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HUD Seeks to Limit Use of Criminal Background Checks

On April 4, 2016 the United States Department of Housing and Urban Development in light of the United States Supreme Court’s decision in Texas Dep’t of Housing and Community Affairs v. Inclusive Cmtys Project, Inc. issued a new Guidance warning housing providers (including community associations) against the blanket use of a criminal history in making housing decisions. This Guidance must be considered by community associations which as part of their screening of new owners or tenants conduct a criminal background check.

HUD is attempting to protect persons with criminal records from housing discrimination. Such persons are not a protected class under the Fair Housing Act. Blanket prohibitions against persons with felony convictions or screenings based on arrest records which do not take into consideration the facts and circumstances of the subject conduct now pose a high risk of liability under the Fair Housing Act.

Background checks can still be performed, but they should be consistent with the HUD mandate. Rather than relying on a blanket prohibitions, housing providers must prove a substantial, legitimate, nondiscriminatory interest to justify denial of housing based on criminal history.

Community associations which fail to comply with the Guidance could face a lawsuit or HUD proceeding. Associations that require a criminal background check as part of their application procedure should carefully review their current practices and procedures with counsel experienced in this area to make sure that they comply with the Guidance. If those policies are incorporated into their governing documents the documents should be reviewed to see if an amendment is necessary.

If you have any questions in regard to this or if you would like to discuss your specific governing documents and the process for amendment thereto, please do not hesitate to call and we will be happy to assist you.

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