The increased availability of information via the Internet has spawned an industry devoted to providing credit, criminal and rental histories to landlords. Criminal background checks, in particular, seem like a reasonable business practice to help landlords decide whether they should rent to a prospective resident. However, these present a host of thorny issues, and landlords should proceed carefully before establishing a definitive policy founded on the use of these reports.
One problem is the information provided is not always accurate. Criminal checks typically involve federal, state and/or local court records of misdemeanor and felony arrests and convictions. Because government agencies do not uniformly make their databases freely available, results can be incomplete. In addition, if the background service does not perform regular database updates, this may also result in incomplete information.
Before acting upon criminal background information, a landlord must be clear about both legal responsibilities and potential liabilities. Under federal fair housing laws, a landlord is permitted to refuse a prospect whose tenancy would constitute a direct threat to the health or safety of others or would result in substantial physical damage to the property of others. However, cases decided under the Fair Housing Act limit the types of criminal activities a landlord may rely upon in rejecting a prospect. Furthermore, a landlord who elects to screen criminal history of applicants at some, but not all, communities, may unwittingly be exposed to claims of …