New Guidance on Excluding Use of Arrest Records in Housing Decisions

On Nov. 2, HUD released Notice PIH 2015-19, “Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions.” The guidance is effective until amended, superseded, or suspended. According to HUD, the purpose of the notice is to inform PHAs and owners of other federally assisted housing that arrest records may not be the basis for denying admission, terminating assistance, or evicting tenants.

The notice reminds PHAs and owners that they are not required to adopt “One Strike” policies that deny admission to anyone with a criminal record or that require automatic eviction any time a household member engages in criminal activity in violation of his or her lease. In fact, depending on the specific housing program, owners have some discretion to make determinations based on the severity of the crime, the impact an eviction may have on other family members, and the options the household may have to mitigate the issue.

It should be noted that HUD makes a distinction between the arrest itself and conduct that led to the arrest. Owners cannot rely solely on arrest records as the basis for denying admission or terminating assistance/evicting tenants. In essence, HUD is reminding owners that there is a difference between being arrested and being convicted and that all those accused of criminal activity should be afforded due process in the judicial system. The notice states:

Although a record of arrest(s) may not be used to deny a housing opportunity, PHAs and owners may make an adverse housing decision based on the conduct underlying an arrest if the conduct indicates that the individual is not suitable for tenancy and the PHA or owner has sufficient evidence other than the fact of arrest that the individual engaged in the conduct. The conduct, not the arrest, is what is relevant for admissions and tenancy decisions.

Federal regulations regarding mandatory screening and/or eviction for drug-related criminal activity and state registered lifetime sex offenders remain in place. This notice did not change those prevailing requirements.