Housing advocates and policymakers across the country continue to push for restrictions on the use of criminal background checks during the rental application process. The goal is understandable: to help individuals with criminal histories gain access to housing and reduce barriers to reentry into society.
However, these well-intentioned policies often overlook a significant concern that directly affects housing providers, neighboring residents, and the public at large: landlord liability. (See Pressley, Tlaib Reintroduce Bill to Boost Housing Access for Folks with Criminal Records)
When a landlord rents a property, he or she is not simply providing housing to one individual. That decision can affect neighbors, other tenants, visitors, maintenance personnel, and the surrounding community. As a result, landlords have a legitimate interest in evaluating whether an applicant poses a significant risk to others.
The legal concept of "negligent leasing" has become an increasing concern in many jurisdictions. In certain circumstances, landlords have been sued after renting to individuals with known histories of violent criminal behavior who later harmed other tenants, guests, or members of the public. Plaintiffs often argue that the landlord either knew or should have known that the tenant presented a foreseeable danger.
This creates an impossible dilemma
On one hand, government agencies and advocacy groups increasingly pressure landlords to minimize or eliminate criminal background screening. On the other hand, if a violent incident occurs, the same landlord may face accusations that they failed to exercise reasonable care in selecting tenants.
The result is that landlords are often expected to absorb all of the risk while having fewer tools available to evaluate that risk.
Most landlords are not large corporations with legal departments and risk-management teams. Many are small business owners who own a handful of rental properties. They are simply trying to provide safe housing while protecting existing tenants and neighbors.
The issue is particularly important in multifamily housing. One tenant's actions can directly affect dozens of other residents. A violent assault, robbery, drug-related activity, or other criminal conduct can create significant safety concerns, property damage, and financial losses for everyone involved.
None of this means that every person with a criminal record should be denied housing. Many individuals successfully rebuild their lives and become excellent tenants. But landlords should retain the ability to evaluate each application individually and consider factors such as the nature of the offense, how long ago it occurred, evidence of rehabilitation, and the applicant's overall rental history.
Policies that remove or severely restrict criminal screening may sound compassionate in theory. In practice, they can shift substantial liability onto housing providers while potentially exposing tenants and communities to greater risk.
As lawmakers consider housing reforms, they should remember a simple principle: if landlords are expected to bear legal responsibility for the consequences of their leasing decisions, they must also be allowed to make informed leasing decisions.
Safe housing depends not only on access, but also on accountability, reasonable screening, and the ability to protect the people who already call a property home.
