How Crime-Free Rental and Nuisance Ordinances Can Violate Federal Law

DOJ warns against discriminatory housing ordinances.

The Civil Rights Division of the U.S. Department of Justice recently issued a letter to state and local law enforcement and government agencies addressing how “crime-free” rental-housing and “nuisance” property ordinances may violate federal laws. The letter explains how following these ordinances, intended to reduce criminal activity at rental sites, can often lead to unintended consequences, such as discriminating against vulnerable groups like people of color, individuals with disabilities, and survivors of domestic violence.

These policies typically target rental sites with frequent disturbances or criminal activity, holding residents and owners accountable through fines, evictions, or other penalties. For example, if a resident or someone in the household calls 911 multiple times, they can be found in violation of a nuisance ordinance, and the rules may say they must leave their apartment or be evicted. Owners may feel required to enforce these ordinances even when it leads to unfair or harmful outcomes for certain residents.

While these ordinances aim to reduce crime and disturbances in communities, the DOJ has raised significant concerns about fairness and the protection of tenant rights in their implementation. We’ll take a look at the characteristics of these crime-free or nuisance policies and how these local policies may conflict with federal law. We’ll also discuss avoiding blanket restrictions and the need to assess disturbances at your site on a case-by-case basis.

Crime-Free Rental Housing, Nuisance Property Ordinances

In the 1990s, many cities started enacting crime-free rental ordinances to discourage criminal behavior. The policies served to warn residents that any involvement with the police could threaten their housing. If an owner failed to enforce these ordinances by not addressing residents associated with 911 calls, the city could impose fines or revoke the owner’s licenses. These ordinances also targeted renters with arrest records, even though an arrest alone doesn’t prove that a crime was committed.

The DOJ’s recent letter to local governments stated that crime-free rental housing and nuisance property ordinances are discriminatory and argued that they disrupt lives and force families into homelessness. Because the ordinances disproportionately affected low-income people of color, they could violate federal law.

The letter identified practices or features that these policies require or encourage owners to do:

• Evict, or impose other adverse housing consequences on, tenants and households based on tenants’ or guests’ alleged criminal activity, including through “crime-free” addenda to leases;
• Impose blanket rejections of rental housing applicants if background screening shows a criminal history or past calls for emergency or law enforcement assistance;
• Evict, or impose other adverse housing consequences on, tenants and households based on calls for emergency or law enforcement assistance; or
• Designate medical or disability-related calls for service as a “nuisance,” or publicize confidential medical information from a call for service.

One of the critical concerns with these ordinances is that they can disproportionately affect survivors of domestic violence. Calls for emergency services related to domestic violence can be classified as nuisances, putting survivors at risk of eviction if they seek help.

This creates a dilemma for survivors, who may be forced to choose between their safety and their housing stability. And these laws may actually exert pressure on owners to exclude and evict them, which the federal Violence Against Women Act prohibits. And, as we’ll see, following these local nuisance ordinances does not insulate owners against fair housing liability. 

Conflicts with Federal Law

The DOJ letter highlights how crime-free rental housing or nuisance property ordinances may violate federal laws.

Fair Housing Act. The DOJ says these policies may intentionally discriminate against protected groups, which violates the Fair Housing Act (FHA). They may have a disproportionate effect on certain groups overrepresented in the criminal legal system and rental housing market, such as Black and Latino individuals or individuals with disabilities. And they may also negatively impact domestic violence survivors, who are disproportionately women, by punishing them for seeking emergency or law enforcement assistance.

According to HUD’s recent guidance, policies that may raise questions under the FHA include ones:

• With criminal history-based restrictions;
• Based only on an arrest record;
• Based only on a call for emergency or law enforcement assistance;
• That fail to provide for an individualized determination of purported safety concerns, including for individuals with convictions;
• That impose adverse housing consequences on an entire household;
• That provide substantial enforcement discretion that is then used to target certain people protected under federal law; and
• That were adopted with discriminatory intent such as limiting the Black or Latino population, which may be evidenced by the historical backdrop, including growing diversity or racial tension.

Example: A case that the DOJ settled against the city of Hesperia in California in December 2022 shows how its crime-free program and ordinance violated the FHA. Hesperia’s program, supported by the local sheriff’s department, initially mandated and later made voluntary, required owners to:

• Evict tenants or guests for any alleged criminal activity, regardless of arrest or conviction.
• Include “crime-free” lease addenda allowing eviction for supposed criminal activity.
• Screen applicants for prior criminal activity and violations of the “crime-free” program.

Enforcement of the ordinance led to hundreds of evictions, disproportionately affecting Black and Latino renters, affecting many who had never been arrested, charged, or convicted. Studies showed that the program didn’t reduce crime rates.

The DOJ settlement required Hesperia to completely repeal the program and allocate nearly $1 million for remedies. This included compensating those harmed, paying civil penalties, providing notifications about the program’s repeal, implementing nondiscrimination policies, and funding fair housing efforts and community partnerships.

Violence Against Women Act. Since the 2013 amendments, the Violence Against Women Act (VAWA) has applied to the LIHTC program. In its letter, the DOJ pointed out that these programs may also violate VAWA as the law prohibits certain aspects of these programs.

First, these programs might infringe on VAWA protections, especially those added in a 2022 amendment, which ensure the right to report crime and emergencies from a person’s home. This provision of the law directly addresses nuisance ordinances that may discourage survivors from calling for police or emergency assistance out of fear of penalty.

VAWA explicitly states that “[l]andlords, homeowners, tenants, residents, occupants, and guests of, and applicants for, housing . . . shall have the right to seek law enforcement or emergency assistance on their own behalf or on behalf of another person.” VAWA also says individuals “shall not be penalized based on their requests for assistance or based on criminal activity of which they are a victim or otherwise not at fault under statutes, ordinances, regulations, or policies adopted or enforced by covered governmental entities.”

The penalties that VAWA prohibits for these protected activities that often appear in crime-free and nuisance programs include:

• Criminal penalties;
• Fines or fees;
• Eviction;
• Refusal to rent;
• Refusal to renew tenancy;
• Refusal to issue an occupancy or landlord permit;
• Closure of a property; or
• Designation of the property as a nuisance or other negative labels.

Avoid Blanket Restrictions, Zero-Tolerance Policies

The DOJ letter to law enforcement agencies and state and local governments on rental housing protections under federal law serves as a reminder to owners to reevaluate site policies because failure to comply with fair housing law could lead to legal consequences. Blanket restrictions, such as those based solely on criminal history or 911 calls, may be unlawful. Owners should assess situations individually, considering the context and severity of each case rather than applying broad, punitive measures.

Zero-tolerance policies. It may be the case that you have adopted zero-tolerance policies providing for automatic and immediate eviction of tenants who commit, or allow others under their control to commit, violent crimes in their apartments. On the surface, zero-tolerance policies seem to be defensible as both a statement of moral principle and a practical strategy for complying with crime-free and local nuisance laws. But in the context of fair housing, they’re highly problematic.

According to HUD guidance, “zero-tolerance policies, under which the entire household is evicted for the criminal activity of one household member” raise red flags of housing discrimination because of their disparate impact on women and other protected classes disproportionately impacted by domestic violence. Also, VAWA prevents owners from applying a zero-tolerance policy to evict domestic violence victims for the violent acts of their partners.

Criminal background checks. HUD has warned against owners’ use of blanket restrictions targeting applicants with criminal backgrounds as a way for owners to maintain safety and order within their sites. While the intention behind these policies is usually well meaning, blanket policies are not only potentially discriminatory but also illegal. Instead, a more fact-specific, case-by-case approach is necessary to ensure compliance with fair housing laws and avoid unintended consequences.

For example, it’s illegal for an owner to adopt a blanket policy of refusing to rent to any applicant who has ever been arrested or convicted of a crime. Excluding applicants based on a criminal record may be justified only when the person has actually been convicted of a crime; merely being arrested isn’t enough. According to HUD guidance, an arrest, on its own, is merely an accusation. The problem with arrest records is that they often don’t show how the case was decided and whether the individual was prosecuted, convicted, or acquitted of the charges. As a result, the HUD guidance concludes that an arrest is not a reliable basis for determining whether a particular individual poses a potential risk to safety or property.

To secure a conviction, the prosecution must prove guilt beyond a reasonable doubt. Although a criminal conviction is the minimum standard to any site’s screening policy, it’s important to know that a conviction is not enough to justify a rejection of an applicant. That’s because all crimes aren’t the same. According to the HUD guidance, owners must distinguish between criminal conduct that indicates a risk to tenant safety or property, and criminal conduct that doesn’t rise to that level.

The consensus is that the conviction must be for a felony rather than a misdemeanor. And the landlord must also consider the nature of the felony. Based on case law, felonies justifying exclusion may include convictions for: 

• Illegal manufacture or distribution (but not mere possession) of drugs and other specified controlled substances;
• Sexual assault;
• Other violent crimes like homicide, assault and battery, domestic violence, robbery, and false imprisonment; and
• Arson, vandalism, and other crimes causing significant damage to property.

Another fact-specific consideration is how long ago the felony was committed. The more recent the conviction, the greater the justification for considering the person who committed it a risk of danger to safety and property. Based on court cases, the unofficial window is seven years. However, sexual assault convictions don’t have a shelf life and may be grounds for rejecting an applicant regardless of how long ago they occurred.