Public Housing Advocates Take Issue with HUD's Memo Regarding the Use of Criminal Backgrounds In The Tenenat Screening Process

Posted by Tristan R. Pettit, Esq. / Comments

The Public Housing Authorities Directors Association (PHADA), a public housing advocacy group comprised of chief executives of public housing authorities, has published a very detailed and well reasoned letter attacking HUD's recent memo regarding landlords use of rental applicants criminal background in the tenant screening process.

If you are would like to learn more about HUD's April 4, 2016 memo drafted by its Office of General Counsel (OGC) you should read my prior blog summarizing the memo.

PHADA takes issue with the HUD memo on a number of grounds:

1. The guidance was issued outside of its normal channels and as such has circumvented the normal extensive internal vetting and review process.

2. New requirements and review standards have been created by HUD without public notice and comment period as required under the Administrative Procedures Act.

3. The guidance is inconsistent with or in some cases contradicts the tone and content of some of HUD's existing regulations.

4. The guidance many not comply with the standards regarding implementation of disparate impact as set forth by the U.S. Supreme Court in Texas Dept. of Housing and Community Development v. Inclusive Communities Project, Inc.

5. HUD's memo appears to contradict guidance issued by HUD's Office of Public and Indian Housing concerning the use of arrest records for screening applicants for public housing and Section 8 programs.

6. The guidance, in conjunction with other regulatory actions and procedures of HUD, could increase the risk of litigation.

7. The guidance fails to offer landlords specific guidance concerning what constitutes acceptable and unacceptable screening practices or to describe any safe harbor for landlords concerning the use of an applicant's criminal history.

While the PHADA's letter is long it is very well written and argued and I encourage everyone affected by HUD's memo (i.e. ALL LANDLORDS) to read it in its entirety.

If anything comes of the letter and its arguments I will keep you apprised in a future blog post.

Thanks

T