Multiple Choice Question: Given that April is National Fair Housing Month, let’s test your knowledge of the fair housing laws. Which of the following is a landlord prohibited from doing when renting out a property to a prospective tenant? Pick the best answer:

A. Checking a rental applicant’s criminal history.
B. Refusing to rent to anyone with a criminal history.
C. Delaying the consideration of an applicant’s criminal history until after the landlord verifies the applicant’s financials and other qualifications.
D. Considering an applicant’s mitigating information concerning a past criminal conviction. 

Answer: The correct answer is B. Effective January 1, 2020, the California Department of Fair Employment and Housing (DFEH) imposes new regulations for landlords who consider a prospective tenant’s criminal history (2 CCR sections 12264-71). The new regulations are extrapolated from existing fair housing laws that generally prohibit landlords from discriminating against prospective tenants based on various protected characteristics, such as race and national origin. Although “criminal history” is not a protected characteristic, African Americans, Hispanics, and other groups have higher rates of arrest, conviction, and incarceration, as compared to the general population. Hence, deciding whether to rent based on someone’s criminal history can have an unfair and disparate impact on members of these protected groups.

Under the new DFEH regulations, a landlord can only deny housing based on someone’s criminal conviction that is directly related to a legitimate and nondiscriminatory interest, such as the safety of other residents. For example, a 10-year old misdemeanor conviction for driving a vehicle is unlikely to be directly related to renting a property, whereas a recent conviction for arson could be.

Additionally, the new DFEH regulations allow a landlord to check someone’s criminal history (Answer A), but only if the landlord follows certain guidelines. Among other things, the landlord is required to delay seeking, considering, or using criminal history information until after the landlord has verified the prospective tenant’s financials and other qualifications (Answer C). Another requirement is that a landlord must give an applicant an opportunity to submit mitigating information before denying housing based on a past criminal conviction (Answer D).

Our Agents’ Role: Although lease listing agents tend to be highly motivated to protect their landlords from undesirable tenants, there are serious limitations to what you are allowed to do. You must provide landlords with our BHHS Landlord Advisory, which specifically informs them that they must personally ascertain the qualifications of each prospective tenant independently of our brokerage. You should not prescreen tenants on a landlord’s behalf. You should not personally order a tenant’s credit report, and based on the above discussion, you should refrain from ordering someone’s criminal history information upfront or otherwise engage in any fair housing violations.

Resource: For more information, the DFEH has a Fair Housing and Criminal History FAQ. If you give the FAQ to your client, make sure that you get the client’s written acknowledgment of receipt.

-Thank you to Kathy King (Calabasas and Encino Manager) for suggesting this week’s legal tip!

Copyright© 2021 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of April 26, 2021. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.