: What is sufficient income? What is an acceptable credit score? What is the source of income? What are acceptable references? And you can probably think of more requirements. But be careful of violating the Fair Housing Act. We’ll look at why in a minute.
In addition, these four requirements are always essential:
1. You must meet each adult applicant who would be moving in. None of this, “I’ll take it home for my husband to sign.” Her husband must show up.
2. You must verify their identity with picture ID.
3. You must be able to verify all information on the application. That means previous addresses, employers, income source, previous landlords, and income.
4. Their income must be sufficient (you decide what percentage goes to rent, not them) and be proved by pay stubs or award letters.
If applicants don’t meet any one of those requirements , reject them out of hand. None of these has anything to do with felony convictions. Rental owners and managers come across such prospective tenants every day. Suppose you can’t verify the length of time at the last address. Your applicant might have made up the address or landlord, or may have exaggerated his or her time at that address. That might have been because prison was the address he or she tried to hide. That’s grounds to reject immediately for lying on the rental application. Likewise with time on the job or source of income, no verification, no renting from you.
An easy way to check previous addresses listed on the rental application is the Social Search. That is a report from the Social Security Administration that lists all previous addresses of that person. Suppose you find that he or she lived at an address not listed on the rental application? The explanation had better be good (an verifiable). What would be most interesting is if one of the previous addresses was the state prison, not listed, of course, on the rental application.
Now suppose all the information is verifiable, income is sufficient, and landlord references are acceptable. You still have an one more important thing to check: the credit report. You decide what credit is acceptable and, of course, you include that on your written rental standards. You can use a FICO score or possibly say that the applicant can have had no bankruptcies in the past seven years, or no collections, paid or unpaid. The requirements will differ by property and the demographics of your current tenants. A felon may have unacceptable credit or no credit at all. That is grounds to reject.
What to be concerned about when renting to an ex-con is, in addition to his or her committing another crime on your property is being sent back to prison.
Length of time out of prison is a good indicator of how someone may have turned his or her life around, too. The first three years out of prison are the most treacherous for an ex-con. The Bureau of Justice Statistics reports that the most common crimes that result in rearrest are property crime (73.8 percent) followed by drug crimes (66.7 percent), public order crimes (62,2 percent), and violent crimes (61.7 percent). But after seven years the rearrest rate for all crimes drops to 2.3 percent.
Arrest rate is one thing, re-incarceration is another. Just because someone is arrested doesn’t mean he or she is going back to prison. CBS News reported, though, “About 43 percent of prisoners who were let out in 2004 were sent back to prison by 2007, either for a new crime or violating the conditions of their release.”
Even so for that 57 percent, an arrest can be as inconvenient for a landlord as a re-incarceration. An arrest means the police may keep that person in jail awaiting trial. In the meantime, he or she can’t go to work and will lose his or her job. Even if your tenant is out on bail, the company may fire him or her. That means no rent next month and an eviction.
In states where it is permissible to reject for a criminal record, landlords need to be cautious about running afoul of the Fair Housing Act since minorities comprise the majority of felons, The NAACP reports that “Though African Americans and Hispanics make up approximately 32% of the US population, they comprised 56% of all incarcerated people in 2015.” Tthe Fair Housing enforcers will look carefully at who a landlord accepts and rejects with an eye to looking at illegal discrimination. That’s why completely objective and reasonable rental standards are essential. What is “reasonable”? That’s the $64,000 question and subject to interpretation by the Fair Housing folks. Ask your lawyer.
Landlords have a duty to their good tenants to provide a safe and habitable home and a duty to themselves to protect their investments. Careful screening of applicants to weed out bad citizens is essential for both duties.
By Robert L. Cain
