Every landlord has to deal with arrests at some point. For some, that day comes when you’re in the management office and look outside to see a convoy of police cars rolling onto your property with lights on and sirens blaring. Shortly thereafter, the officers are leading one of your tenants away in cuffs, for everyone to see. For others, the experience is not quite so dramatic, as you only deal with arrests on paper, typically when a criminal background check on an applicant shows a history of arrests. So what do we do when confronted with the arrest or arrest record of a tenant or applicant?
The United States Department of Housing and Urban Development, known throughout the land simply as “HUD”, recently issued a statement on the subject to guide owners of federally assisted housing on the use of arrests and arrest records in housing decisions. Now, DO NOT TUNE OUT if your property is not federally assisted. While the statement may not directly affect landlords whose properties do not receive federal assistance, the principles in the notice apply to everyone who owns or manages rental property.
You can find the full text of the notice here. A primary purpose of the notice is to inform owners that they may not use arrest records to deny admission, terminate assistance, or evict tenants. The notice correctly points out that before a landlord may take any of these actions as a result of criminal activity, it must first have sufficient evidence that the individual actually engaged in the criminal activity. In other words, you must have evidence that the person actually committed a crime.
However, the fact that an individual was arrested and charged with a crime is NOT evidence that the person committed a crime. Arrests, citations, charges, and indictments are not evidence that a person committed a crime. Instead, these are only allegations or claims that the person committed a crime. Now, because an arrest leads to people being taken away in handcuffs, arrests often connote more than a mere allegation. I mean, if the person is innocent, why is he being handcuffed and taken to jail?
It is true that police officers are supposed to have “probable cause” to believe the person committed a crime before they arrest him. However, this is not always the case, and the law provides that arrested persons, in certain circumstances, have a legal claim against the government for malicious prosecution if arrested and prosecuted without probable cause.
The HUD notice makes clear that arrests are merely allegations. Sometimes, these allegations are supported by evidence and the person is ultimately convicted of a crime. It provides statistics that large numbers of arrests do not result in convictions or guilty pleas, with many of them being dismissed altogether. Further, a significant number of arrests do not result in criminal charges at all.
While all of this is true, and must be remembered, it is also frequently true that “where there's smoke, there’s fire”. A lengthy record of arrests in which the person did nothing wrong would be an almost unbelievable amount of bad luck. While many arrests never lead to charges or convictions, the reason for this is, in many cases, the result of witnesses refusing to talk or mistakes by the police officers in gathering or handling the evidence, not because the person didn’t commit the crime.
So, give an arrest record its proper place, which is as a signal that there might be a problem. As landlords, when we find out that a tenant or applicant has been arrested for an act that would serve to deny admission to our property or would be a violation of our lease, our role is to investigate the matter to determine if the person actually engaged in the conduct that would disqualify him. As HUD correctly notes, “the conduct, not the arrest, is what is relevant for admission and tenancy decisions”.
For admissions, we need to find out if there is sufficient evidence to believe the person engaged in the conduct that constitutes a crime. A conviction or guilty plea is certainly sufficient evidence, but is not a requirement. HUD advises that landlords may use police reports, witness statements, and other evidence to determine whether the person actually engaged in the disqualifying conduct.
For evictions, we are also seeking to determine whether the conduct actually occurred. In court, we will have to prove, by a preponderance of the evidence, that the tenant engaged in conduct that constitutes a material violation of the lease. A “preponderance of the evidence” is much less than “beyond a reasonable doubt”, which is the standard requirement to convict a person of crime. A preponderance of the evidence simply means a majority of the evidence, or that it’s more likely than not that the person committed the lease violation. As a result, we don’t need to prove that the person was convicted or pled guilty to a crime, as the standard in criminal court is much higher. We just need to prove that it’s more likely than not that the tenant committed the act. Still, we have to remember, an arrest is not proof.
First, make sure your leases and resident admission criteria don’t make an arrest a disqualifying event. Convictions, guilty pleas, no contest pleas, and Alford pleas may be used to disqualify applicants or evict tenants, as these are either final determinations or admissions or guilt, or situations where the person did not contest the charge and accepted punishment for the alleged conduct. Keep your policies and criteria focused on improper conduct, not arrests, which may or may not be an indicator of improper conduct.
Second, scrutinize arrest records as part of your determination of disqualifying activity has occurred. HUD and I disagree on this point. HUD believes the best practice is to limit your screening to conviction records. I think that practice throws the baby out with the bathwater, as arrest records can bring your attention to a situation that needs further investigation, whether or not a conviction actually occurs thereafter.
Finally, if you learn that your tenant or applicant has been arrested for activity that would disqualify him from occupancy, that’s your signal to look into the matter further. In some cases, you’ll find that the person did something that disqualifies him. In such cases, follow your policy to either deny admission or begin the eviction process. In other cases, you’ll find that there’s no reason to believe the person did anything wrong, despite being arrested. In those cases, you can disregard the arrest once you’ve investigated the matter.
If you are unsure or have questions, contact your friendly neighborhood attorney.