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Congressman Dan Donovan

Representing the 11th District of New York


Donovan Blasts HUD Plan to Force Landlords to Accept Tenants with Criminal Records

April 26, 2016
Press Release
In letter to HUD, Donovan says property owners should be able to reject tenant applications from criminals without facing lawsuits

Staten Island, NY—April 26, 2016....Congressman Dan Donovan (NY-11) today blasted the U.S. Department of Housing and Urban Development’s (HUD) plan to punish homeowners who do not consider offering rental units to criminals. The new regulation, announced earlier this month, prohibits landlords from banning rental applicants with criminal records. If landlords fail to justify their decision to deny housing for criminals, they could face lawsuits for discrimination.

Congressman Donovan said, “Government has no business dictating that people accept criminals in their own homes. How does HUD expect landlords to provide a safe living environment when they cannot prohibit criminals? I wonder if Secretary Castro plans to rent his basement to a convicted murderer.”

The Fair Housing Act protects certain classes from housing discrimination. For example, property owners may not deny housing to applicants based on race, gender, religion, or national origin. HUD’s new regulation – which effectively adds “criminals” to the list of protected classes – is an erroneous interpretation of the law.

Donovan believes that homeowners should have the freedom to decide on their own whether to open their property to tenants with criminal convictions. HUD’s determination now subjects law-abiding citizens to punishment and lawsuits just for choosing not to accept criminals as tenants. The government already has restrictions on where criminals can live – for example, sex offenders may not reside near schools or day care facilities. Now, the federal government is saying its citizens cannot devise their own reasonable restrictions.

Donovan concluded, “This policy is an insult to basic American principles of freedom and private property rights. It is not the government’s role to subject its citizens to punishment because they choose not to entertain criminals as tenants.”

Donovan’s full letter to Secretary Castro is attached and copied below.

April 18, 2016

The Honorable Julián Castro
U.S. Department of Housing and Urban Development
451 Seventh Street, SW, Room 10120
Washington, DC 20410-1000

Dear Secretary Castro,

I write to express my deep concern over the policy memorandum published on April 4th of this year by The Department of Housing and Urban Development (HUD) in a memo titled Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transaction (hereinafter, “the memo”). This memo signals a disturbingly expansive departure from the limited authority granted to HUD by Congress. It also has the potential to open well-intentioned housing providers to yet-unknown regulatory and civil liability.

The Fair Housing Act (FHA) serves an important role in protecting people from discrimination in the sale, rental, or financing of housing on the basis of race, color, religion, sex, disability, familial status or national origin.  However, the memo makes clear that HUD is seeking to expand the scope of the FHA to cover criminal history despite the fact that persons convicted of a crime are obviously not a protected class within the FHA. To be clear, had Congress ever intended for such protection, it would have been enumerated in the FHA with the other protected classes.

Under the new policy announced in this memo, a housing provider who has a facially-neutral policy or practice that disqualifies potential tenants based even on specific crimes would still face the specter of costly litigation. Despite HUD’s admission in the memo that “[e]nsuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider,” a housing provider would still, under this policy, be forced to prove in court that it is a “substantial, legitimate, nondiscriminatory interest and that the challenged policy actually achieves that interest.” How do you expect a landlord to provide a safe living environment when they cannot have a policy that prohibits convicted criminals?

By disguising this new rule as a guidance memorandum instead of going through the normal rulemaking process, HUD has attempted to completely insulate itself from accountability and cut stakeholders from having the input that they are due under the law. In order to clarify this exceedingly ambiguous memorandum, please provide my office with answers to the following questions as soon as practicable but no later than May 2nd.

- Where in the FHA are convicted criminals listed as a protected class?
- Would a housing provider be required to consider the “nature, severity, and recency” of the convictions of a sex offender in order to avoid liability under your view of the law?
- If so, how do you expect a housing provider to navigate the litany of federal and state crimes and develop a policy that considers the nature, severity, and recency, of all of them?
- If not, how would you expect a housing provider to understand that from your memo?

Thank you for consideration of this important matter.


Daniel M. Donovan, Jr.
Member of Congress
11th District of New York