Crime occupies more real estate in San Francisco headlines than it should. As we slowly emerge
from a global pandemic, it is still fresh in the minds of San Francisco housing providers that even
law-abiding tenants may flout rental obligations.
Outright refusal to rent to applicants with a criminal record may seem like a simple and efficient way to mitigate certain, unwanted risk. [Be aware of the housing discrimination law!
Criminal History Housing Discrimination
But housing discrimination law adds nuance in your approach to drafting your advertisements to include criminal background preference, in performing background checks for certain applicants, and in exercising preference for those applicants without a criminal history.
I want to stress that “criminal records” are a complicated topic. Regardless of your feelings on,
say, the Boudin recall (and the choice for a DA to run on a platform of not prosecuting crime!), there is an undeniable correlation between the criminalization of certain activity, the enforcement against suspected criminals, and the prosecution of these suspects in context of the history of racial and social justice. This article takes no position on this issue, other than to situate its effects within existing law. Consideration of criminal records impacts this industry at the outset, as well as after the landlord-tenant relationship is created.
Fundamentally, housing providers need to be cautious of discriminatory behavior in offering housing. California’s strong anti-discrimination laws prevent advertising and housing applicant choices along lines that would exclude protected classes. (These include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, veteran or military status, or genetic information.)
While “criminal histories” are not among these protected categories, blanket advertisements stating “no criminal records” could result in unintended discrimination. Housing providers can advertise that they will run criminal background checks, but their protocols must perform them in all circumstances, not ones that track protected classes (even if unintentionally).
When Can You Refuse a Criminal?
When a housing provider does perform blanket checks and considers them in providing offers to lease, criminal history should only become a selection factor where the past crime affects the applicant’s ability to meet obligations of the tenancy or presents a direct threat to the health and safety of other occupants.
These problems are difficult to divine in advance of the landlord-tenant relationship. And housing providers may be concerned about potential liability to other tenants/strangers. Fortunately, the California Supreme Court has recognized the conundrum that would result from foisting liability on the landlord that could only be avoided by discriminating against all applicants with criminal records. A landlord should only be found liable for renting to a tenant with criminal record where there is an extraordinarily foreseeable chance that harm will result to another tenant, and they only have a duty to evict such a tenant where harm to another on the grounds is highly foreseeable.
In short, you may advertise that criminal background checks will be performed for all applicants
(you, then, must actually perform them in all circumstances), you may refuse to offer housing only when the past conviction poses an immediate/imminent problem, and you must evict only when harm or violence toward tenants/neighbors has occurred or becomes highly foreseeable.
Justin A. Goodman, Esq. is with Zacks, Freedman & Patterson, PC and focuses on Bay Area real estate law, with an emphasis in landlord-tenant and contract disputes. Justin has spent over a decade tackling difficult problems created by rent control ordinances in San Francisco, Oakland and Berkeley. He is well-known for effective use of the Ellis Act and other non-fault terminations in advancing his clients’ rights, but he looks for holistic solutions to avoid prolonged legal fights, whenever his clients and other parties can find greater benefit in resolution.
Reprinted with permission of the Small Property Owners of San Francisco Institute (SPOSFI) News. For more information on becoming a member of SPOSFI or to send a tax-deductible donation, please visit their website at www.smallprop.org or call (415) 647-2419.