All landlords in Cook County should revisit their tenant screening process before the Just Housing Amendment (“JHA”) goes into effect on December 31, 2019.  
 
Prior to the passage of the JHA, Cook County landlords could ask applicants to disclose their criminal history before taking an application.  And landlords could refuse to show or lease an apartment for rent solely on the basis of an applicant’s criminal record.  But according to the civil rights advocates who advocated for the JHA, this type of blanket housing discrimination leads to greater recidivism, homelessness, and family instability, and is unfair to those who do not pose a risk to personal safety or property.  The JHA doesn’t require landlords to rent an apartment to just anyone with a criminal record, and certainly not to sex offenders – but it does require landlords to give applicants a fair chance.  In particular, the JHA aims to help applicants find housing if their criminal background is limited to arrests, juvenile records, expunged or sealed records, or if the applicant can show that he or she is not a risk to other tenants or the property itself.  
 
As of December 31, 2019, all Cook County landlords must comply with the JHA.  Enforcement of the JHA begins in earnest January 31, 2020. Domu is not a lawyer nor a substitute for one, and we encourage landlords to consult an attorney about their tenant screening practices.  We offer the following general information to help landlords understand how and when they may consider a potential tenant’s criminal background.

How does the Just Housing Amendment change the application and tenant screening processes?

At a minimum, Cook County landlords and brokers should be aware that as of December 31, 2019, it is unlawful to deny housing or change the terms of the rental agreement because of an arrest record, juvenile record, or a conviction that has been expunged, sealed, or pardoned.  (See Section 42-38 of the Cook County Civil Rights Ordinance, which states that an applicant’s “Covered criminal history,” meaning information about an “individual’s arrest, charge or citation for an offense; participation in a diversion or deferral of judgment program; record of an offense that has been sealed, expunged, or pardoned  . . .  or juvenile record,” cannot be the basis of an “distinction, discrimination, or restriction in the price, terms, conditions, or privileges of any real estate transaction”).

It also affects how landlords advertise their rental listings in Cook County. Housing providers may not say "no felons," "no sex offenders," "no convicted drug dealers," "no criminal history," or "no arrest history" in their advertisements. 
 
But certain details of the JHA are not yet clear, as we’re still waiting for the Just Housing Amendment Interpretive Rules to define certain rental application procedures required by the JHA. According to the current version of those regulations, which were proposed to the Rules Committee on November 20, 2019, landlords and their representatives cannot take a rental application fee from a potential tenant before disclosing the “tenant selection criteria,” meaning the metrics for evaluating whether the applicant qualifies for the housing (see Section 720.140).  Here at Domu, we could not discern whether the Commission intends to require landlords to disclose all tenant selection criteria – such as a requirement of a certain minimum credit score or income -- or whether the Commission desires the rental application to define a limited criteria relating to criminal convictions. Domu suggests that the Commission refine the definition in the current version of the Interpretive Rules!
 
Next, check your tenant screening form.  If it your stock application form asks applicants to disclose their criminal histories, then recycle it and draw up a new form.  As of December 31, 2019, Chicago landlords must pre-screen tenants before requesting a criminal history. If the applicant passes your lawful provisional review, then you must notify the applicant that he or she has pre-qualified and you may request a criminal background check.  

Can Cook County landlords deny housing on the basis of certain types of criminal records?

No.  According to Section 730.130 of the current version of the Just Housing Amendment Interpretive Rules, landlords may not consider convictions that are more than three years old, with one major caveat: no landlord is required to rent to a person with a conviction requiring current sex offender registration or current child ex offender residency restrictions. If the background check reveals that the potential tenant has a conviction that requires sex offender registration or residency restrictions, the landlord must provide the applicant with notice, within five days of receipt of the evidence of the conviction, of that evidence.  The applicant must be provided five days to dispute the accuracy of the conviction.  
 
Some Cook County landlords have opposed the JHA because it would require them to rent an apartment to a person with a four year old conviction.  But the Cook County Department of Human Rights and Ethics has determined that convictions (other than those requiring current sex offender registration or residency restrictions) do not demonstrate a “likelihood of harm to other residents’ personal safety and/or likelihood of serious damage to property,” see Section 720.120 of the Cook County Department of Human Rights and Ethics’ Just Housing Amendment Interpretive Rules (“JHA Rules”), and therefore may not be considered.

Must a landlord rent to an applicant with a recent conviction for a violent crime? 

It depends.  If the applicant’s criminal background check reveals a conviction form the past three years, the housing provider must, within five days of receipt of the background check results, provide a copy of the criminal conviction record to the applicant. The housing provider must wait for five days while the applicant disputes the conviction or its relevance. Then, within three days of receipt of the applicant’s evidence of mitigating circumstances, the housing provider must assess whether the applicant poses a risk to personal safety or property.  Housing providers should consider, according to Section 720.130 of the JHA Rules, the nature and severity of the criminal offense and how recently it occurred, the nature of the sentencing, the number of the applicant’s criminal convictions, the length of time that has passed since the most recent conviction, the age of the individual at the time of the offense, evidence of rehabilitation, and the individual’s history as a tenant before and/or after the conviction.  If the housing provider decides to deny housing, the landlord must provide a written letter to the applicant to describe the reasons for the denial as well as a link to the Commission’s website with the address and phone number of the Commission.

Read more about the Human Rights Ordinance and find frequently asked questions about the JHA for landlords and applicants at Cook County's website.
 
The key takeaways:

  1. Housing providers in Cook County may not consider a history of arrests, juvenile records, or expunged, sealed or pardoned records.
  2. Tenant screening must take place as follows: (a) advise applicants of the “tenant selection criteria,” (b) pre-qualify applicants without consideration of criminal history, (c) for those who pre-qualify, request a criminal history background check, (d) if the applicant has a criminal record of convictions, provide an opportunity for the applicant to question the accuracy and/or relevance of the criminal history (e) conduct an individualized assessment of convictions from the previous three years (except for convictions that require sex offender registration, which are a lawful basis to deny housing).  Housing providers must protect the confidentiality of applicants regarding their criminal histories.
  3. The implementing regulations appear to reach beyond the JHA by precluding housing providers from considering convictions (other than sex offender convictions) that are more than three years old, but those regulations have not yet been ratified.

Domu intends to provide updates as Cook County amends and eventually ratifies the JHA implementing regulations.  In the meantime, if you have questions, contact the Cook County Human Relations Committee.