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Fair Chance in Housing Legislation Continues to Flourish

Reentry advocates continue to push legislation at all levels of government to reform criminal screening laws, often requiring rental housing providers to engage in an individualized assessment of each applicant and/or heavy restrictions on evaluating past criminal history (and in some cases other parts of the applicant’s background) with very limited exceptions. These restrictions on screening ultimately interfere with housing providers’ ability to protect apartment residents, employees and their communities.

Additionally, these laws and applicable regulations leave housing providers vulnerable to potential legal liability under tort laws and disparate impact theory. Laws and regulations that limit the use of criminal background checks in the housing context appear in a variety of forms at the federal, state and local levels, commonly under the name of “Fair Chance in Housing”.

Earlier this month, both the New Jersey Senate and Assembly passed S-250/A-1919, known as the “Fair Chance in Housing” Law, which governs criminal background screening of applicants for residential apartments. Governor Murphy signed the bill into law on Juneteenth, June 19, 2021, the newly minted federal holiday. While it was S-250 that was the lead bill sent to the governor, it was amended by the Assembly to reflect compromise language, a direct result of the New Jersey Apartment Association’s (NJAA) successful advocacy.

The new law follows a “tiered” lookback approach, based on the severity of the crime; establishes robust liability protections for landlords against negligent screening claims arising from apartment owners giving second chances to certain ex-offenders; establishes certain “heinous crimes” that can always be considered and expanded it to include domestic violence crimes and crimes against children; removes language creating a “rebuttable presumption of retaliation” for any adverse action taken against an ex-offender. The law also creates a mediation process before penalties can be imposed in response to a complaint by a tenant or prospective tenant, as well as sets more reasonable fines for violations.

Fair Chance legislation is not limited to the state of New Jersey. The state of Nevada also considered SB 254, “Fair Chance Housing”, which would severely limit a housing provider’s ability to screen an applicant’s criminal background. Originally, the legislation started as a “ban the box”-style bill; however, it was later amended to allow housing providers to screen for violent crimes, sex crimes and arson, all without a lookback period.

To remain in line with federal guidance, the Nevada State Apartment Association (NSAA) requested legislators to incorporate HUD’s Guidance on “Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.” Nonetheless, legislators decided to continue to push legislation that did not reflect federal guidance and SB 254 ultimately passed. As a result of NSAA’s successful advocacy, Nevada Governor Sisolak vetoed the problematic legislation, allowing housing providers to continue their current resident screening practices.

The National Apartment Association (NAA) continues to work with its affiliates to oppose efforts to prohibit housing providers from evaluating a prospective resident's criminal history as part of the overall screening process. To better assist the affiliate network in their advocacy efforts, NAA has created an issue backgrounder, talking points and a 50-state statutory chart with a local supplement on criminal screening policy and other issues related to resident screening. If this becomes an issue in your area or for more information on NAA’s resources, contact NAA’s resident screening policy expert, Jodie Applewhite.