During 2013, there were 1,055 persons on parole in Oakland. Landlords have long denied housing to persons with a criminal record, and often they check to see if a person has a criminal history when running a credit and background check on them, when they apply for a rental housing unit.
According to HUD, as many as 100 million U.S. adults, or around one-third of the population have a criminal record of some sort that makes it difficult for many formerly incarcerated individuals to secure housing, including public and other federally-subsidized housing because of their criminal record.
The days of landlords discriminating against persons with a criminal record may be coming to an end with the new Department of Housing and Urban Development (HUD) guidelines. The guidelines protect persons with a criminal record from discrimination by landlords, under the protection of the Fair Housing Act.
Convicted felons have as much of a right to rental housing as anyone else under the new HUD guidelines.
Already the California Apartment Association is sniveling about the new HUD guidelines, and landlords are already scrambling to have renters sign a new lease that claim the landlord is not liable or responsible for any criminal activities that may occur at their rental properties.
During the last week of March, the East Bay Asian Local Development Corporation (EBALDC) threatened tenants with eviction (30 Day Notice) at one of their so-called affordable housing projects in East Oakland if they declined to sign a new lease. The tenants in the 21 unit residential building were being threatened if they failed to sign a new lease that was materially different from their old lease. Under Measure EE, just cause eviction protection ordinance, it is legal for renters to refuse to sign a new lease that is materially different than the old lease.
In the new lease tenants were pressured to sign, under the section called Security it states, “Resident shall agree that Owner / Agent shall not provide and shall have no responsibility to provide any security services for the Resident. Resident shall look solely to the local enforcement authority for security. Resident shall agree that protection against criminal action is not within the power of Owner / Agent, and even if from time to time Owner / Agent provides security services, it cannot be relied upon by Resident and shall not constitute a waiver of, or in any manner modify the above agreement. Owner / Agent shall not be liable for failure to provide adequate security services, or for criminal or wrongful actions by others against Resident, and/or their visitors.”
Not so fast, says Nolo.com, “Landlords in most states have some degree of legal responsibility to protect their tenants from would-be assailants and thieves and from the criminal acts of fellow tenants. Landlords must also protect the neighborhood from their tenants' illegal activities, such as drug dealing. These legal duties stem from building codes, ordinances, statutes, and, most frequently, court decisions.”
“Rental property owners are being sued with increasing frequency by tenants injured by criminals, with settlements and jury awards typically ranging from $100,000 to $1 million. Landlords are especially likely to be held liable when a crime occurs on property where a similar assault or other crime occurred in the past.”
The California Apartment Association which has been stalking the tenants’ rights movement is opposed to the new HUD guidelines and stated, “While ex-offenders are not a protected class under the Fair Housing Act, and HUD has stated that in some cases it might be legal and reasonable to turn them down for housing, the guidelines make it nearly impossible to do so.”
“Specifically, a criminal background screening policy that has a discriminatory effect is unlawful unless the landlord can prove “it is necessary to serve a substantial, legitimate, non-discriminatory interest of the housing provider.” Even then, if a plaintiff can prove that another, less discriminatory purpose would serve the same interest, the screening policy violates the law.”
“The guidelines specifically state that policies denying housing based on arrest records are indefensible. With respect to policies based on convictions, the guidelines state that a blanket prohibition on applicants with conviction records, ”no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then,” are also illegal.”
In a recent struggle to protect renters, during September 2015, tenant activists in San Jose opposed a proposed so-called crime-free multi housing program that would make it easier to evict their neighbors from their communities.
In Oakland, the battle over HUD’s one-strike policy was fought against in the U.S. Supreme Court by Anne Omura, and the Eviction Defense Center.
In 2004, Human Rights Watch condemned the U.S. government for excluding tens of thousands of needy people with criminal records from residing in federally subsidized housing.
It is long overdue that HUD has finally provided some guidelines that make it illegal to discriminate against people with a criminal record.