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Landlords May Need to Open Their Doors to Reformed Criminals
by Nadeen Green
Remember the 1980s? It was the decade that gave us leg warmers and shoulder pads, Cabbage Patch dolls and “valley girls,” and Michael Jackson singing “Beat It.” While the slogan for this era may have been “You can have it all,” the reality in the apartment industry was that many landlords opted to “Just Say No” to renting to families with children. In fact, it has been suggested that by the mid-1980s about 76% of all apartments throughout the United States were closed to people with children. Ah, yes, it was the era of swinging singles and all-adult apartment communities. It was not unlawful in most areas to have this business model, and landlords embraced it wholeheartedly, if not also short-sightedly. At the time, landlords could have made sections of their communities open to families, or they could have designated certain floors or buildings or amenities as “family friendly.”
This would have eased the crunch felt around the country and possibly diverted the government from interceding on behalf of so many people being denied housing. But landlords were convinced, as one Atlanta property owner put it at the time, that “there is no way that the government will ever make us have to rent to people with children.” And then in 1988, familial status (i.e. having a child or children under the age of 18 living with you) became a federally protected class.
It is well into the twenty-first century, and there is another business model followed by many landlords: refusing to rent to anyone with a criminal record, more specifically anyone who has ever had a felony conviction. This concept is being embraced wholeheartedly and, once again, the apartment industry may find this shortsighted. With the current industry business model, a large group of people is being denied housing. In fact, Martha Stewart would not be allowed to rent at many apartment communities today. It doesn’t seem to matter that she could likely afford the rent, that she is not a risk to others (annoying, perhaps, but not a risk), and that arguably both her apartment and some of the common elements might look more lovely if she could move in. And it does not seem to matter that she has, under our justice system, paid her debt to society through her imprisonment and now should be able to resume her life.
You might say, “Who cares about felons?” But, understand that this is not the point. The point is that sometimes our industry’s policies and procedures have unintended consequences, even for a group that certainly does not elicit (and in many cases should not elicit) much sympathy. You might also say, “There is no way that the government will ever make us have to rent to felons.” To that I would remind you that people said the same thing about familial status not too long ago.
In fact, some localities are already protecting felons. Such protection has been in place for many years in Madison, Wisconsin, and the Illinois cities of Urbana and Champagne provide that charges may be filed for unlawful discrimination in housing due to a prior arrest record or prior conviction record.
The Department of Housing and Urban Development has established some rules at the federal level as to HUD-funded housing. While some crimes can result in a lifetime ban (producing methamphetamines on the premises or being a registered sex offender, for example), other offenses (such as a drug-related eviction) result in only a three-year ban from such housing. And that ban can be lifted early if someone completes certified drug or alcohol counseling.
While employment laws and housing laws are not the same, there is considerable overlap. Many employers are following a policy in their hiring that is similar to that of landlords’ “no felons” policy, and this is getting legal attention. There is a pending Third Circuit employment case in which a “bright-line policy” against hiring ex-offenders is claimed to have a disparately negative impact on African Americans and Hispanics. As a friend of the court, the NAACP has said in its brief in this matter that “To forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation.” Substitute “housing opportunity” for “gainful employment,” and I cannot help but wonder what the impact of this employment case might be if the plaintiff prevails in this matter.
We can also look to the loosening of some laws surrounding felons and voting as a guideline of what may be to come. Vermont and Maine do not prevent felony offenders from voting; other states, such as Florida, are contemplating restoring felons’ voting rights. Many states, such as Georgia, allow voting after completion of the sentence, with some restrictions as to parole or probation. How ironic that felons may be able to vote, but may not be allowed to rent an apartment in numerous voting districts.
When entire groups of people are denied housing, the government will step in. That happened in 1968 when race, color, religion and national origin became federally protected classes under the Fair Housing Act. In 1974, the federal government believed that women were inappropriately being denied housing, and sex (gender) became protected. As mentioned above, 1988 brought national protection to people with children, as well as people with disabilities. College towns have seen students become protected, military towns have seen military status become protected, and source of income protection often requires landlords to accept those with Section 8 vouchers.
Government should not be making the rules for apartment communities but will do so if it is believed to be necessary. So, before you say, “There is no way that the government will ever make us rent to felons,” it may be wise for our industry to fine tune the felony issue. Perhaps we should look at “best practices” to keep the government from becoming more involved in our industry’s day-to-day operations. Rather than having a blanket denial of housing for every felon, perhaps as an industry we should be drawing up a policy that is narrower and clearly connected to the risk that a felon actually presents as a potential resident.
A good argument can be made about the liability of a landlord for renting to a rapist, arsonist or a person who manufactured drugs. But should embezzlers, scammers and Ms. Stewart truly be denied their housing opportunities forever, even if their crimes were committed decades ago? One could argue that felons were hardly prudent in making the criminal decisions that they made. But should the apartment industry be imprudent in running business in a way that might possibly invite further government involvement and interference? It would be a crime not to consider the repercussions of these shortsighted felon bans.
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Nadeen Green is the senior counsel with For Rent Media Solutions™. The information contained in this article is not to be considered legal advice, and the author and FRMS strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have. Copyright © 2008 by United Advertising Publications, Inc. All rights reserved.