Landlords must weigh convictions against tenant safety
Robert Griswold
Inman News
Q: After consulting your book, "Property Management for Dummies" and speaking with an attorney, I found a discrepancy in opinion involving tenant applicants with criminal records. Your book said that I can deny a rental application submitted by a convicted criminal in order to protect my current tenants from having their items stolen. However, the attorney I spoke with said a landlord can deny an application only if it’s based on bad credit and income history. Has the law changed in the past few years?
A: I think I can clear up what you see as a potential discrepancy. As is so often the case with tenant-landlord legal issues, there are subtle interpretation differences, and slightly different facts can change the answer. While I’m not an attorney, as a property manager for more than 30 years I believe I see what the attorney is suggesting and why.
There is no real substantive difference in the advice, as the attorney is also saying that you have the ability to deny the applicant. The difference is that the attorney says you can deny an applicant based not on the criminal history, but based on bad credit or income history. He presumes the applicant won’t meet your tenant-screening minimum requirements for income and credit history. But that is not necessarily always true.
I have seen many criminals who would easily (and do) qualify for rental housing. They have good cash flow and may even have excellent credit. While I respect the attorney’s answer, I think the attorney is being presumptuous and possibly reading into the question that the applicant is a former drug user and would possibly be covered under the Americans with Disabilities Act (ADA) claiming that past drug use is a disability.
It has been my experience that prospective rental applicants with current or very recent drug-use convictions would typically not be protected under the ADA. But you should seek more information and ask your legal adviser, as this can be a tricky area for landlords who are trying to protect their other tenants and avoid violating the rights of the prospective applicant.
There are some limited exceptions for former drug use, and I think that is why the attorney is suggesting you look at other aspects of the application to find a legitimate and legal basis to deny the application.
However, I think the attorney overlooked a key fact: A rental applicant who’s on probation for stealing is not a protected category under ADA or any other provision of the law. A history of criminal convictions would be a reasonable basis for the denial of a rental application as long as you have a consistent policy for all such applicants. Notice that I said "criminal convictions," not just an arrest.
You should also look at the type of criminal conviction and when it occurred. A minor violation of a law many years ago might not have any relevance now and would not reasonably be considered a risk to your tenants. When facing prospective rental applicants with criminal convictions, you are smart to seek additional information and contact your legal adviser before making a decision.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and "Property Management Kit for Dummies" and co-author of "Real Estate Investing for Dummies."
E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.
Questions should be brief and cannot be answered individually.
***
What’s your opinion? Leave your comments below or send a letter to the editor. To contact the writer, click the byline at the top of the story.
