The Latest Developments in the Tenant Background Check and Fair Housing Debate

Should landlords be allowed to use tenant background checks to determine who to approve or evict from housing? Do they have a responsibility to make fair housing available to all? What constitutes discrimination in housing?

These questions and others are a part of the ongoing national debate about fair housing. Fair housing proponents argue that housing is a human right and that landlords should be limited in their ability to decide housing accessibility, establish high rent rates, or evict tenants based on tenant background checks. Landlords—who are typically private property owners making income from the properties that they rent to tenants—argue that fair housing laws represent violations of their private property rights.

Recent news stories highlight progress for both groups.

In Philadelphia, city councilmember Kendra Brooks has introduced bills that would reshape the way that landlords use eviction records to deny leases to housing applicants. The Renters’ Access Act would “require landlords to share with tenants screening criteria and make it accessible for all prospective tenants,” according to the Philadelphia Inquirer. 

Landlords would be limited in what this criteria could include. They would be barred from denying a housing application based on eviction records from more than two years ago. Landlords would still be allowed to run tenant background checks but would have to give tenants a chance to dispute the findings if the landlord planned to use them as grounds for adverse action.

In Greenville, South Carolina, there is a lawsuit pending against the property manager of a subsidized apartment complex that alleges “discriminatory background checks.” According to Greenville’s Post and Courier, a recent ownership change of the Belle Meade apartment community led to a change in background screening policies. In the past, the apartment complex, formerly known as Fleetwood Manor, would vet residents when they applied for leasing. Now, residents say that the new owners are running background checks on individuals “who in some cases lived [at Belle Meade] for years.” 

Plaintiffs claim that they were flagged for criminal charges that were dismissed or reduced, with the property manager taking no steps to confirm whether the charges led to convictions. The property manager may be violating federal housing guidelines by approaching tenant background checks in this fashion.

While fair housing advocates are making progress in these cities, landlords won a notable victory in St. Paul, Minnesota. They appealed the local ordinance S.A.F.E. Housing Tenant Protections arguing that it was unconstitutional. 

These renter protection laws limit landlords in their ability to consider information that they learn through tenant background checks, including credit history, eviction history, and criminal history. According to the Rental Housing Journal, the ordinance also limits “how much money [landlords] can require of new tenants and forces landlords to give a written explanation when they decide not to renew a lease.”

Landlords in St. Paul sought an injunction from a federal court that would temporarily prevent the City of St. Paul from enforcing the ordinance. They argued that the ordinance was a violation of the Fifth Amendment, which states that the government cannot take private property for public use “without just compensation.” 

U.S. District Judge Paul Magnuson summarized the landlords’ case: “Plaintiffs (landlords) claim that the ordinance operates as a per se taking because it singles out private landlords to ‘address a perceived, though vaguely identified, societal problem’ related to housing needs.” Magnusson ruled in favor of the landlords, ruling that the ordinance is unconstitutional because it “forces plaintiffs (landlords) to bear society’s burden related to housing needs.” 

The judge’s ruling will likely spur revisions to the St. Paul ordinance with more collaboration between legislators and landlords.