HUD Criminal Records Guidance: Navigating Arrests and Convictions in Housing

Table of Contents#

What is HUD's Criminal Records Guidance?
Legal Basis: The Fair Housing Act (FHA)
Key Provisions: Arrests vs. Convictions
- 3.1 How Arrests Are Treated
- 3.2 How Convictions Are Evaluated
The Individual Assessment Requirement
- 4.1 Factors to Consider in Individual Assessments
Prohibited Practices: Avoiding Discrimination
Exceptions to the Rule
Enforcement: HUD's Role in Compliance
The November 2025 Rescission: What Changed
State and Local Protections
Conclusion
References

1. What is HUD's Criminal Records Guidance?#

HUD's Guidance on the Use of Criminal Records in Housing was first issued in 2016 by HUD's Office of General Counsel. The guidance clarified how the Fair Housing Act applies to the use of criminal history by housing providers. Its primary goal was to prevent "disparate impact" discrimination—where neutral policies (like blanket bans on people with criminal records) disproportionately harm protected groups under the Fair Housing Act (FHA), such as race, national origin, or religion.

The guidance was not a law itself, but it interpreted existing federal laws (like the FHA) and provided actionable steps for compliance. It applied to most housing providers, including public housing authorities, private landlords, and housing funded by federal programs (e.g., Section 8).

In November 2025, HUD rescinded this guidance along with two related documents, signaling a policy shift toward giving housing providers more latitude in criminal history screening. However, the underlying Fair Housing Act requirements remain unchanged.

2. Legal Basis: The Fair Housing Act (FHA)#

To understand the regulatory framework, it's essential to first grasp the Fair Housing Act (FHA), which prohibits discrimination in housing based on seven protected characteristics: race, color, religion, sex, national origin, familial status, and disability.

A key FHA principle is "disparate impact": even if a policy seems neutral (e.g., "no one with a criminal record can rent"), it may still be illegal if it has a disproportionately negative effect on a protected group and lacks a "substantial, legitimate, nondiscriminatory interest" (e.g., ensuring tenant safety). The U.S. Supreme Court affirmed in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015), that disparate impact claims are cognizable under the Fair Housing Act.

While HUD's prior guidance helped housing providers navigate these standards, the Fair Housing Act itself—and the disparate impact framework—continues to apply regardless of the rescission.

3. Key Provisions: Arrests vs. Convictions#

HUD's now-rescinded guidance drew a sharp distinction between arrests and convictions, as they have very different legal weight. While the guidance has been rescinded, these distinctions remain relevant because they reflect longstanding legal principles and are incorporated into many state and local laws.

3.1 How Arrests Are Treated#

An arrest is not proof of guilt. Under the now-rescinded HUD guidance, and under the legal principles that informed it:

Housing providers were discouraged from denying housing based solely on an arrest record. Arrests may result from unproven allegations, and many do not lead to convictions. Using arrests as a screening tool risks penalizing individuals who were never found guilty—and may raise disparate impact concerns under the FHA.
If an arrest is followed by a conviction, the conviction (not the arrest) is the relevant factor. For example, an applicant arrested for theft but later acquitted cannot be denied housing based on the arrest alone.

Note: Several state and local laws explicitly prohibit the use of arrest records (without convictions) in housing decisions. Housing providers should check applicable jurisdiction-specific requirements.

3.2 How Convictions Are Evaluated#

Convictions can be considered, but screening policies should be tailored to the legitimate interest of ensuring tenant safety. HUD's prior guidance emphasized that even convictions must be evaluated carefully to avoid discrimination. A blanket prohibition on anyone with any conviction record—without regard to the nature, severity, or recency of the offense—is unlikely to survive a legal challenge under the FHA's disparate impact standard.

4. The Individual Assessment Requirement#

HUD's prior guidance recommended—and many state and local laws now require—that housing providers conduct an individual assessment before denying housing based on a criminal conviction. This means treating each applicant as a unique case, rather than applying a one-size-fits-all rule.

Even after the federal guidance was rescinded, individualized assessment remains a best practice and a legal requirement in several jurisdictions.

4.1 Factors to Consider in Individual Assessments#

When evaluating a conviction, housing providers should consider:

a. Nature and Severity of the Crime#

Violent crimes (e.g., assault, arson) or sex offenses may pose a greater risk to community safety than non-violent crimes (e.g., petty theft, drug possession for personal use).
Crimes that directly threaten the safety of other residents or the property (e.g., murder, sexual assault, arson) are more likely to justify denial than offenses with no direct connection to housing safety.

b. Time Since the Conviction#

Recency matters. A conviction from 10 years ago is generally less relevant than one from 1 year ago. There is no strict federal timeline, but longer periods of good behavior suggest rehabilitation.

c. Evidence of Rehabilitation#

Applicants may provide proof of rehabilitation, such as:
- Completion of probation, parole, or a rehabilitation program.
- Employment history post-conviction.
- Letters of reference from employers, counselors, or community leaders.
- No subsequent arrests or convictions.

d. Age at the Time of the Offense#

Juvenile offenses are generally given less weight, as young people are more likely to reform.

5. Prohibited Practices: Avoiding Discrimination#

Even after HUD's November 2025 rescission, certain practices remain legally risky under the Fair Housing Act:

Blanket bans on all individuals with criminal records: Phrases like "no felons allowed" or "no criminal history" may still give rise to disparate impact claims under the FHA because they disproportionately affect Black and Latino individuals, who are overrepresented in the criminal justice system.
Overly broad criminal record checks: For example, considering sealed or expunged records, or arrests that did not lead to convictions, may violate state or local law and could support an FHA claim.
Disparate treatment: Applying different standards to applicants based on protected characteristics (e.g., being stricter with Black applicants who have a conviction than white applicants with the same record) violates the FHA regardless of any HUD guidance.

6. Exceptions to the Rule#

There are limited circumstances where criminal history may be used to deny housing:

Sex Offender Registries: Housing providers may deny housing to individuals required to register under state or federal sex offender laws (e.g., Megan's Law), as these laws explicitly prioritize public safety.
Federal Program Requirements: Some federal housing programs have mandatory denial standards. Under HUD regulations, public housing authorities must deny admission to applicants who were evicted from federally assisted housing within the past three years for drug-related criminal activity, who are currently using illegal drugs, or who were convicted of manufacturing methamphetamine in federally assisted housing. Individuals subject to lifetime sex offender registration must also be denied.
State or Local Laws: If a state or local law requires denial based on a specific conviction (e.g., violent felony), housing providers must comply. Conversely, where state or local laws impose greater restrictions on the use of criminal records (such as requiring individualized assessments), providers must follow those requirements as well.

7. Enforcement: HUD's Role in Compliance#

HUD enforces the Fair Housing Act through investigations and legal action. If a housing provider is accused of violating the FHA (e.g., using a criminal record policy with discriminatory effects), HUD may:

Conduct an investigation.
Mediate between the applicant and provider.
File a lawsuit on behalf of the applicant, seeking damages or policy changes.
Publish the provider's non-compliance, harming their reputation.

Housing providers can proactively avoid issues by:

Reviewing and updating screening policies to ensure they are narrowly tailored and legally defensible.
Training staff on consistent application of screening criteria.
Documenting the reasons for denial (e.g., "denied due to 2024 conviction for assault, which poses a safety risk to other residents").
Monitoring for changes in federal, state, and local requirements.

8. The November 2025 Rescission: What Changed#

On November 25, 2025, HUD Secretary Scott Turner published a letter to Public Housing Authorities and owners of HUD-assisted multifamily housing that significantly shifted the federal regulatory landscape:

What Was Rescinded#

HUD formally withdrew three prior guidance documents:

Notice PIH 2015-19: "Guidance for Public Housing Agencies and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions."
2016 OGC Guidance: "Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions."
2022 FHEO Memo: "Implementation of the Office of General Counsel's Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions."

What the New Letter Emphasizes#

The November 2025 letter instructs housing providers to:

Screen for criminal history prior to admission into HUD-assisted housing.
Monitor assisted households to remove individuals that pose a threat to safety and peaceful enjoyment.
Deploy resources to ensure ongoing safety through physical security features and contracted safety services.
Exercise both mandatory denial standards (e.g., sex offender registration, methamphetamine manufacturing convictions, recent drug-related evictions from federally assisted housing) and permissive screening authority to evaluate suitability.
Publicly display the HUD Office of Inspector General Hotline (1-800-347-3735) for reporting fraud, waste, abuse, and criminal activity in HUD programs.

The letter also re-emphasizes HUD's "One Strike and You're Out" policy, which calls for strict, fair, and uniform enforcement of lease provisions against all violators.

What Has NOT Changed#

The Fair Housing Act remains in full effect. Discrimination based on race, color, religion, sex, national origin, familial status, or disability—including through policies with disparate impact—is still illegal.
Mandatory denial standards under HUD regulations (e.g., lifetime sex offender registration, methamphetamine manufacturing convictions) remain unchanged.
State and local laws imposing additional restrictions on criminal record screening continue to apply.

9. State and Local Protections#

Even with the federal rescission, many state and local governments have enacted their own laws governing how criminal history can be used in tenant screening. Housing providers must comply with applicable jurisdiction-specific requirements, which may include:

Individualized assessment mandates: Some jurisdictions (e.g., New Jersey, New York City) require housing providers to conduct individualized assessments before denying housing based on criminal history.
Prohibitions on arrest-only denials: Several states prohibit using arrest records that did not lead to convictions as a basis for denial.
Lookback period limits: Some laws restrict how far back a criminal background check can go (e.g., seven years).
"Ban the box" requirements: Certain jurisdictions prohibit asking about criminal history on initial rental applications, deferring the inquiry until later in the screening process.
Notice and documentation requirements: Providers may be required to disclose their screening criteria, provide applicants with copies of background check reports, and give applicants an opportunity to dispute or explain records.

Examples of notable state and local laws include:

New Jersey Fair Chance in Housing Act: Prohibits landlords from asking about criminal history on initial applications and requires individualized assessments.
New York City Fair Chance for Housing Act (Local Law 24): Effective January 1, 2025, this law restricts the use of criminal background checks in housing decisions with limited exceptions.
Clean Slate laws: Several states have enacted automatic record-sealing laws that affect what information can be reported and considered in background checks.

Housing providers should consult with legal counsel to ensure their screening policies comply with all applicable federal, state, and local requirements.

10. Conclusion#

The regulatory landscape for criminal records in housing has shifted significantly. HUD's November 2025 rescission of its prior guidance gives housing providers broader discretion to screen applicants based on criminal history, but this discretion is not unlimited. The Fair Housing Act's anti-discrimination protections remain in full force, and state and local laws may impose additional restrictions.

Housing providers should:

Review and update screening policies in light of the federal rescission and any applicable state or local laws.
Continue to use individualized assessments as a best practice—even where not legally required—to reduce legal risk and promote fair outcomes.
Document all screening decisions carefully.
Stay informed about evolving federal, state, and local requirements.

For people with criminal records, access to stable housing remains a critical factor in successful reentry and community safety. Housing providers that balance reasonable safety screening with fair, consistent practices can protect their communities while supporting rehabilitation.

11. References#

U.S. Department of Housing and Urban Development. (November 25, 2025). Screening Criminal Responsibilities Letter. Available via HUD.gov or Nelson Mullins summary.
U.S. Department of Housing and Urban Development. (2016). Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions [now rescinded].
Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015).
National Low Income Housing Coalition. (December 8, 2025). HUD Secretary Turner Issues Letter Encouraging PHAs to Adopt More Restrictive Screening Practices.
Wallace, Richardson, Sontag & Le, LLP. (December 2025). HUD Criminal Screening Update.
Fair Housing Project of Legal Aid of North Carolina. (2016). HUD Issues Guidance on Criminal History and Fair Housing.
U.S. Department of Housing and Urban Development. Fair Housing Act Overview.