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Property Management Real Estate

Fair Housing: Are You Up to Date on Criminal Background Checks?

Since the real estate market crash in late 2008, many people have become landlords who would have otherwise not done so. Beside the normal and expected tasks (collecting rents, doing maintenance, responding to “emergency” complaints, etc.), one of the most important duties that landlords must be aware of is compliance with the federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended; codified at 42 U.S.C. §§ 3601–3619), particularly that portion dealing with the use of criminal background checks when screening applicants.

For years, Florida landlords were allowed to solely determine their own guidelines on who they would accept as tenants when an applicant had a crime on his/her background, so long as all applicants were treated equally regardless of race, religion, etc. with respect to such guidelines. However, on April 4, 2016, the U.S. Department of Housing and Urban Development (“HUD”) promulgated a document titled Office of General Counsel Guidance on Application of Fair Housing Act Standard to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (hereafter referred to as the “Criminal Background Guidance Document”). The recent Criminal Background Guidance Document vastly changed the way landlords must address and consider applicants who may have a criminal incident in their past.

In brief, instead of solely utilizing bright-line, inflexible criminal history criterion setting forth who the landlord deems acceptable or unacceptable 1, the landlord must, if rejecting an applicant based upon a prior criminal incident, take into account (1) the nature and severity of the applicant’s prior criminal conduct; (2) the amount of time that has passed since the criminal conduct occurred; and (3) individual mitigating factors such as [i] unusual facts or circumstances surrounding the prior criminal conduct; [ii] the age of the applicant at the time of the prior criminal conduct; [iii] evidence that the applicant has maintained a good tenant history regardless of the prior criminal conduct; and [iv] evidence that the applicant has made rehabilitation efforts since the prior criminal conduct occurred. Landlords may not take into consideration prior arrests of the applicant that do not result in an actual conviction, or use a criminal record as a pretext for unlawful discrimination on other grounds such as race, religion, national origin, etc. Landlords can continue to decline applicants based upon a conviction, without having to consider the above-listed additional factors, for the illegal manufacture of a controlled substance or distribution of a controlled substance. The foregoing crimes are the only exceptions, and please note that the exceptions do not pertain to possession of a controlled substance.

HUD is currently investigating and enforcing the Criminal Background Guidance Document. In order to demonstrate compliance with the Criminal Background Guidance Document in the event of a HUD Fair Housing complaint, an applicant who is rejected because of failing to meet a landlord’s initial criminal background guidelines should be notified of such rejection in writing and, within that written document, the applicant should be offered a meaningful opportunity to address with the landlord the additional factors that must be considered per the Criminal Background Guidance Document. The initially-declined applicant may or may not choose to meet with the landlord to discuss the prior criminal incident(s); nonetheless, the landlord must provide the applicant with the right to do so 2 .

So far, HUD has not set forth specific guidelines of what is and what isn’t an acceptable criminal background; instead, HUD is enforcing the Criminal Background Guidance Document by investigating whether the landlord gave declined applicants a meaningful opportunity to address the additional, personal factors listed in the Criminal Background Guidance Document. Compliance with the Fair Housing Act is highly recommended, as HUD investigations can be lengthy, tedious, and expensive. Further, if found guilty not complying with the Fair Housing act (including but not limited to the Criminal Background Guidance Document) the monetary penalties can be quite severe.

 

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[1] “Base” criminal background guidelines are still acceptable; however, HUD’s Criminal Background Guidance Document comes into play whenever an applicant is rejected for failing to meet the landlord’s base criminal background requirements.

[2] Please note that the Criminal Background Guidance Document applies only when an applicant is denied based upon one or more prior criminal incidents. It does not affect—and applicants can still be denied for—poor credit, failing to meet minimum income requirements, etc.

Categories
COVID-19 Property Management

COVID-19’s Impact on Evictions and Foreclosures

On March 18, 2020, President Donald Trump ordered a moratorium on the foreclosures of mortgages that are insured by the Federal Housing Administration (FHA).  That moratorium arose from the President’s proclamation that the COVID-19 outbreak constitutes a national emergency.  The moratorium is expected to stay in effect for at least the next sixty days.

Commercial Outdoor RetailAlthough the effect of the President’s moratorium has thus far had a somewhat limited impact locally, other events have caused either extreme delays or complete stoppages of foreclosures and evictions.  For example, Hillsborough County Chief Judge Ronald Ficarrotta recently issued an Administrative Order that expressly authorized the Sheriff to completely cease the execution of Writs of Possession arising from eviction suits until at least April 20, 2020.  It is a fair presumption that the holding of Writs of Possession by the Sheriff’s Department will continue past April 20, 2020, if the effects of the COVID-19 pandemic have not significantly improved by that time.

Judge Ficarrotta’s Administrative Order has effectively stopped the completion of evictions in Hillsborough County.  It is unknown if the Hillsborough County Sheriff will apply Judge Ficarrotta’s Administrative Order to commercial evictions, as they are not specifically mentioned.

Hillsborough County is not the only Florida County with stoppages in the court system.  In almost every Florida county, the Clerk of Court’s Office is closed to the public.  Further, at least thirty-seven separate Sheriff’s Departments in Florida have ceased executing Writs of Possession.  Even in counties where the Sheriff’s Department is still in action, landlords are faced with judges who are only handling cases that are “mission critical.”

If you decide to file for eviction, it is our firm’s recommendation that you move forward quickly – especially on commercial evictions, as the intent of the Order appeared to be related to dwellings.  Although you will very likely hit a stoppage, we think it is important to advance your case as far as possible and get in line as early as possible, so that your case is more quickly addressed when the court system resumes full operations.

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COVID-19 Property Management Real Estate

What Landlords and Property Managers Should Be Doing During COVID-19

As the nation responds to the Coronavirus outbreak, we are all hopeful for the best outcome. During these trying times, however, consider the following:

Communicate: In times of trouble, one of the most important factors is a constant and open line of communication. This is also true for landlords and property management teams. While practicing social distancing to help slow the spread of COVID-19, communication via e-mail, phone and video chatting should be utilized. Have an open line of communication with each tenant. Notify them of continued monitoring of the national and local situations, as well as, ask them to notify you if there is any change in their health or employment status.

Rent: As of this date, there has been no government-mandated abatement of rental payments. However, many Florida jurisdictions have stayed their evictions during this pandemic. Landlords and property managers should continue to monitor the situation to stay up to date with any changes and communicate with tenants accordingly.

Inspections: Cancel all regular onsite inspections until further notice.

Repairs: Tenants should be notified that repair requests are to continue as they always have, however, repairs will be prioritized according to necessity. Obviously, plumbing, electrical and HVAC issues will take priority over others.

As the nation responds to the Coronavirus outbreak, we are all hopeful for the best outcome. As we move forward through these unprecedented times, continue to monitor developing and changing legislation and court orders to ensure that you are not opening yourself up to any sort of liability. As information comes available, continue to communicate with your tenants so all parties have a clear understanding of the nature of these events.

If you have any questions or need guidance regarding your potential exposure and/or responsibilities during this crisis, please contact Lieser Skaff Alexander to speak with one of our Florida landlord/property manager attorneys.