On September 26, in a move many advocates view as an attempt to weaken equity protections in HUD-assisted housing, the U.S. Department of Housing and Urban Development (HUD) issued a notice rescinding the guidance titled “Guidance for Public Housing Agencies and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions” (HUD Notice 2015-10).
Originally published in 2015, HUD Notice 2015-10 advised HUD Multifamily Housing Owners and Agents that arrest records may not be used as the basis for denying admission, terminating assistance, or evicting tenants, and it reiterated the obligations of housing providers under the Fair Housing Act.
It is important to note that the 2016 Joint HUD/DOJ Guidance on the use of arrest records in tenant selection—which applies to all housing subject to the Fair Housing Act—has not been rescinded.
What the New HUD Notice Does Not Do
1. It Does Not Require Denials Based on Arrest Records
HUD is not directing HUD-assisted properties to deny applicants based on arrest records. The new notice simply removes previous guidance that prohibited using arrest records as a basis for denial.
2. It Does Not Eliminate Fair Housing Liability
If a HUD Owner or Agent decides to revise their tenant selection criteria to include denials based on arrest records (rather than convictions), the new HUD notice does not protect them from exposure to discrimination claims under the Fair Housing Act.
What Should Housing Providers Do Now?
At this time, we do not recommend making changes to criminal screening criteria that would allow denials based solely on arrest records. Such revisions could result in future discrimination claims—even if HUD or the Department of Justice takes no immediate enforcement action.
Maintaining a screening policy focused on convictions rather than arrests remains the legally safer approach under existing Fair Housing Act guidance.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Readers should consult qualified legal counsel regarding their specific circumstances.
