The Trainer — May 2016
Avoiding FHA Violations During Criminal Background Checks; Complying with Tenant Participation Rules
In this month’s feature, we discussed HUD’s new guidance addressing how refusing to rent or renew a lease based on an individual’s criminal history could violate the Fair Housing Act. We described the three steps used to analyze claims that a housing provider’s use of criminal history to deny housing results violates the Fair Housing Act. And we answered common questions about the new guidance.
In our article about how to comply with the updated tenant participation requirements, we explained what’s considered “protected activity” that sites must allow residents to engage in and what the penalties are for violating residents’ rights under these rules.
Denying applicants housing on the basis of their arrest records can leave you open to a discrimination claim under the Fair Housing Act. True or false?
In which of the following circumstances does HUD require you to deny an applicant housing?
a. The applicant has been arrested for drug possession.
b. The applicant has been convicted of shoplifting.
c. The applicant has been through a drug addiction rehab program.
d. The applicant has been convicted of producing methamphetamine in federally assisted housing.
e. The applicant has been arrested for rape.
f. The applicant must register as a lifetime sex offender.
g. The applicant has filed a restraining order against her spouse.
If you deny housing to an applicant on the basis of his criminal record, you must give him an opportunity to examine the record and dispute its accuracy. True or false?
You must allow residents to meet for tenant organization meetings in site community areas as long as a manager or other owner representative is present. True or false?
While you must allow residents to establish and operate a tenant organization by distributing leaflets in lobbies, common areas, and under residents’ doors, you can forbid them from going door-to-door to conduct surveys or to offer information about the tenant organization. True or false?
ANSWERS & EXPLANATIONS
Correct answer: a
True. The fact that someone was arrested means only that the person was suspected of having committed an offense. Further investigation may have shown that no criminal activity actually occurred, or that the arrested individual did not in fact commit an offense. Consequently, the fact of the arrest itself doesn’t prove that a person engaged in disqualifying criminal activity, poses a threat, or has otherwise violated admission standards or lease terms relating to criminal activity.
Correct answer: d and f
Only in limited and specific cases of criminal activity do HUD regulations require denial of admission or termination of assistance (and in only two cases—where someone has been convicted of producing methamphetamine in federally assisted housing or must register as a lifetime sex offender—is someone permanently barred). In all other cases, PHAs and owners have discretion to consider any mitigating circumstances in making admission and eviction decisions.
Correct answer: a
True. Before a PHA denies admission to the public housing or Section 8 program on the basis of a criminal record, the PHA must notify the applicant of the proposed decision and provide the applicant and the subject of the record with a copy of the criminal record and an opportunity to dispute the accuracy and relevance of that record. In addition, public housing and Section 8 applicants have the right to request an informal review of the decision after their application has been denied.
Correct answer: b
False. Under the tenant participation rules, convening tenant organization meetings on-site in a manner that’s fully independent of management representatives is a “protected activity.” To preserve the independence of tenant organizations, management representatives may not attend such meetings unless invited by the tenant organization to a specific meeting to discuss a specific issue.
Correct answer: b
False. You must permit tenant organizers, including those who aren’t residents at the site, to help residents organize and operate a tenant organization, including by canvassing residents door-to-door. 24 CFR 245.125 defines a “tenant organizer” as a tenant or non-tenant who assists other tenants in establishing and operating a tenant organization, and who isn’t an employee or representative of current or prospective owners, managers, or their agents. You may, however, require that a tenant organizer who doesn’t live at the site be accompanied by a resident, but only if your site has a written policy against canvassing and enforces it consistently.