Can you Deny a Prospective Tenant Who Has a Criminal History or Is a Sex Offender?

When you evaluate a tenant's application for an apartment, you should ask them to explain any criminal history. You can verify what they say with iCORI. You should also check for their name on the sex offender registry. Can you deny a tenant with this history on their record?

Screenshot compilation of the MA sex offender search page.

People with Criminal History, Including Sex Offenders, Need Homes, Too.

One of our attorneys at MassLandlords told us of a case where a tenant was denied a lease based on their criminal history. In that situation, the landlord was found to be unfairly discriminating.

Usually the law has a standard of reasonableness. This is especially true in Massachusetts. Is it reasonable to deny a sex offender an apartment if there's very low likelihood of them harming other tenants? Maybe not. If an otherwise qualified sex offender is denied an apartment, they might be able to show that they did not represent a risk to other tenants.

In that case, you might expect a discrimination lawsuit. We couldn't tell you who would win. The denied tenant would seem to have both standing and a real claim of injury.

Are Criminals, Including Sex Offenders, a Protected Class?

No, people with criminal history, including sex offenders, are not part of a protected class on that basis alone.

This means (in theory) you should be able to write an absolute disqualifier into your screening process. However, in 2016, the Department of Housing and Urban Development (HUD) issued new guidance that prohibits blanket bans based on criminal history. You can have qualifiers (no sex offenses in the last five years, no violent convictions, etc.) but you must evaluate each criminal record separately.  Our applicant qualifier disqualifies applicants with a conviction for illegal drugs, violent crime or Massachusetts Class 2 or Class 3 sex offense in the last five years. We believe these disqualifiers are a better starting point than previous versions of our applicant qualifier.

No matter what you decide, you will be subject to reasonableness. And if you write it in, it obligates you to check.

Be very careful. In Massachusetts it's also unlawful to discriminate on the basis of an arrest record. This is different from a conviction. Remember "innocent until proven guilty"?  In the 75 largest counties in the country, nearly one-third of the felony arrests did not result in a conviction because the charges against the defendants were dismissed. This ratio grows larger yet if you count acquittals.

Rather than asking about arrests, you want your application to ask, "Have you ever been convicted of a felony?" Then, you want to evaluate each record individually. Our rental application uses this wording.

But What Kind of Sex Offense Was It?

Would you be surprised to learn that some people are labeled sex offenders for public urination, incest and prostitution? It will depend on the jurisdiction.  In Massachusetts, the following actions will get you labeled as a sex offender (see here for the actual law):

• Indecent assault on a child;
• Indecent assault on a mentally handicapped person;
• Statutory rape;
• Rape;
• Assault or kidnapping with intent to rape;
• Inducing a child into prostitution;
• Being a sex trafficker;
• Soliciting a minor over the Internet, phone or text message to prostitute themselves;
• Drugging someone for sex;
• Open and gross lewdness twice;
• Incest;
• Giving pornographic material to a minor;
• Producing or owning child pornography; and
• Any sex offense so labeled in another jurisdiction.

Whatever your moral judgment of these acts, a prospective tenant could argue that their particular offense isn't a show-stopper. They might argue that they're a very low likelihood of harming any other tenants. For instance, someone who is on the sex offender list for urinating on the side of a building while intoxicated is not likely to pose harm to your other tenants. On the other hand, if your building is full of children, someone with a sex offense conviction for acts against a child may not be allowed to live there anyway, as a condition of their parole.

If you deny on the basis of past convictions, including sex offenses, you want to make sure that your applications represent a paper trail and that your limits are reasonable. You should be able to show the same reasonable, consistent behavior for all prospective tenants.

Implications for Renting to People with Known Criminal History, Including Sex Offenders

If you rent to someone with a conviction record, including a sex offender, you potentially create an additional liability for yourself should anything happen.

For instance, suppose you rent to someone with a known conviction for a violent crime, and there are early warning signs of bad behavior on the premises. Then that person commits a crime on the premises and causes another tenant harm or loss. The injured tenant might claim you as landlord were negligent and should have acted sooner. "You knew the tenant had a criminal history. Why didn't you do X, Y or Z after the early warning signs?"

If you rent to a known sex offender and this person actually harms another resident, your judgment would most likely be questioned. You might be sued for negligence in your screening process.

Another thing to consider:  the risk with sex offenders and known ex-convicts depends on your building's particulars. It depends on how likely your tenants are to come into contact with one another. It depends on whether your other tenants are possible targets for the prospective tenant in a relapse.

Suppose, for instance, that the prospective tenant has a history of abusing minors. Suppose further that your building has a yard frequently played in by minors. In this case, your decision to rent to this prospective tenant would be far less defensible than it would be in another building with no common areas or no minors. The same prospective tenant may be a better fit for some buildings and circumstances than others.

Be careful, because the opposite situation is even less clear. Suppose, for instance, a family with children applies for tenancy in a building where a current renter has a history of abusing minors. If you tell the applicants about the current renter's history, it would likely be a discouragement to them. Would this discouragement constitute unlawful steering, and discrimination on the basis of family status? We aren't aware of case law on the subject. If you say nothing, could you later be found negligent? Again, we are not aware of case law. If you know the answer, please inform us at hello@masslandlords.net.

Summary

People with criminal convictions are not a protected class, but may still sue you for unreasonable or inconsistent treatment during applications. Make reasonable policies, write them down and be consistent.

Make sure you're not denying applications on the basis of arrests or putting a blanket ban on anyone with a prior conviction.

If renting to ex-convicts or sex offenders, try to learn the particulars. Not all past offenses represent the same risks to your other tenants.

This article was contributed by a landlord and not an attorney. If you're unsure what to do, don't take our word for it, ask a real attorney.