A landlord can refuse to rent to someone with a criminal record, but only within limits that federal law sets carefully. A blanket policy that rejects every applicant with any conviction is almost certainly illegal, even though “criminal history” is not itself a protected class. What the Fair Housing Act polices is how criminal records are used: a screening rule that disproportionately shuts out people of a particular race or national origin, and that the landlord cannot justify as truly necessary for safety, counts as discrimination. Individual, recent, safety-relevant convictions are a different matter, and landlords are generally free to weigh those, as long as they follow the process.
Why a Blanket Ban Fails
The Fair Housing Act prohibits discrimination in housing based on race, color, religion, sex, familial status, national origin, and disability.1Office of the Law Revision Counsel. 42 USC 3604 – Discrimination in the Sale or Rental of Housing Criminal history is not on the list. It reaches criminal-record screening through the disparate impact doctrine: a facially neutral rule that hits a protected group harder than others can still be unlawful.
HUD uses a three-step test. The person challenging the policy first has to show it produces a disproportionate effect on a protected group. The landlord then has to prove the policy is necessary to a substantial, legitimate, nondiscriminatory interest, such as resident safety, and speculation won’t do. Even if the landlord clears that bar, the challenger can still win by pointing to a less restrictive alternative that would serve the same safety interest with less discriminatory effect.2Congress.gov. Disparate Impact Claims Under the Fair Housing Act
A policy that rejects anyone with any conviction, no matter what happened or when, is the classic failure at step two. HUD’s own guidance says a blanket prohibition “will be unable to meet this burden” because it ignores the nature, severity, and recency of the underlying conduct.3HUD Office of General Counsel. Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records What survives review is a policy that distinguishes between offenses and time frames and can be tied back to a genuine safety concern.
The One Explicit Exception
The Fair Housing Act carves out a single explicit exception on criminal records. It does not prohibit a landlord from refusing to rent to someone convicted of illegally manufacturing or distributing a controlled substance.4Office of the Law Revision Counsel. 42 USC 3607 – Religious Organization or Private Club Exemption The exemption is narrow. It covers manufacturing and distribution convictions only, not simple possession, and it doesn’t shield a landlord who invokes it as a cover for intentional racial discrimination.
Marijuana sits inside a trap here. The exemption runs on federal law, where marijuana remains a controlled substance regardless of state legalization. HUD has said it is “statutorily required” to deny federally assisted housing to people who use marijuana even in states that permit it. Private landlords can technically deny based on a marijuana manufacturing or distribution conviction under the federal exemption, though several bills in Congress have attempted to change that rule.
Arrests Are Not Convictions
One line is bright, and crossing it is one of the quickest ways to draw a fair housing complaint. HUD’s guidance is unambiguous: a policy that excludes applicants based on arrest records alone, with no conviction, can never satisfy the burden of showing the rule is necessary to protect a legitimate interest. An arrest is not proof that criminal activity occurred.3HUD Office of General Counsel. Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records
HUD does acknowledge that an arrest can prompt further inquiry. A landlord who learns of one may look into the underlying conduct through other evidence, such as police reports or witness statements. The arrest by itself, though, cannot be the reason for a denial.
Assessing a Conviction the Right Way
When a background check turns up a conviction that falls within a landlord’s screening criteria, HUD strongly encourages an individualized assessment before the final decision. The idea is to give the applicant a chance to add context that the record itself can’t carry.
A defensible process usually looks like this. The landlord tells the applicant that a potentially disqualifying record has surfaced, identifies which conviction is at issue, and provides a copy of the background report. The applicant then gets a reasonable window to respond with mitigating information. HUD points to several factors worth weighing:
- The circumstances of the offense, and whether it actually relates to tenant safety or property protection.
- The applicant’s age at the time of the offense.
- How much time has passed since the conviction.
- The applicant’s tenant history before and after the offense.
- Evidence of rehabilitation, including treatment programs, steady employment, community involvement, and letters from counselors or employers.
Criminological research consistently shows that the risk of reoffending drops substantially over time, and HUD expects landlords to reflect that. A rule that treats a decade-old shoplifting misdemeanor the same as a recent violent felony is hard to defend as necessary or proportionate. Documenting the entire review, including what the applicant submitted and how the decision was reached, is what separates a defensible denial from one that looks arbitrary in an investigation.
State and Local Fair Chance Rules
Federal law is the floor. A growing number of cities and states have layered stricter fair chance housing laws on top. Seattle became the first major U.S. city to enact one in 2017, barring consideration of most criminal history throughout the rental process. New York City followed in 2024 with its Fair Chance for Housing Act, which prohibits housing discrimination based on criminal history with limited exceptions.
These local laws are often more prescriptive than federal guidance. Common features include:
- Delayed inquiry rules that bar asking about criminal history on the initial application and require a conditional offer before any background check.
- Lookback caps that limit how far back convictions can be considered, often somewhere between three and seven years depending on severity.
- Categorical protections for sealed or expunged records, juvenile offenses, and convictions for conduct that has since been decriminalized.
The variation is real. A policy that’s fully legal in one city can violate an ordinance in the next town over, so landlords operating in more than one market need to check each jurisdiction on its own terms.
Background Check Rules Under the FCRA
Any landlord who uses a third-party service to run a criminal background check is pulling a consumer report under the Fair Credit Reporting Act. That triggers a separate set of federal obligations that sit alongside the Fair Housing Act.
Before running the check, the landlord needs written consent from the applicant and a clear, standalone disclosure that a consumer report may be used in the decision. Bundling that disclosure into the lease or burying it in fine print does not satisfy the requirement.
If the landlord denies the application based partly or entirely on information in the report, the FCRA requires an adverse action notice. It applies even when the report played only a small role. The notice has to include the name, address, and phone number of the screening company; a statement that the screening company did not make the rental decision; and notice of the applicant’s right to dispute the report’s accuracy and to get a free copy within 60 days.5Federal Trade Commission. Using Consumer Reports: What Landlords Need to Know
Skipping this step creates its own exposure. For willful violations, statutory damages run from $100 to $1,000 per violation on top of any actual damages, plus attorney fees.6Office of the Law Revision Counsel. 15 USC 1681n – Civil Liability for Willful Noncompliance Class actions from multiple rejected applicants can push those numbers up fast.
What It Costs to Get This Wrong
The financial exposure for an unlawful denial depends on how the case is brought. A rejected applicant can file a complaint with HUD or a state or local fair housing agency.7U.S. Department of Housing and Urban Development. Report Housing Discrimination If the case proceeds through an administrative hearing, current civil penalty caps are up to $26,262 per discriminatory practice for a landlord with no prior violations, up to $65,653 with one prior violation in the past five years, and up to $131,308 with two or more in the past seven. These amounts are adjusted periodically for inflation.8eCFR. 24 CFR 180.671 – Assessing Civil Penalties for Fair Housing Act Cases
When the Department of Justice brings a case in federal court, the caps are different: up to $50,000 for a first violation and up to $100,000 for subsequent ones.9Office of the Law Revision Counsel. 42 USC 3614 – Enforcement by Attorney General Either track can also produce an order to pay the applicant’s actual damages, including the cost of finding alternative housing, emotional distress, and attorney fees. FCRA violations layer on top, so a landlord who both discriminates and mishandles the background check process faces claims under two federal statutes at once.