Residential Real Estate: Criminal Histories in the Tenant Application Process

3 Bedrooms 2 Bath
1,350\sqft
$1,200\month + $1,200\security deposit
No Arrests\Convictions
No evictions on CCAP
Proof of Income and References Required

The housing market is tightening – interest rates are on the rise – and so are rents – all good things for Landlords.  As a consequence, good rentals are getting harder for tenants to find, and Landlords can afford to be picky when it comes time to re-rent their units.

Recently, I saw an ad on Craigslist similar to the one above, and I think it’s important to point out the multiple illegal items it contains.  In the quest to be picky and find the “best” tenant, Landlords can easily get themselves in trouble.

No Arrests!

Not allowed! Remember that phrase, “Innocent until proven guilty?” Therefore, a Landlord can never exclude someone on the basis of an arrest record…because (and the police don’t want you to know this) arrest records don’t mean…anything.

No Convictions!

Sometimes allowed! Convictions mean more than arrests, but not all convictions are created equal.  A Landlord cannot have a blanket policy of excluding all “criminals” or anyone with any type of conviction record.  To properly exclude on the basis of a criminal record, the Landlord’s policy must be nuanced and take into account the facts of each applicant (that’s right, each applicant).

Therefore, my rules of thumb for Landlords are as follows: 1) a policy that excludes on the basis of seriously violent felonies against persons or property & sexual offenses (with no time limitation) will likely pass scrutiny; 2) a policy that excludes on the basis of lessor crimes (like non-violent felonies or other misdemeanors) should be time limited to be enforceable.  In other words, the policy should take into account the time that has lapsed since the crime was committed and what the person was doing afterwards.

Remember, any exclusionary policy must serve a legitimate non-discriminatory purpose, and even if it is not patently discriminatory – if it has a disparate impact on a particular population – discrimination can be found.  Also, be sure to check your local regulations! Cities like Madison and Milwaukee have their own ordinances on this topic that Landlords must also abide by when renting to the general public!

No Evictions on CCAP!

Excluding a tenant on the basis of prior evictions is allowed.  However, it must be an actual eviction – not a case that was filed, showed up on CCAP, and then was dismissed later.  For Landlords in Wisconsin, remember – when a case is filed against someone, it shows up on CCAP.  In order to determine the outcome of the case, you have to do further research.  Excluding someone solely because they had an eviction action filed against them is not allowed.

For more information on this topic, find the very helpful guidance from the General Counsel of US Housing and Urban Development.

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