When The Kelsey speaks to potential residents of affordable, disability-inclusive housing, the number one concern we hear is safety – everyone wants, and deserves, a safe place to live. At the same time, there are biases and stereotypes that many people have about what kind of housing is considered safe. Living in a community always comes with risks regardless of how your housing is funded and who your neighbors are. It’s the role of building owners and resident services providers to cultivate systems and supports that ensure resident safety. When utilizing public funding for housing there are strategies to ensure resident safety in housing. Simultaneously, adherence to federal fair housing laws and guidance ensures that all residents have equal access to a home and that the housing development’s policies and practices mitigate risks of bias and discrimination.

Fair housing laws are designed to prevent discrimination in all types of housing, whether publicly financed or not, to ensure that everyone has equal access to housing opportunities. Housing built either through the LIHTC program or through private financing is subject to these laws, meaning that all developers and property managers must carefully navigate tenant selection to avoid discriminatory practices. Federal laws prohibit discrimination based on race, color, religion, sex, national origin, disability, and familial status.

The federal Low-Income Housing Tax Credit (LIHTC) program as well as subsidies from the Department of Housing and Urban Development (HUD) play a crucial role in providing affordable housing options to individuals and families, including for those living with disabilities. It provides developers with tax credits to help finance the construction or renovation of affordable rental housing (for a broader overview of this program, please see LIHTC Learn Center Article). One aspect of using LIHTC is developing a tenant selection criteria when evaluating applicant backgrounds for safety concerns in their personal histories. LIHTC developments endeavor to provide safe and supportive environments for all residents, including those with support needs, through resident services, proactive safety measures, and adherence to federal fair housing guidelines. All residents, regardless of background, deserve a safe, affordable, inclusive home. By upholding fair housing principles, LIHTC developments contribute to diverse and inclusive communities, prioritizing resident safety and community diversity as fundamental commitments. Developers of LIHTC projects do not need to choose between LIHTC funding and resident safety – this article will show you how both can be achieved with proper planning.  

In adherence to fair housing guidelines, LIHTC and publicly funded communities cannot handpick “ideal residents” through interviews. Handpicking residents or doing open-ended screening often results in bias, discrimination, or subjective misconceptions about residents. Interviews may be used as part of the tenant selection process, including for individualized assessments of applicants with criminal histories, aligning with fair housing principles as long as they employ objective criteria to assess whether a safety risk truly exists. This practice is intended to be utilized in all types of housing – whether privately or publicly financed. 

To uphold both fair housing principles and resident safety, property owners and operators can implement individualized assessments of applicants with criminal backgrounds, taking into account the above-mentioned factors to determine holistically whether actual safety risks exist. Such procedures allow the property owner to retain a degree of control over tenant selection to ensure resident safety without running afoul of fair housing laws or principles. Offering equal housing access and maintaining resident safety is not a binary choice – both can and must be accomplished to house those who have historically faced barriers to obtaining housing, whether due to disability, race, ethnicity, gender, sexuality, language, and/or other marginalized identities or personal histories. 
In order to ensure that tenant selection criteria truly are aimed at mitigating actual, objective safety risks in a community, HUD has suggested best practices for the implementation of screening procedures for residents with criminal histories, including the following:

While federal law does not explicitly forbid the use of criminal background screening in housing policies, the U.S. Department of Housing and Urban Development (HUD) has provided guidance on how the Fair Housing Act pertains to such screenings.

HUD acknowledges the existence of racial and ethnic disparities within the criminal justice system. Specifically, there are disproportionate rates of arrests and convictions for, as well as the imposition of harsher sentences on, African American and Latinx individuals. These inequities result in a disparate impact on these protected classes when attempting to access housing, potentially constituting a violation of the Fair Housing Act. “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics,” a 2016 HUD study concluded. Moreover, there is a disproportionate number of African Americans, Latinx, and people of color with disabilities who are caught in the criminal legal system and/or are currently incarcerated in jails, prisons, and other carceral settings. Therefore removing discriminatory barriers to people with criminal histories will actually increase housing access for those who need it most, as discussed in a 2022 Urban Institute study. Consequently, HUD has issued guidance applicable to both LIHTC and non-LIHTC housing to address and mitigate this housing impediment while maintaining safeguards to protect all residents, especially those living with disabilities.

The guidance from HUD explicitly forbids: (1) the rejection of rental applications solely on the grounds of the existence of arrest records, (2) overarching prohibitions against individuals with a criminal history, and (3) the arbitrary or biased implementation of background checks rooted in stereotypes or unfounded fears. Furthermore, property owners and operators are required to assess individuals on an ad hoc basis, taking into account the specific nature and severity of the offense committed and considering the time that has elapsed since the incident occurred, as well as evidence of rehabilitation. Ultimately, any conclusive decisions must be grounded in articulable facts and evidence, rather than subjective perceptions of potential ‘threats.’

Operators and property managers must evaluate tenant applications without violating fair housing principles, while also prioritizing the safety and well-being of the community. In taking this approach, they can successfully thread the needle of ensuring equal access to housing while protecting all residents to forge a thriving interdependent and inclusive community.

Many landlords check applicants’ criminal histories before renting to them. However, refusing to rent to someone based solely on the existence of a criminal record is explicitly against HUD guidance. As discussed above, it affects some protected classes more than others, which could violate the laws and regulations of fair housing. If landlords utilize methods that prevent certain protected classes, in comparison to others, from finding homes, they could be exposed to liability. Even though the law does not mandate individualized assessments, the government strongly recommends a more nuanced approach in order to uphold fair housing laws and increase equal housing opportunities for all people, regardless of their histories with the criminal justice system. 

Perhaps most importantly, strong resident services play a pivotal role in fostering safe communities within LIHTC developments. By cultivating relationships with all residents and maintaining open lines of communication, property managers and resident services staff can effectively identify and intervene in activities that pose safety risks, irrespective of the individuals involved. Whether it’s addressing disruptive behaviors that threaten community cohesion or promoting community-building initiatives, a proactive approach to resident services ensures that all tenants feel valued and supported while upholding standards of respect and inclusivity. By prioritizing the well-being of residents and the integrity of the community, affordable housing developments, including LIHTC communities, can thrive as vibrant, secure spaces for individuals and families in need of affordable housing.

Prioritizing fair housing laws and resident safety in LIHTC developments requires thoughtful consideration and a nuanced approach to tenant selection. By adhering to the guidance provided by HUD, implementing individualized assessments, and fostering community engagement, property managers can create inclusive and secure environments that uphold the principles of fair housing while prioritizing the well-being of all residents. It is also important to bear in mind that the Fair Housing Act and related HUD guidelines are applicable both within and outside of the LIHTC program. 

We hope this article will inspire readers to dig deeper into increasing housing access and resident safety for all, including the over 77 million Americans with histories in the criminal legal system. To learn more, here is a sample list of organizations and initiatives to follow: 

For more information on building resident services programming that include safety supports, you can find them in these Learn Center Resources: