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 these black marks on their record?
Ex-Cons and Sex Offenders Need a Home, Too
One of our attorneys at MassLandlords.net told us of a case where a tenant was denied based on criminal history, and 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 and Sex Offenders a Protected Class?
No, they aren't. This means you should be able to write an absolute disqualifier into your screening process. Our applicant qualifier has such absolute disqualifiers. But in all cases, you will be subject to reasonableness. And if you write it in, it obligates you to check.
Is it reasonable for a small time landlord to absolutely disqualify on the basis of past convictions? Probably, since a small time landlord doesn't have the resources to deal with behavioral problems, evictions, etc. Is it reasonable for the owner of 10,000 units to do so? Perhaps not.
Be very careful. In Massachusetts it's 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?" 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
- Assault or kidnapping with intent to rape
- Being a child's pimp
- Being a sex slave trafficker
- Soliciting a minor over the Internet, phone, or text message to prostitute themselves
- Drugging someone for sex
- Open and gross lewdness twice
- Giving pornographic material to a minor
- Producing or owning child pornography
- 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.
If you deny on the basis of past convictions or sex offenses, you want to make sure that your applications represent a paper trail and are reasonable. You should be able to show the same reasonable, consistent behavior for all prospective tenants.
Implications for Renting to Known Convicts, Sex Offenders
If you rent to a known convict or sex offender, you potentially create an additional liability for yourself should anything happen. For instance, suppose you rent to a known convict and there are early warning signs of bad behavior on the premises. Then the convict 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 was a convict. 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 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.
Convicts and sex offenders 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. Arrests are not convictions.
If renting to 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.