Can Landlords Reject Prospective Tenants With Criminal Histories?

Seattle politicians are considering legislation to limit the ability of landlords to reject potential tenants due to their criminal records.  Under the proposed new law, landlords would be prohibited from posting ads barring people with criminal convictions from applying for housing and from asking prospective tenants about convictions more than two years old, arrests that did not result in convictions, pending charges, juvenile records, or convictions that have been expunged.  However, it is important to note that prospective tenants already have some protections from such conduct under state and federal law even if that proposed Seattle law is not approved.   

The Fair Housing Act and the Washington Law Against Discrimination prohibit discrimination in rental or real estate transactions on the basis of race.  If a rental policy has a disparate impact on a group of people because of their race, it is unlawful.  Since certain groups of people, such as African-Americans, have higher statistical rates of arrests and convictions, blanket bans on tenants with criminal histories make it more difficult for those groups of people to find housing.  This disparate impact renders blanket policies excluding people with criminal histories from rental eligibility illegal. 

Criminal history may still be a valid ground to refuse to rent to a person, but landlords must consider the type and severity of the offense and how long ago the offense occurred.  They must be able to show that policies restricting applicants with criminal convictions serve a substantial, legitimate, nondiscriminatory interest.  In order to do so, landlords must be able to demonstrate that such policies accurately distinguish between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not indicate such a risk.

Community associations may thus not impose a total ban on tenants with criminal histories when they rent property to others.  Associations may also not adopt rules or policies that forbid owners from renting their units to persons with any kind of criminal history. Failure to follow these guidelines could result in substantial monetary penalties and costly litigation. 

UPDATE: Seattle adopted an even more restrictive law regarding disclosure of potential tenants' criminal histories than the proposed law described above.  Under the approved law, landlords who are not leasing a part of their own primary residence may only seek information from potential tenants about adult sex offense convictions.  Such landlords are otherwise prohibited from seeking information about potential tenants' criminal histories. Only landlords who are leasing a part of their own primary residence may still require potential tenants to provide criminal histories.