August 1, 2018 | Mary R. Hawk, Esq.
If you are a Community Association Manager, or you are on your Community Association’s Board of Directors, you probably know if your association has the ability, under the governing documents, to approve or deny tenants, occupants, or owners from living in your association. But, did you also know, that the federal Dept. of Housing and Urban Development (HUD) Office of General Counsel issued a “Guidance”, regarding housing providers (like associations) denying tenants or owners in community associations based on their criminal background?
The HUD Guidance gives a stern warning regarding denying a minority from living in your community and explains that minorities are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Therefore, criminal records-based barriers to housing are likely to have what the law deems to be a discriminatory effect on minorities, thereby violating the Fair Housing Act. A housing provider that imposes a blanket prohibition on any person with any felony conviction does not meet the Fair Housing Act.
Instead, HUD states only certain types of convictions can be used for exclusion, but did not elaborate further. HUD also states you MUST consider each applicant on a case-by-case basis, considering (1) the nature of the crime; (2) the severity of the crime; and (3) the recency of the crime (amount of time that has passed since the crime); and how all three of those criteria potentially effect resident or property safety in your particular community. The case-by-case analysis may involve looking into the facts or court files of the actual criminal cases.
The HUD guidance is not “the law,” but it is something someone can use in court as persuasive when claiming a Fair Housing violation. In any such action, a court would look at the HUD guidance to determine whether your exclusion criteria were too broad and, therefore, discriminatory in effect, and illegal.