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Associations cannot ban residents on the basis of their arrest history--the prohibition is too broad. Also too broad is a blanket prohibition of residents with a criminal conviction since nearly one-third of the population in the United States has a criminal record of some kind or another. A prohibition on felons may be possible if done properly.

HUD Guidelines. In April 2016, the U.S. Department of Housing and Urban Development (HUD) provided a guide on how to apply Fair Housing Act standards to the use of criminal records by housing providers. (HUD - Criminal History.) With some exceptions, HUD generally deems denial of housing based on criminal history as a violation of the Fair Housing Act. Although an association is not a housing provider, it is viewed as such in many instances by HUD and the courts. (Associations were found to have similar obligations to landlords regarding resident safety under Frances T. vs. Village Green Owners Ass’n. (1986) 42 Cal.3d 490.) As a result, HUD guidelines provide a good guide for associations to follow.

[a] housing provider that imposes a blanket prohibition on any person with any conviction record–no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then–will be unable to meet this burden [that the restriction is legitimate and nondiscriminatory].

A housing provider with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.

Accordingly, a policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a ‘substantial, legitimate, nondiscriminatory interest’ of the provider. The determination of whether any particular criminal history-based restriction on housing satisfies step two of the discriminatory effects standard must be made on a case-by-case basis.

That means white collar felons and perjurers present less risk to resident safety than recently released violent felony criminals and arsonists. Registered sex offenders, depending on the severity of the crime, present different levels of risk to be individually evaluated.

Analysis of the Restriction. HUD goes through a three-step analysis when evaluating a prohibition on criminals.

  1. The plaintiff must show the criminal history policy has a discriminatory effect or disparate impact on a group of persons because of their race or national origin.
  2. The housing provider must show the policy achieves a substantial, legitimate, nondiscriminatory interest of the provider.
  3. The plaintiff must prove the interest served by the policy could be served by another less discriminatory practice.

Statutory Exception. Section 807(b)(4) of the Fair Housing Act does not prohibit “conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance….” So, denial of housing due to such a conviction will not result in a violation of the Fair Housing Act regardless of any discriminatory effect. Note, the exception requires a conviction, not merely an arrest, and it does not apply to other drug-related convictions, such as drug possession.

Notifying Members of Felony's Presence. A felon's mere presence in the association does did not constitute a “dangerous condition” that could give rise to premises liability. When felons are admitted to probation and parole, the legal system has made a determination that they can live in society without unreasonable danger to others, even if any particular probationer may, at some time, commit another crime. In an unpublished case, the court of appeals reasoned:

We are, in addition, troubled by the unlimited scope of the duty plaintiffs would impose on homeowners associations. If the duty to warn extended to all felony probationers who might, in some way, harm their neighbors, it would seem to cover at least those convicted of driving while intoxicated, financial crimes (from writing checks with insufficient funds to selling unregistered securities), and theft crimes, in addition to any crimes of violence. In the case of sex offenders, where the Legislature has established a mechanism for public disclosure of the whereabouts of repeat offenders, there is no duty to warn about the proximity of specific individuals merely because of their prior offenses. (Wentworth v. Sierra North Village HOA.)

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