37-a-1 Private Housing

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

37-A-1. Private Housing

(a) Buying or Renting

If you are trying to buy or rent housing from a private party, your criminal conviction will probably make things more difficult for you. (If you want public housing assistance, see Section 2(a) below.) The federal Fair Housing Act¹ prevents public and private parties from discriminating against potential buyers or renters on the basis of race, color, religion, sex, handicap, familial status, or national origin. However, there is no law that prevents private parties from deciding not to sell or rent to you because of your criminal history. Although there is no law requiring you to report your criminal history when you fill out a rental application, the landlord may ask you to provide this information on the application. Further, your criminal record may show up if your landlord checks your credit history. In addition, a lender will also likely check your credit history before agreeing to give you a mortgage.

The Fair Housing Act also allows landlords to refuse to rent or sell "to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others."² Under this provision, as well as under some state laws, a landlord may decide that your criminal history poses a threat to others and their property, and refuse to sell or rent to you on that basis.³ The landlord or seller may refuse to rent or sell to you on these grounds even if you would otherwise be protected under the Fair Housing Act. For example, if you have a disability but your criminal history indicates that you would pose a threat to others, the landlord may choose not to rent to you. Since the exclusion is based on the landlord's belief that you pose a threat because of your criminal history, not because of your actual disability, the exclusion does not violate the Fair Housing Act. If brought to court, a landlord who wants to exclude you on the basis of your criminal history will have to show "objective evidence that is sufficiently recent as to be credible, and not from unsubstantiated inferences, that [you] will pose a direct threat to the health and safety of others."⁴

(b) Exception for Participants in Drug Rehabilitation Programs

There is a possible exception to the...