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This article explores the legal risks associated with the use of past criminal convictions in the prospective residential tenant screening process. It attempts to answer the question of whether or not it is legal to request rental applicants to provide information regarding past criminal convictions and, if convictions are discovered, the extent this information can be used to determine their rental eligibility.

In order to adequately research this issue, we needed to consider various bodies of law including federal and state statutes, California case law, and the California State Constitution. It is well settled that residential landlords may establish tenant selection criteria concerning the applicant’s general character and past conduct to protect current residents and neighbors from anyone who may pose a threat to their health and safety. For instance, the Federal Fair Housing Act specifically allows landlords to refuse to rent to anyone who may be a threat to the health and safety of other persons. In addition, California case law has established that landlords have a duty to protect the public and other tenants from foreseeable harm caused by a tenant that could have been prevented. See Rosales v Stewart (1980) 113 CA3d 130, (child killed by a bullet fired from adjoining premises; parents stating cause of action by alleging that perpetrator’s landlord knew of tenant’s dangerous propensities before renewing lease).

Nevertheless, this inquiry is fraught with risk because of the potential for claims of class-based fair housing discrimination, arbitrary decisions, and invasions of privacy. California case law has not specifically addressed the issue of a landlord’s right to acquire criminal background information from applicants so there is no definitive legal precedent to follow for this issue and each situation must be looked at on a case by case basis. The following are some of the legal risks you would potentially face by using prior criminal background as a screening tool.

Invasion of Privacy

California has always been a leading state regarding protecting the rights of privacy of its citizens. In fact, it is one of the few states that contain a separate and distinct right of privacy clause in its constitution. This provision, found in Article I of the California Constitution, protects persons from being required to disclose personal information if they have a reasonable expectation of privacy. The courts have protected California residents’ right to privacy when the invasion of privacy is serious, and countervailing interests do not justify the disclosure. Hill v Nat’l Collegiate Athletic Assoc. (1994) 7 C4th 1.

By using this balancing test, the court would consider whether the intrusive nature of the questions regarding past criminal convictions or behavior is outweighed by the risk of liability associated by renting to someone who poses a health or safety risk. It appears that the relatively slight imposition on the privacy of the applicant by inquiring into his or her criminal background is outweighed by the risk associated with renting to a potentially violent or abusive person.

Illegal Discrimination

State fair housing laws prohibit the application of a uniform and objective standard for selecting the tenants if the standard excludes a disproportionate number of members of a protected class and the landlord does not have a business necessity for using it. This is known as the "disparate impact" or "discriminatory effect" cause of action for fair housing violations of this nature. Under California law, a landlord’s selection criteria that have a discriminatory effect on a protected class of individuals must be necessary to the operation of the business and effectively carry out the significant business needs it is alleged to serve.

Therefore, refusing to rent to any person convicted of any crime would likely be subject to an action based upon discriminatory effect of protected classes, or deemed arbitrary discrimination which is also outlawed in California under the Unruh Civil Rights Act.

As mentioned above, the Federal Fair Housing Act provides that a landlord is not required to rent to applicants whose tenancy would constitute a direct threat to the health or safety of other individuals. Congress intended that a landlord be able to reject an applicant under this provision only if the landlord determines, by objective evidence, that it is sufficiently recent as to be credible and not from unsubstantiated references that the applicant would pose a threat. Therefore, a landlord has the right, and some would say a duty, to reasonably investigate the background of tenant applicants. If the applicant’s criminal record is used only to determine if there were past incidences of bad conduct, running criminal background checks is legal and proper, especially in properties where there is a high crime rate.

Are criminal background checks legal? It appears that they are, so long as the criminal background information is limited to a certain time frame and comes from a reliable source, and is for the purpose of finding past bad conduct which would put other residents or neighbors in a state of potential harm. If you are going to use criminal background checks for screening, I recommend utilizing an established tenant screening company and establish guidelines concerning the nature and age of the past bad conduct.

For fair housing considerations, it is very important to be consistent with all applicants and to ask every applicant for criminal background information or run criminal background checks on every applicant. Deviations from the criteria should only be pursuant to policy changes.

Conviction Vs. Conduct

An important distinction should also be made between denying an application based on a conviction as opposed to denial based upon past bad conduct. Although this distinction may appear to be one of semantics, it is nevertheless an important one to make. People convicted of crimes are generally protected from further "punishment" for their crimes based upon unfair and discriminatory treatment. The only exception is found under fair housing laws that permit landlords to deny an application based on the fact that he or she was convicted of manufacture or distribution of a controlled substance. Therefore, it is important to deny applications based on the past bad conduct that led to the conviction and not the conviction itself, unless the conviction was based on illegal drug sale or manufacture.

One final note, you may consider whether or not to run criminal background checks on a property by property basis, depending upon the crime statistics in the area where each property is situated. The higher the crime rate, the more important it is to screen out applicants who would engage in criminal behavior while residing on your property. 

This article is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances. If you have any questions regarding the above material or any other matter involving landlord-tenant issues, you may contact the Law Offices of Kimball, Tirey and St. John, 800-338-6039.

(Ted Kimball is the founding partner of the statewide law firm of Kimball, Tirey, and St. John, which specializes in real estate law and represents clients throughout California. Any questions regarding the content of this article should be directed to Mr. Kimball at 800-338-6039.)

Comments (37)

  1. I am a single mother of three, living in Oregon.  I was convicted in California for a felony hit and run (for a $50.00 charge for wheel allignment).  It took over  a year for the conviction, making court appearances every month.  I had a "no driving" order, and so I depended on my father to take the day off work, drive me the 5 hour commute, appear, and return.  I was facing two years in prison.  I was pregnant at the time and I was terrified.  My fear grew worse once my daughter was born. 
    I have no other criminal background.  I feel that the justice system is severely corrupt.  I did, after begging my attorney, end up with a pretty fair deal.  All is not well that ends well.
    As it turns out, I cannot rent with this felony.  Are you kidding me?  How long is this mis-hap going to ruin any plans I have in life?  Is this what Americans call justice?  I am American, by the way, and this is infuriating.
    Please respond with any suggestions.  I would greatly appreciate it
     
     

  3. I rent my apartment and my landlord lives in another State. The syndic/assignee of my apartment complex asked me for my identification documents in order to run a background check.

    Is it legal for him to do so? He is not my landlord and I have moved in the apartment since February 2008. Even though he is of the association, he is not my landlord and I feel like this is an invasion of privacy. Can you please help me.

    Thanks!

  4. yes, I think they are. Working as an employee in a background check service, criminal background searches Should be Done by the landlord as part of the screenbing process. This is so to avoid being sued for negligent hiring process since the very main ground for this lawsuit is that hiring or accepting someone who had a past criminal records and then caused greivances or harm the safety of  your other tenants. Moreover, tenant screening is your pro-active way of protecting you assets.

  5. I know employers, landlords and the like go to all the trouble of doing background check or employment background check on their applicants and tenants to check whether or not they have clean background history or not.. But what about the other way around? Shouldn’t the tenants and employee also conduct the same things for their employers and landlords??
    Well i think they definitely should do so as well.. that is for their safety too after all.. ^_^

  9. yes,,there must be an important things that the <a/ href=https://www.identitypi.com/national-criminal-search.php">criminal background check <a/ > is one of the most important thing that its the background  check must insure that it can be the security of the landlord and also her safety…

  14. I think Yes,As what you’ve said, your landlord was moved to the other state and He was assigned by the landlord..I think He  was doing his obligation.And as far as his concerned,he must to know the Background Check or Background Checks of every tenants for the protection or For the safetiness of evryone only.

  15.  This is ridiculous and discriminatory. I think the only felony that should be considered for screening is violent crimes. And even then, the person has done there time, taken there classes and gone through probation(a life changning process). How is it then legal, to deny these people jobs and housing? What are they expected to do, really? It just encourages these people to get back into the same routine. And why? Because they can’t live if they don’t! You need a place to live and work to lead a normal life and this just isn’t possible with even a minor felony. I personally have a felony for selling a very small amount of marijuana. This thing follows me everywhere. It’s been three years since the incident and I’ve completely changed my life and never intend on breaking the law again. But you know what? Employers and land lords couldn’t care less about the circumstances or the individual. They see that felony charge and that’s it. And all this is legal?

  16. 8 years ago the question was asked on the rental form "Have you ever been convicted of a misdemeanor or a feloney?" I answered "No". 7years and 10 months later I had an arguement with my landlord over him running up my electric bill by having the well pump and common use shed power running off my meter. The well supplies water to the house next door and irrigation to other properties I don’t rent. This was never disclosed (and in fact was hidden from me). I only discovered this after calling PGE about a power loss and then found all this out. after the arguement about asking the landlord to compensate me ( which he denied) he told me I had to move out with in 30 days (I lived there & years 10 months ) I have never been late on my rent. He then discovers that I lied on my rental appl. and now says I have 3 days to move out because I lied on my rental Appl. about past crim. history.

  17. My landlord is using the crimnal  background disclosure in retalliation for me arguing about him using my electric power , also running a construction projct off my meter with out my consent. Plus I complained about him coming on my property without notice 3-4 times a week min. to every day, several times a day sometimes up to 8 hours at a time.Even came in my house without my consent. He has run out every tenant next door because of his gross intrusion and invasion of privacy.He got a restraing order against me fraudlently stating that i pushed him when in fact he came at me on my property pointing a finger at me getting closer and closer each time stating he has the right to come on my property and use my power. Called the police , tried to have me arrested 2 days in a row , police stated I could have "him" arrested for assault and trespassing which I regretfully declined.

  18. He found that I have been convicted 18 years ago for threatening a witness and 29 years ago for attempted armed robbery and assault  with a deadly weapon. Yes serrious crimes which I commited. I have changed my life around 9 years ago thru AA and am a completly different person today. yet he is using my past against after 7 years and 10 months of never having a problem with me, never being late on rent. Since his restraing order he has tried to engage me in conversation personaly (which I ignore) and also through the phone.(which I leave to voice mail) He states he is in fear of me yet he comes on  my property still every day and has started a new construction project of replacing fencing to the empty house next door. I have to drive by him in order to get to my house. More than half of the time I come home he drives up  next door, before I can get out of my car ,just to let me know he is there.What do I do ? Not working now , hard to find a new place without a job and refrence. He is using the lieing about the crimnal background as a tool to get me out. Is this legal and Fair? 

  19. i’m also a convicted felon. i havent been in trouble for years. i’m now disabled on disability and i cant rent from apartment complexes because of my past record. ive done my little time and ive paid my debts to society so why am i still being penalized for my past. they send you to jail and make you do all those programs in order to have you change your life  just to release you back on the street where they discriminate against you for making past mistakes? i was’nt a criminal when i caught those charges. i was going through a bad time in life which put me in some bad situations. i’m most definitely on the straight and narrow now because i know how volatile life is now, but how you really gonna know that till you make the mistakes? i think its unfair to discriminate against people who have criminal records. or atleast say hey, if your last conviction was over 5yrs ago then your ok to rent.  im on disability, i cant afford a house. what about when i get old, then what? does our country really care about the disable or the elderly? and they claim that this country is civilized, yeah right!

  20. Normal
    0

    Since you lied on the application this more than likely is legal (Different states can change that).  As a landlord myself this falls under crimes against the estate in which you committed fraud against the estate and is eligible for immediate dismissal.  In some cases landlords do not run criminal background checks if a applicant states no priors however I find this flawed for this very reason.
    The fact I own rental units surrounded by schools (one across the street and the other a block away) it is considered just cause that a criminal background check is run against all tenants.  If I were to rent to a person that had been convicted of lavicious acts against a minor I become liable too. The proximity of the schools also enforces a zero tolerance policy in which a drug conviction while residing there or the finding of illegal narcotics on the property forces me to evict the tenant.  Unfortunately I had to enforce that policy once already in which a tenant was allowing her sister from school to come over and do drugs during a lunch breaks.  It was discovered when maintenance was arriving for a previous scheduled appointment that the tenant said she would not be present for.
    It is not just the tenant that is inconvenienced by a criminal past.  Landlords are forced to comply with so many regulations in order to not be held responsible for tenant’s actions.  I don’t think that a tenant who successfully hides their criminal past then commits another crime while living in the estate should make a landlord responsible but it does.

  21. Clarify:  Unfortunate because of the child who suffered from the forced eviction.  I am happy to not have drugs in my rental units but it is bad that this woman moved in with a lowlife.  I know the mother was using because she was nearly incapacitated when I arrived.

  22. FUCK YOU ALL WHO ISOLATE FELONS.  THERE ARE OVER 1.4 MILLION FELONS IN THE UNITED STATES WITH HIGHER EDUCATION.  YOU PEOPLE WHO SHUN US CAN SUCK IT.  I HOPE THAT THE GUYS WITH THE MASTERS AND PHD WHO ARE HOMELESS BECAUSE YOU DONT GIVE THEM SHELTER FROM BELOW ZERO TEMPERATURES AND THE SAME GUYS WHO CANT WORK AT MCDONALDS OR ANYWHERE FOR THAT MATTER WITH THERE ENORMOUS CREDITIALS……..WELL I JUST HOPE THEY DO MAJOR FELONISTIC THINGS TO YOU…..NEED I SAY WHAT FELONISTIC THINGS ARE IN THE WORLD (RAPE, MURDER, KIDNAPPING, FRAUD, ETC)….LETS PRAY THAT YOUR  FUCKING ATTITUDES WILL CHANGE THEN

  23. I had put down my deposit, packed my belongings, and scheduled the across state move…that’s when I hear that I am "automatically declined" because of my felony conviction. It was a theft and then I resisted arrest which they called assault (they booked it as a robbery 1). It happened nearly 7 years ago when I was 18. Since that day I have become a college graduate (double major), got clean and sober (1.5 yrs), and am engaged to the woman of my dreams. I am so frusterated, I bet that there are 100′s of womanizers at this apt complex that had no problem getting in, and I on the other hand, I am rejected for a theft that happened when I was a dumb kid!?

  24. I posted my real name because I am so angered by this clear stupidity and arrogance of renters. I want to be a property owner. i agree that i dont want drug dealers or users in my homes. So i say DRUG TEST people.  Teens included… But to say "my building is by schools, so I run a check" is NO ISSUE OF YOURS…the SCHOOL protects the school.. the POLICE protect the school. NOT YOU. It is not FOR YOU to say that a man with a felony OR a misdemeanor should NEVER have housing… ALL YOU PEOPLE WHO OWN PROPERTY…ask youself, what do you suppose a person who has done an act, took a conviction because LETS BE TRUTHFUL, the lawyers defending people SUGGEST you do to thwart potential jail time..EVEN IF YOU KNOW YOU WERE RAILROADED OR INNOCENT…lets be completely truthful here…
     
    if you are going to take on the lynch Mob mentality of "you did the crime so what you get is what you get"
     
    THEN YOU WILL GET IT BACK… because the person will end up with nowhere to live  but crime areas…WHY are the areas crime filled? the people…yes…BUT LETS BE TRUTHFUL AND HONEST…the POLICE ALLOW CRIME TO THRIVE IN ONE AREA AND DONT ALLOW IT IN OTHERS! They LITERALLY WILL LET HOOKERS AND PIMPS THRIVE ON ONE END 
    OF THE STREET AND ARREST THEM QUICKLY IF THEY 
    CROSS INTO THE OTHER END OF A MAJOR STREET…
    Crime is not simple as some kind of check. The "we’re by schools" is the stupidest thing i have ever heard..>So ALL TYPES OF CRIME MINOR TO MAJOR have something to do with SCHOOLS? You could be convicted on tax evasion! This is discrimination. We have to let people re-enter society…We cannot simply say… WHENEVER you were convicted, Im going to Discriminate against you..FOREVER… this crap needs to drop off your record, or only be searchable by the public for a few years like credit. and CREDIT is more important that records are..because a man with a felony can PAY YOUR RENT but a man with Hidden Credit from 7+ years back WONT!
     

  25. I have some NEW laws for all the dumb people that agree with this…
    1.
    If a kid gets into a fight at school, Remove him from ALL schools and let the record follow him. A School Record check. So he cannot enter public schools or private. I dont care if it were 2nd grade. he is a danger, for all time, to other kids. We could get the media to back it with all the gang issues at schools. Dont educate him… Let him be homeschooled.
    2.
    If you are a NO CALL NO SHOW on your job and get fired, you should be placed on a NO CALL NO SHOW record, so future employers will know you are not dependable in ANY job and should not hire you. you are a risk. i dont care if you go back to school or not for training.
    3.
    if you leave a contract early, make a SKIP OUT ON A CONTRACT record, so others can deny you, from cell phone contracts, to leases, to cable tv.
     
    4.
    If you fall behind on your bills, Dont have them hit collections, Place them in jail for theft. its a misdemeanor. you got services rendered and then didnt pay. just like running out of a mcdonald with the food. So NO MORE credit collectors…just place a misdemeanor on them, arrest record, and a hefty fine to get out of jail that night for EVER SINGLE BILL that hits collections..And from that day foward…it will be on his "BILL HISTORY RECORD" that all can see, because credit issues can be rectified… we dont want these THIEVES around our children do we?
     
    5.
    Criminal background for all Purchases of homes or cars…
    Hey I dont want a guy who was convicted of weed possession buying a home next to me… And Driving a car by me. What if its DUI? And even though he paid his dues 15 years ago when he was 18, I dont want that DRUNK driving in my neighborhood, so Lets make it so he cant buy a car..USED or NEW..CASH OR CREDIT.
    6.
    Welfare Background check on ALL pleasure purchases…
    After all. why should my tax dollars go to pay for some guy Living it up getting an xbox for his kids at christmas? he should be spending his money on getting off welfare, not buying CDs, DVDs, Or video games. No movie ticket purchaces.
     
    7.
    Unemployment Check on All pleasure purchases
    WHY should the unemployed take part of that check to buy bowling tickets? employers shouldnt have to foot that type of thing..THEY ARE MILKING THE SYSTEM!!!
     
    the funny thing is, republicans would agree to all that i have just said (like rush limbaugh and hannedy)
     
     
     

  27. Somehow i agree on the comment of sherrod, it can be the best way to elliminate those people. But still its not allowable in some countries and thats the problem of implementing this law.
    I suggest that even though it was not applicable on some countries a public records of those childhood or teenage crimes shoud be recorded so that when they run a background check still they will get the past records of this people who commit crimes.
    http://www.goarticles.com/cgi-bin/showa.cgi?C=1620819
    http://www.goarticles.com/cgi-bin/showa.cgi?C=1620815

  28.  i also agree with sherrod… however, in countries that checking the records of a person is not allowed, this could be a big problem.. but if you reside around the united states and even in canada, criminal background check is very legal and can be done online.

  29. LMAO, the funny thing is, Sherrod was being sarcastic you -gits-. NOBODY is free of ALL of those things. People make mistakes. Not everyone gets caught. Why should it only be the people that get caught suffer their entire adult lives for something that was done in one moment? 

  30.  
     
    To answer the question from Gregor about how far back can a tenat screening company go on your criminal record,  the FCRA answers that.
    In section 605
    AND Sherrod the problems (even though you were being sarcastic) with your "laws" are it is not illegal to be a NO SHOW at work , be on welfare or maybe not pay your bills (creditors take the risk when they loan the money) but it is illegal to do drugs, rape or murder someone.  I don’t want them living beside me and if the landlord does his job and screens his tenants, I won’t be.    Oh and BTW, I’m a republican!


    5) Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.

  31. I honestly think that with any type of convicion, there should be the opportunity for the person to explain what happened.  I think the issue here is whether or not to be ‘honest’ on your application. Once you are honest and forthright, and in addition to that information, you havent had anything against you, no convictions, not gotten into trouble for a certain period of time, you should be considered to rent just as much as anybody else is.  If it’s been 15 years, even 10 years, since you committed a crime that was (non violent) but still punnishable by law, and you have led a clean life after that, you should not be discriminated against because you made a mistake some years ago.   What about the one president who admitted to using cocaine?  should he have been impeached?  he still ran the country (poorly, I might add) but nonetheless, he admitted using.   Now, if he had gotten ‘busted’ then it would be on his record.. what? until frickin dooms day?  To err is human, to forgive is divine.  let the first person without sin cast the first stone.  ..  and yes, the person listing all the things to do (shone? was it?) was being sarcastic.. Mildred.. get a clue.
     
     
     
     

  34. I have $45,000 cash in hand ready to purchase a manufactured home in Thurm’s Mobile Home Park in Calverton, NY.  The park is touted as a 55 and over retirement park, yet applications must be sent to First Advantage Safe-Rent for approval.

    To make a long story short, I was denied for no reason because First Advantage never contacted any of my references, yet had the nerve to deny my application because I am receiving social security benefits, which they claim is not an income.  Apparently a retired person needs to get a job before applying to these "retirement" communities.  A search on my credit reports shows that I have a credit score of 650.  The lot rent at Thurm’s is $200 less than what I pay at my current mobile home park.  It would actually be cheaper for me to live there.

    My realtor and the park manager (Patty) are standing behind me on this.  They tell me that nobody has ever been denied an application to Thurm’s.  First Advatange blames Morgan Management (the park’s owner) and Morgan Management blames First Advantage for this determination, so this tells me that neither side wants to take responsibility; an admission of guilt.  An internet search shows numerous lawsuits from scams and ibel that were generated by First Advantage SafeRent.  Who are they to judge anyone?

    Pre-recorded phone announcement (888) 333-2413 instructs one to download dispute forms online at http://www.residentscreen.com, which is not a working website — another scam.  In the meantime, I may lose out on the home of my dreams.

    Your assistance is greatly appreciated.

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