Criminal background checks for tenants: a compliant screening guide

Disclaimer: This article is not legal advice. We encourage you to consult a local real estate  attorney for advice on your interpretation of this information as it applies to your particular circumstances. 

A criminal background check gives landlords and agents information about an applicant's criminal history. It's commonly reviewed alongside a credit report, eviction history, income information, and the rental application when evaluating a prospective tenant.

Criminal history is also subject to specific screening rules. Federal fair housing guidance affects how landlords can use criminal records in rental decisions, while some states and cities place additional limits on when criminal history can be reviewed and what information can be considered.

Understanding those rules is an important part of setting and following your tenant screening process. Here's what a criminal background check for tenants may include, how it fits with other screening information, and what to know before using criminal history in a rental decision.

How criminal background checks fit into tenant screening

Tenant screening can include several sources of information, each covering a different part of an applicant's history or qualifications. Depending on your screening criteria and local requirements, you may review:

• Criminal history for available records related to an applicant's criminal background.
• Credit history for information about credit accounts, payment history, and other financial activity.
• Eviction history for available records of past eviction proceedings.
• Income information to assess whether an applicant meets your income requirements.
• The rental application for information such as rental history and employment.

The criteria you use to evaluate applicants should be established before you begin screening and applied consistently, subject to applicable laws. A criminal background check provides information you can review as part of that process, but federal and local laws may limit when, how, and what criminal history can factor into your decision.

What does a criminal background check for tenants show?

An applicant criminal background check searches available and permitted criminal records associated with an applicant. Depending on the screening provider and available records, results may include information from criminal court records, sex offender registries, Most Wanted lists, and the OFAC watchlist.

Coverage can vary. Courts and jurisdictions differ in the records they make available, and screening providers may exclude records that don't meet their data quality standards or legal requirements. As a result, a criminal background check may not capture every record in every jurisdiction.

You can review RentSpree's current tenant screening coverage and limitations for more information about available criminal record coverage. Through RentSpree's tenant screening, landlords and agents can request criminal, credit, and eviction reports together through TransUnion.

What landlords should know about using criminal history

Finding a criminal record does not automatically mean an applicant should be denied.

Federal fair housing guidance and laws in some states and cities place limits on how and what criminal history can be used in rental decisions. Those requirements are designed in part to prevent screening policies from unfairly excluding applicants based on criminal history.

The rules that apply can vary by location, so landlords and agents should understand both federal requirements and any state or local requirements that apply to the property.

Federal fair housing guidance on criminal records

In 2016, the U.S. Department of Housing and Urban Development issued guidance on using criminal records under the Fair Housing Act.

The guidance explains that a policy that automatically excludes anyone with a criminal record can have a discriminatory effect because arrest and conviction rates differ across racial groups. A policy can violate the Fair Housing Act based on its discriminatory effect even when there was no intent to discriminate.

HUD's guidance also distinguishes between arrests and convictions. An arrest by itself does not establish that someone committed a crime and should not be used as the basis for denying housing.

When criminal history is considered, the guidance calls for a more individualized approach. Relevant factors can include the nature and severity of an offense and how much time has passed.

That means a blanket policy such as automatically denying every applicant with any criminal record can create fair housing concerns, which in turn can create liability for landlords.

State and local fair chance housing laws

Some states and cities go further than federal guidance by restricting when landlords can review criminal history, which records can be considered, or both.

These are often referred to as Fair Chance in Housing laws. In some jurisdictions, a landlord must first review the applicant based on other rental criteria and make a conditional offer before accessing criminal history.

Requirements vary considerably by location. Examples include:

• Ann Arbor, Michigan. The Fair Chance Access to Housing Ordinance generally prohibits landlords from asking about or using an applicant’s criminal history in tenant selection, with limited exceptions when a criminal background check is required by federal or state law.
• New Jersey. The Fair Chance in Housing Act generally restricts landlords from asking about or considering criminal history until after making a conditional offer. It also limits the criminal history that may be considered afterward.
• New York City. The Fair Chance Housing Law limits when landlords can conduct a criminal background check and which criminal history can be considered.
• Washington, D.C. The Fair Criminal Record Screening for Housing Act restricts criminal history inquiries until after a conditional offer and limits the records that can be considered.
• Cook County, Illinois. The Just Housing Amendment requires landlords to consider an applicant's general qualifications before reviewing criminal history and includes requirements for an individualized assessment.
• Maryland and Detroit, Michigan also have fair chance rules that restrict when or how criminal history can be reviewed.

These laws may include exceptions or additional requirements based on the property or type of housing. Check the requirements that apply where the rental property is located before setting your screening process.

What is conditional acceptance in tenant screening?

Conditional acceptance means an applicant meets your initial rental criteria but the final decision is still subject to a criminal history review.

Some fair chance housing laws require this sequence. Instead of reviewing all screening reports at the same time, the landlord first considers information such as credit, income, and rental history. If the applicant qualifies, the landlord makes a conditional offer before reviewing criminal history.

RentSpree supports conditional acceptance for criminal background checks in many locations where this process is required. This includes Cook County, Illinois; Washington, D.C.; Montgomery County, Maryland; Detroit, Michigan; and New Jersey.

For properties in supported jurisdictions, the criminal report remains unavailable while the landlord reviews the other screening information. Once the landlord confirms conditional acceptance, the criminal report becomes available for review.

A conditional acceptance is not a final lease approval. It means the applicant has met the criteria reviewed before criminal history becomes available.

Criminal background checks and adverse action

The Fair Credit Reporting Act also applies when a landlord uses a tenant screening report from a consumer reporting agency to make a rental decision.

If information in a criminal background check or another consumer report leads you to deny an application, require a larger deposit, or change the terms offered to an applicant, the decision may qualify as an adverse action under the FCRA.

Under the Fair Credit Reporting Act's adverse action requirements, the applicant must receive notice that includes:

• The name, address, and phone number of the consumer reporting agency that provided the report.
• A statement that the reporting agency did not make the rental decision and cannot explain why the decision was made.
• Notice of the applicant's right to dispute the accuracy or completeness of the information.
• Notice of the applicant's right to request a free copy of the report.

The FCRA also provides remedies for noncompliance, including statutory damages between $100 and $1,000 for certain willful violations.

RentSpree's accept-or-deny workflow includes adverse action support so landlords and agents can send the required notice when a screening report contributes to the decision.

How to run a criminal background check for tenants with RentSpree

RentSpree lets landlords and agents request criminal, credit, and eviction reports together through TransUnion.

Here's how tenant screening works:

1. Invite the applicant to apply. Attach a RentSpree rental application to your property and send the applicant a link.
2. The applicant provides their information and authorization. Screening permission is collected as part of the application process.
3. Request the screening reports. A standard screening package includes criminal, credit, and eviction reports for $39.99, typically paid by the applicant where permitted.
4. Review the available screening information. Your reports are available through your RentSpree account. In jurisdictions with supported conditional acceptance requirements, criminal history remains unavailable until you complete the required earlier steps.
5. Make and document your decision. RentSpree's accept-or-deny workflow includes adverse action support when a consumer report contributes to an adverse decision, such as an applicant denial.

You can also add bank-verified income for $10, bringing the comprehensive screening package to $49.99.

RentSpree is free for landlords and agents to sign up for and use.

Criminal background checks as part of tenant screening

A criminal background check can help you understand an applicant's available criminal history alongside the other information you collect during tenant screening.

The information available can vary by jurisdiction, and the rules governing its use can vary as well. Federal fair housing guidance discourages blanket exclusions based on criminal history, while some state and local fair chance laws restrict when criminal records can be reviewed or what information landlords can consider.

Setting your rental criteria in advance, understanding the requirements where your property is located, and following the same screening process for applicants can help you approach criminal history as part of a consistent tenant screening process.

RentSpree brings criminal, credit, and eviction reports together in one screening request through TransUnion, with optional bank-verified income and conditional acceptance support in many jurisdictions where it's required.

Frequently asked questions