Your rights when you’re applying for an apartment with a criminal record

🏘️ This article is part of our guide to tenants’ rights in Philadelphia. Got a question? Ask us using the form at the bottom of this article.

Finding a home or apartment to rent is stressful under any circumstances, but it can be even more difficult if you have a criminal record.

Many landlords, after all, perform criminal background checks as part of the application process, and having a criminal record can legally be grounds for denial. In large part, that’s due to people with criminal records not being considered a protected class under the Fair Housing Act, which federally outlaws discrimination against housing applicants based on race, age, religion, and other factors. There are, however, some limited protections.

“Have a criminal record really hampers your ability to rent,” says Rachel Garland, managing attorney for Community Legal Services of Philadelphia’s housing unit. “What protections do apply, apply down the road after a lot of time has passed.”

And in the United States, the people with some type of criminal record is not a small group. While the exact number is not totally clear, decarceration advocacy organization the Sentencing Project puts the total between 70 million and 100 million people — or up to about one in three Americans.

So if you have a criminal record, when can you be denied housing, and what can you do to increase your chances of being approved? Here is what you need to know:

Private landlords have a lot of discretion when it comes to when they can deny applicants who have a criminal record. So there can be a wide variety of crimes for which you can be denied, but, Garland notes, they can only deny you for convictions, not arrests. And there has to be “some nuance to the landlord’s policy” that considers elements like the seriousness of the crime and the amount of time that has passed since you were convicted.

According to 2016 guidance from the U.S. Department of Housing and Urban Development, policies that don’t have that type of nuance — or put a blanket ban on renting to anyone with a criminal record — could be considered discriminatory, and therefore in violation of the FHA. That’s because of a concept known as “disparate impact,” which notes that statistically, Black and brown people are incarcerated at “rates disproportionate to their share of the general population.”

“I you’re going to make a blanket statement of, ‘I’m not going to rent to anyone that has a record,’ it also has a racial impact,” Garland says. “There are legal arguments to be made that having a policy that anyone with a criminal record of any kind is barred from housing is a type of discrimination.”

That being said, Garland says that those types of cases are difficult to bring to court, and are not often used on an individual basis. So if you are denied housing by a private landlord, you have few options. One, however, is to simply have a conversation with your landlord to explain your situation.

“You can call the landlord or write them a letter,” she says. “You don’t have a right to an appeal because it’s not an administrative body, but it still never hurts to have that conversation.”

Public housing is federally regulated, so your rights and options are a little more clear in that realm, Garland says. Organizations like the Philadelphia Housing Authority, which handles public housing in the city, will consider the type of crime of which you were convicted, as well as the amount of time that has passed since your conviction, during the application process — but it can refuse to rent to you under certain circumstances.

The PHA can refuse to rent to you for things like drug-related criminal activity, violent crimes, and criminal activity that “affects the health and safety of your neighbors and property management,” according to PhillyTenant.org. Other crimes, CLS says online, are more likely to negatively affect your application if they happened within the last five to 10 years. The PHA breaks down that “look-back” period for various crimes in a chart in their “Public Housing Program Admissions and Continued Occupancy Policy.”

Garland adds that you will also be denied if you are a lifetime sex offender registrant, have been previously evicted from subsidized housing for manufacturing methamphetamine, or for active drug use. But minor crimes, such as a conviction for retail theft, “should not be grounds for you to be denied housing,” Garland says.

If you are denied public housing because of your criminal record, it’s important to note that you do have the right to an appeal, which results in a hearing with the housing authority that denied you admission where you can explain your situation. So, Garland says, when you get a denial, pay attention to what the appeal deadline is, and request a hearing before that date.

“One of the biggest problems is that people get the denial notice and walk away at that point, not realizing that it never hurts to ask. You should always try to advocate for yourself,” Garland says. ‘We’ve seen the housing authority admit many tenants after they’ve been denied.”

The best way to get approved for housing if you have a criminal record, Garland says, is to gather letters of support. Those could be from a range of people, such as an employer, a teacher, a pastor, a neighbor, or a former landlord. Essentially, those letters should help define you outside of your record.

“You want to have something that outweighs [your conviction] for the landlord,” Garland says. “If you have other things that the landlord can consider, present it to them.”

In addition to letters, consider presenting other documents that speak well to your experience — such as a GED you earned while incarcerated, or proof of having completed an anger management course if you were convicted of simple assault. Those things can show that “you are more than just what that criminal record says about you,” Garland says. You can present those documents and letters to the landlord when you apply, or at an appeal after being denied.

“A landlord is looking to see is this person going to be a good tenant? Are they going to pay their rent on time? Are they going to cause problems?” Garland says. “Anyone that can speak to your level of responsibility is a good candidate for writing a letter of recommendation.”

Alternately, you can try to have your record expunged, which requires you to file a petition for expungement in the court of the county where you were charged, but it’s complicated. Expungement can remove your record from public view, but filing doesn’t guarantee that your request will be granted. Organizations like CLS can help with that process.

If you are applying for housing with a criminal record, or you have already been denied, there are a number of places you go can go to get help:

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