Log In   ·   Become A Member

HUD Speaks Out On Denying Housing To Persons With Criminal Records

John A. Viteritti

HUD delineates the three steps used to analyze claims that a housing provider's use of criminal history to deny housing opportunities results in a discriminatory effect in violation of the Fair Housing Act. (Photo: www.facebook.com)

New York State and the federal government have recently taken action with respect to discrimination in the sale and renting of housing. In this article we will address the role of the federal government as a result of a memorandum issued by the U.S. Department of Housing and Urban Development (HUD) issued on April 4, 2016.

A Supreme Court ruling on June 25, 2015 provides context for the action taken by HUD. That decision found that disparate impact on protected classes continues to be a violation of the 1968 Fair Housing Act. On March 23, 2016, a U.S. Court of Appeals upheld a lower court's decision against the Incorporated Village of Garden City based on disparate impact. So what is disparate impact as defined in the new HUD regulation? Their memorandum states: "The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics." It goes on to say, "Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics." The memorandum further states, "While the Fair Housing Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overboard criminal history -related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified." It states, for example, "factors as the type of crime and the length of the time since conviction," must be considered. "Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden," it asserts.

HUD delineates the three steps used to analyze claims that a housing provider's use of criminal history to deny housing opportunities results in a discriminatory effect in violation of the Fair Housing Act. They are as follows: Whether the criminal history policy or practice has a discriminatory effect. Whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Whether there is a less discriminatory alternative. The memorandum elaborates on each of these three categories. It also provides statutory exemption from liability. It states: "The Fair Housing Act provides that the Act does not prohibit, conduct against a person because such person has been convicted --- of the illegal manufacture or distribution of a controlled substance as defined in the Controlled Substance Act." It adds, as clarification, it only applies to the person's "conviction" for these acts, "not arrests."

As a final statement, HUD cautions, "Selective use of criminal history as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics violates the Act."

A thorough reading of the HUD ten-page memorandum should convince anyone involved in the rental of properties first consult an attorney before proceeding.

Since July 1, 2008, the New York Department of State requires at least three hours of training in Fair Housing Laws every two years for real estate license renewal. The subject is also included in the 75-hour initial salesperson licensing course. The laws are complex, different with respect to Federal, State and Local laws, and constantly being broadened and redefined, either by statute, case law, or regulatory agencies such as HUD, the New York State Division of Human rights, and the Suffolk County Human Rights Commission.

In a subsequent article, we will discuss two new additions to New York State Fair Housing Laws.

John is a St. John's University graduate, licensed Real Estate Broker, DOS Certified Instructor, and real estate consultant. He previously taught at NYU, LIU, and The Cook Maran Real Estate School, which he helped found. www.johnaviteritti.com

Be the first to comment on this article. (Just fill out the form below)

Submit Your Comment

Please note, you are not currently logged in. Your comment will be submitted as a guest.
To submit your comment as a member, please click here.
Your Name:
* Comments will be reviewed and posted in a timely fashion
* All fields are required
What color is a firetruck?
(For spam prevention, thanks)
Southampton Masonry-Visiting the Southampton or the Wainscott locations is an exciting experience.
Southampton Masonry has been serving Long Island's masonry and tile needs since 1975. Delivering quality products from Manhattan to Montauk for over three decades. The company's continued success is due primarily to their number one priority: customer satisfaction, with a promise of prompt and courteous service from the professional, knowledgeable staff. Southampton Masonry has the largest inventory on the east end. As direct importers they can offer a large variety of the finest quality products at the most competitive pricing for both your interior and exterior projects.

Southrifty Drug 54 Jagger Lane, Southampton Village
Southrifty Drug is a small, neighborhood pharmacy with limited shelf space, and we have to be very selective about which over-the-counter items we carry. As a result you'll find a no nonsense concentration of very effective, high quality and useful products on our shelves. In this new section, we feature a number of these products that we feel are especially worthy of your consideration.

Burner Law Group, P.C.
Burner Law Group, P.C. are full service elder law attorneys concentrating in the areas of Estate Planning, Trust and Estate Administration and Litigation, Special Needs Planning, Guardianship and Elder Law. Offices in East Setauket‚ NY, Westhampton Beach, NY, and New York, NY.

New York Title Abstract Services, Inc.
We are a title insurance services company dedicated to promptly delivering fully compliant and accurate reports, and title insurance, for residential and commercial real estate throughout New York State. Headquartered in the Hamptons, our professional team has extensive real estate experience and understands the business from all sides including title insurance, legal, sales, governmental, banking, and lending regulations.

Aimee Fitzpatrick Martin, Licensed Associate Real Estate Broker
Considered a West of the Shinnecock Canal expert with a 5-star Zillow ranking, Aimee specializes in the luxury and waterfront markets in Quogue, Westhampton Beach, Remsenburg, East Quogue and Hampton Bays. With exceptional communication skills and a buttoned-up approach to every deal, she is highly skilled in the art of the negotiation process. Understanding the nuances of buying and selling waterfront homes, especially on Dune Road, is a specialty.