This article explores the legal risks associated with the use of past criminal convictions in the prospective residential tenant screening process. It attempts to answer the question of whether or not it is legal to request rental applicants to provide information regarding past criminal convictions and, if convictions are discovered, the extent this information can be used to determine their rental eligibility.

In order to adequately research this issue, we needed to consider various bodies of law including federal and state statutes, California case law, and the California State Constitution. It is well settled that residential landlords may establish tenant selection criteria concerning the applicant's general character and past conduct to protect current residents and neighbors from anyone who may pose a threat to their health and safety. For instance, the Federal Fair Housing Act specifically allows landlords to refuse to rent to anyone who may be a threat to the health and safety of other persons. In addition, California case law has established that landlords have a duty to protect the public and other tenants from foreseeable harm caused by a tenant that could have been prevented. See Rosales v Stewart (1980) 113 CA3d 130, (child killed by a bullet fired from adjoining premises; parents stating cause of action by alleging that perpetrator's landlord knew of tenant's dangerous propensities before renewing lease).

Nevertheless, this inquiry is fraught with risk because of the potential for claims of class-based fair housing discrimination, arbitrary decisions, and invasions of privacy. California case law has not specifically addressed the issue of a landlord's right to acquire criminal background information from applicants so there is no definitive legal precedent to follow for this issue and each situation must be looked at on a case by case basis. The following are some of the legal risks you would potentially face by using prior criminal background as a screening tool.

Invasion of Privacy

California has always been a leading state regarding protecting the rights of privacy of its citizens. In fact, it is one of the few states that contain a separate and distinct right of privacy clause in its constitution. This provision, found in Article I of the California Constitution, protects persons from being required to disclose personal information if they have a reasonable expectation of privacy. The courts have protected California residents' right to privacy when the invasion of privacy is serious, and countervailing interests do not justify the disclosure. Hill v Nat'l Collegiate Athletic Assoc. (1994) 7 C4th 1.

By using this balancing test, the court would consider whether the intrusive nature of the questions regarding past criminal convictions or behavior is outweighed by the risk of liability associated by renting to someone who poses a health or safety risk. It appears that the relatively slight imposition on the privacy of the applicant by inquiring into his or her criminal background is outweighed by the risk associated with renting to a potentially violent or abusive person.

Illegal Discrimination

State fair housing laws prohibit the application of a uniform and objective standard for selecting the tenants if the standard excludes a disproportionate number of members of a protected class and the landlord does not have a business necessity for using it. This is known as the "disparate impact" or "discriminatory effect" cause of action for fair housing violations of this nature. Under California law, a landlord's selection criteria that have a discriminatory effect on a protected class of individuals must be necessary to the operation of the business and effectively carry out the significant business needs it is alleged to serve.

Therefore, refusing to rent to any person convicted of any crime would likely be subject to an action based upon discriminatory effect of protected classes, or deemed arbitrary discrimination which is also outlawed in California under the Unruh Civil Rights Act.

As mentioned above, the Federal Fair Housing Act provides that a landlord is not required to rent to applicants whose tenancy would constitute a direct threat to the health or safety of other individuals. Congress intended that a landlord be able to reject an applicant under this provision only if the landlord determines, by objective evidence, that it is sufficiently recent as to be credible and not from unsubstantiated references that the applicant would pose a threat. Therefore, a landlord has the right, and some would say a duty, to reasonably investigate the background of tenant applicants. If the applicant's criminal record is used only to determine if there were past incidences of bad conduct, running criminal background checks is legal and proper, especially in properties where there is a high crime rate.

Are criminal background checks legal? It appears that they are, so long as the criminal background information is limited to a certain time frame and comes from a reliable source, and is for the purpose of finding past bad conduct which would put other residents or neighbors in a state of potential harm. If you are going to use criminal background checks for screening, I recommend utilizing an established tenant screening company and establish guidelines concerning the nature and age of the past bad conduct.

For fair housing considerations, it is very important to be consistent with all applicants and to ask every applicant for criminal background information or run criminal background checks on every applicant. Deviations from the criteria should only be pursuant to policy changes.

Conviction Vs. Conduct

An important distinction should also be made between denying an application based on a conviction as opposed to denial based upon past bad conduct. Although this distinction may appear to be one of semantics, it is nevertheless an important one to make. People convicted of crimes are generally protected from further "punishment" for their crimes based upon unfair and discriminatory treatment. The only exception is found under fair housing laws that permit landlords to deny an application based on the fact that he or she was convicted of manufacture or distribution of a controlled substance. Therefore, it is important to deny applications based on the past bad conduct that led to the conviction and not the conviction itself, unless the conviction was based on illegal drug sale or manufacture.

One final note, you may consider whether or not to run criminal background checks on a property by property basis, depending upon the crime statistics in the area where each property is situated. The higher the crime rate, the more important it is to screen out applicants who would engage in criminal behavior while residing on your property. 

This article is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances. If you have any questions regarding the above material or any other matter involving landlord-tenant issues, you may contact the Law Offices of Kimball, Tirey and St. John, 800-338-6039.

(Ted Kimball is the founding partner of the statewide law firm of Kimball, Tirey, and St. John, which specializes in real estate law and represents clients throughout California. Any questions regarding the content of this article should be directed to Mr. Kimball at 800-338-6039.)