Access to housing in the country's most unaffordable city is already a pipe dream for many New Yorkers with working class jobs, never mind rental vouchers or a history of arrests. And while the federal Fair Housing Act of 1968 explicitly prohibits discrimination against homebuyers or renters based on race, national origin, religion, sex or disability, the law is not clear on the rights of tenants or buyers with criminal records. In an effort to extend the act's reach, the Department of Housing and Urban Development (HUD) today clarified that it does technically protect renters and buyers with criminal records—under most circumstances.
"When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason," HUD Secretary Julian Castro told WNYC this week. According to HUD, any landlord or home seller with a blanket policy against renters and buyers with criminal records is practicing racial discrimination, because black and Hispanic home-seekers are disproportionally impacted by the criminal justice system.
One in four Americans has a criminal record, which might include a serious conviction like assault or murder, a petty conviction like theft, or a laundry list of arrests that never even led to a conviction. Moving forward, HUD will require landlords to distinguish between convictions and arrests, and bar housing to convicted criminals only with acceptable justification (for example, if the conviction is a violent felony). They'll also be required to consider how much time has lapsed since the applicant was last arrested or convicted. The NY Times reports that HUD is now empowered to bring discrimination charges against bad actors, and that victims of housing discrimination based on a criminal record could win damages.
But even though landlords will now be required to prove whether a potential renter or buyer poses a safety threat, the new protections exclude anyone who has been convicted of manufacturing or distributing drugs—a conviction that is more common in rural areas, where there's more space to manufacture methamphetamines, according to Legal Aid Civil Law Reform Attorney in Charge Judith Goldiner. Registered sex offenders and drug users are also excluded.
JoAnne Page, head of the Fortune Society—an organization that provides housing for formerly-incarcerated New Yorkers—is hopeful about the new guidelines, noting that many NYC landlords rely on HUD for funding. "Because it's HUD, and because so much of the affordable housing has HUD funding in the mix, I think this has the potential to change behaviors," she said.
Similar anti-discrimination guidelines are already in place in NYCHA housing—the city authority is required to give housing applicants the opportunity to show that they have improved their track record since an arrest or conviction. However, Goldiner says that while Legal Aid is "pretty successful" at getting NYCHA to examine an applicant's records in court, applicants who don't have legal representation find the process "pretty difficult."
"What HUD is saying is that you should have a chance to show that you can be a good tenant," Goldiner said. "Demonstrating that can be a hurdle for tenants who don't have attorneys to help them."
Governor Cuomo in February announced that he was deploying a group of fair housing "testers," acting as potential renters, to root out landlords and sellers discriminating on renters or buyers based on age, race, disability or economic background. And last summer, the Fair Chance Act was voted into law, prohibiting employers from asking about an applicant's criminal record until the end of the hiring process. Many colleges still require applicants to check a box disclosing whether they have been convicted of a crime—a practice that has prompted recent protests at NYU.
UPDATE: This piece has been updated with comments from the Legal Aid Society.