An important aspect of owning and managing residential rental property is using sound tenant screening practices. This requires obtaining sufficient information about prospective tenants to base your decision to rent to them. Information can be obtained directly from prospective tenants, your own efforts or by purchasing background checks from a third party. In California, you can deny renting to a prospective tenant with a criminal record if you comply with federal and state laws regarding fair housing and tenant criminal background checks.
Fair Housing Issues
Fair housing laws prohibit you from asking prospective tenants certain questions that could violate anti-discrimination laws. Both federal and California law prohibit questions about a tenant's sex, religion, national origin, race, disability and familial status. California law further prohibits questions about sexual orientation, gender-related issues, marital status, color, ancestry, immigration and citizenship status. Although neither federal nor California law prohibits questions about an applicant's criminal records, you can violate fair housing discrimination laws if you ask about such records in an improper manner. For example, if you ask applicants of a particular race or gender about criminal records rather than asking all tenants as a matter of policy, this is viewed as discriminatory conduct.
Tenant Criminal Background Checks
You can obtain a criminal background check regarding a prospective tenant from a third party, as long as you have the applicant's written consent. Tenant criminal background checks are treated the same as consumer credit reports under both federal and California law. In fact, the three national credit reporting agencies -- Equifax, Experian and TransUnion -- offer tenant reports that include publicly available criminal record data. If you choose to obtain such reports, you must do so for every applicant, or your conduct can be construed as discriminatory and in violation of fair housing laws. California law limits the amount you can charge an applicant to obtain the report. The amount is adjusted every year and as of July 2013 is $49.50.
Denying Rentals Over Criminal Records
Your policy for using criminal record information must be applied consistently and based on sound business reasons. For example, simply having a zero-tolerance policy and denying all applicants who have any type of criminal record is not a sound business reason -- that is, criminal record information alone does not indicate whether the applicant will make a good tenant. Because your rejection of all applicants with criminal records may result in disparate impact discrimination against certain protected groups, your policy may result in a violation of fair housing laws. Your criteria for rejecting applicants based on criminal records should be narrowly focused -- for example, limiting rejections to applicants with criminal records showing convictions for serious violent felonies.
No law requires you to perform criminal background checks on your prospective tenants. To perform a check on all applicants may not be practical or economical given California's limit on the amount you can charge the applicant for the report. Your best information regarding prospective tenants is the information indicating whether they can afford to pay the rent and their past histories with other landlords.
- Privacy Rights Clearinghouse: Employment Background Checks: A Renter’s Guide to Privacy -- What to Know Before You Sign the Lease, While You Rent, and When You Move Out
- California Tenants: A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities
- The Landlord Times: Use of Criminal Records When Screening Applicants -- Fair Housing Q & A
- California Apartment Association: Criminal Background Checks