Research shows that 1 out of 3 young Americans have been arrested. While it’s important to know that not every arrest results in a charge or conviction, a landlord should always include a criminal report – also referred to as a background check – as part of their tenant screening process.
Until a few years ago, landlords could set their screening policies for potential tenants with criminal histories. But in 2016, the Department of Housing and Urban Development (HUD) released a full-length memo directing landlords on how to handle prospective tenants’ criminal background checks. This post looks at a landlord’s legal jurisdictions when conducting tenant screening via criminal reports without violating the Fair Credit Reporting Act (FCRA)
How are Criminal Reports Kept?
Criminal records were once kept in handwritten and typed files that were stored in county criminal courts. Over time, the government introduced modern databases to store this information. There are several levels of criminal record databases available today. These include:
- Local and county level database – This is the first database storage. It includes court records, police records, and department of correction records of arrested or convicted felons within a county.
- Statewide repositories – Each state has criminal records information reported from county police, criminal courts, and department of corrections stored in repositories.
- National Crime Information Center (NCIC) – States report the criminal information in their repositories to the NCIC. This organization stores criminal records in the Interstate Identification Index (III) database.
Broadening the search to the nationwide criminal database is better than relying on county searches. This is because the nationwide database might detect records that would not be present in county or state records.
How Do Credit Agencies Get Tenant Criminal Records?
When local agencies report criminal records to state repositories, the state shares this information with the federal government, which stores the records in the federal database. Landlords can access the database via online tenant screening services and so can the three major credit bureaus – Equifax, TransUnion, and Experian.
What are the Limitations to Searching Criminal Reports?
There are various limitations to searching for tenant criminal reports via state and federal databases.
On the state level, limitations include:
Different Repository Regulations
Which crimes are reported to the state repositories is regulated by each individual state. In states where reporting criminal information is voluntary, there may be missing records in state repositories.
Most state repositories contain criminal records from about 20% of counties. So chances are, some information may not be available in the state repository. If it is, it may be incomplete with only half the information.
On the Federal level, limitations include:
Data from some states and counties may not be available to people in certain jurisdictions. Some states attempt to protect personal information by withholding key information about their people from the public.
Another negative aspect of nationwide searches is that federal databases may not be current. A search may find some criminal cases that have been expunged, but still show in the database.
Strict FCRA Requirements
FCRA requires landlords not to solely base their decision on whether to take in prospective tenants or not on the information they obtain from the tenant screening test. If a landlord decides not to take in a tenant, they must provide them with a letter specifying the reason for the adverse action.
Stay informed on New Laws That Limit How Landlords Can Use Criminal Report as They Arise
Being a landlord means understanding what the law does, and doesn’t allow you to do. Tenants have special protection from wrongful eviction, harassment, and discrimination. Therefore, it is important to keep in touch with HUD guidelines through their website to know any existing or new laws.
Our tenant screening service can help you find a tenants’ criminal reports. With the right tenant, you can save you and other tenants’ years worth a lot of trouble.
Please note that this is not legal advice. If you have questions any specific legal questions surrounding criminal reports and how you may use them, your lawyer should be able to answer those.