Be advised: Seattle’s Fair Chance Housing Ordinance (FCHO) bars landlords from considering prior arrest records or past convictions when screening prospective tenants. This includes prospective renters who are registered sex offenders.
Anti-discrimination policies benefit the common good. However, such policies can create conflict when landlords have a duty to protect their tenants from foreseeable criminal conduct. Therefore, the Fair Chance Housing Ordinance presents potential complications that could unintentionally place landlords in legal jeopardy — even if landlords that have the best intentions in mind.
As a real-estate attorney with Holmquist + Gardiner, I specialize in transactions involving mixed-use development properties and landlord-tenant issues. I routinely advocate for residential property managers seeking clarification of their rights under the FCHO. This law presents a tricky balancing act for property managers if certain scenarios occur. Below, I answer a few questions to help landlords effectively navigate the law:
During the screening process, what questions may I ask prospective renters about their possible criminal histories?
Seattle landlords are prohibited from requesting criminal background checks during the screening process. However, landlords may request information to determine whether a prospective tenant is a registered sex offender. If you, the landlord, choose to screen for registry information, you must offer the relevant individual the opportunity to provide additional information about their past offenses as mitigating circumstances. Necessary information includes: details on their good conduct, evidence of successful rehabilitation, and any additional explanation of their prior crime(s).
Requesting this additional information can be beneficial. It provides additional clarity into the individual’s past offense(s). But in the case of the Fair Chance Housing Ordinance, the good faith action you take with such information could cause headaches down the road. We need to dig a little deeper to understand why.
Under what scenario can I take adverse action under the new law?
Seattle landlords require proof of a “legitimate business reason” in order to take an adverse action against a registered sex offender that is a potential resident. Unfortunately, the burden falls on landlords to prove that they risk losing measurable business. Specific and reliable evidence must be provided to Seattle’s Office of Civil Rights that clearly demonstrates a connection between the FCHO as law, and the landlord’s inability to maintain property and resident safety.
Publicly available through the Office of Civil Rights website, the Fair Chance Housing Ordinance includes a list of criteria to consider when contemplating adverse action, yet no well-defined minimum rule exists to use as a baseline for justification to deny tenancy without committing discrimination. Property managers are given a very narrow window to take action, and it can get expensive, too. The remediation process can only occur after a charge has been made against a landlord which increases the likelihood of litigation as a means to resolve the conflict. One of my main critiques of this law is that it puts landlords in a position where they may be financially punished for trying to protect their business and existing tenants.
How can landlords attempting to protect clients from foreseeable criminal conduct unintentionally enter legal jeopardy through the Fair Chance Housing Ordinance?
When considering ways to protect residents from foreseeable criminal conduct, some actions might appear proactive, yet may place landlords in legal jeopardy:
1.) Posting notices in common areas that a convicted sex offender resides on the property
We can determine the legality of the above action with help from the 1999 case, Griffin v. West RS, Inc. In this case involving an assault that took place in an apartment, it was questioned whether the property manager unit owed a duty to protect or warn tenants about foreseeable criminal conduct. The court concluded that landlords owe such a duty when the threat is related to an area of the premises under the landlord’s control. Arguably, then, a landlord may have a duty to inform existing residents that a registered sex offender may be moving into the building.
So post away, correct? Not so fast.
The Griffin ruling appears to provide permission to post warnings about residents with criminal histories on a property’s common spaces. However, posting a warning in common areas becomes an adverse action as soon as a tenant chooses to file a complaint. This presents a significant risk for landlords and this action should be considered with extreme caution.
2.) Distributing notices warning residents privately via mail or other method
If posting a warning in a common area can be dangerous, what about delivering notices privately to individual tenants? This action is likely to be viewed as an adverse action as well. Mailings are a more active form of communication and make it easier for a complainant to allege targeted harassment.
Understanding the mechanics of the Fair Chance Housing Ordinance is one thing, but navigating the anti-discrimination law, while protecting residents from foreseeable criminal conduct, presents a difficult challenge. If you’re a landlord and you find yourself in a scenario where you’re considering what could be an adverse action against an individual with a criminal background, it’s recommended that you contact a real-estate attorney before taking any decisive action. It could save you from legal trouble or financial burden down the road.
The talented attorneys at Holmquist + Gardiner are experts at navigating the complex real-estate laws affecting our clients. Whether you’re a tenant or a property manager, we value your individual concern and act accordingly to help resolve your matter in a prompt and cost-effective manner.
We’re up-to-date on the latest rules impacting Seattle’s construction and real-estate industries. If you’re interested in reaching out to an attorney on our team, contact us today.