Rental applicants with convictions for assault-type crimes, particularly sexual assaults, are arguably the least welcome in private rental housing. Checking a prospective tenant’s credit report is one way to find out about a person’s criminal history, though the information on these reports may be outdated or incorrect. Using one of the ubiquitous online “background checking” services is also an option, but these vary considerably in the accuracy of their reporting. Self-reporting is yet another possibility: Rental applications typically ask whether the prospective tenant has ever been convicted of a crime, and, if so, to provide details. Landlords hope that applicants with criminal histories will withdraw their applications upon seeing these questions.
Some landlords turn to the information generated by state implementations of “Megan’s Law” to determine whether applicants are registered sex offenders. This 1996 federal law (42 U.S. Code § 16901 and following) made the FBI responsible for keeping a nationwide database of persons convicted of violent sexual offenses or sexual offenses against children. Each state has written its own version of this law for public use. State laws require specified convicted sexual offenders to register with local law enforcement officials, who keep a database of their addresses.
States vary on how they use and distribute the Megan’s Law database of information on convicted sexual offenders. Whether the state should notify specified individuals (such as people living within a certain radius) and the public’s access rights in general differ widely.
The accuracy of these databases also varies. And some states, including California, limit how landlords may use information found in the Megan’s Law database when checking tenants. California also requires landlords to disclose the existence of the statewide database of registered sexual offenders in every lease and rental agreement, so that tenants will be on notice that the landlord is consulting the database. For details on California law, see the state’s Penal Code 290.46 and following.
The Wisdom—or Not—of Consulting Megan’s Law Databases
Prior to 2016, landlords whose states did not directly address landlords’ use of sex offender databases had little guidance on whether they could use them for purposes of evaluating a prospective tenant. Many practical considerations suggested that consulting the databases could be a bad idea—or, failing to consult could be just as bad.
For example, if a landlord announces that she will use the database to screen, does so, but an inaccurate database results in renting to an offender who commits a crime on her property, she might get sued by the victim. Or, should she decide not to access the database and the applicant harms another tenant, she might be sued by the victim for failing to exercise due care in her screening procedures.
Throwing up their hands in the face of a “damned if you do, damned if you don’t” situation, some legal experts have advised landlords to steer clear of criminal background checks (and sex offender databases) altogether. They suggested that thorough screening using more traditional methods will probably uncover relevant information without the risks.
All of this changed in 2016, when HUD (the Department of Housing and Urban Development) issued a guidance memo that advised landlords to never use arrest histories alone as the basis of a rejection and to carefully weigh the facts surrounding any conviction history before using it as the basis of a rejection.
In brief, landlords should consider only whether the applicant poses a current threat to cotenants, guests, and employees. That analysis takes into consideration the age of the conviction, its nature, and any relevant intervening facts. For example, a recent rape conviction perpetrated on a neighbor’s child would arguably be more relevant to a landlord than a 20-year-old conviction for statutory rape followed by a crime-free life. (Read more about this in HUD Guidance Memo on Landlords’ Use of Arrest and Conviction Records.)
Consequences of Inappropriately Refusing to Rent
In many landlord-tenant laws, lawmakers specify the consequences when landlords fail to follow the rules. For example, failing to give proper notice of a rent hike makes the improper notice null and void, and landlords have to start over. Or, bad faith retention of a security deposit might result in an inability to retain any of it.
But when it comes to improperly rejecting an applicant based on criminal history (including sex offender status), no automatic penalty will attach. Instead, the rejected applicant may complain to a fair housing group or agency, alleging discrimination. If the complaint has merit, the group or agency will involve the landlord in “conciliation,” an attempt to settle the matter through discussion and agreement. Failing that, the landlord could be headed to court, defending a fair housing lawsuit.
Getting Help From a Landlord-Tenant Lawyer
The issues regarding renting to a registered sex offender can be complicated, and the facts of each case are unique, depending on the particular individual and state. This article provides a brief introduction to the subject of landlord access to information on registered sex offenders and their use of this information. For more detailed, specific information on using criminal history, including sex offender status, contact an experienced landlord-tenant lawyer.