Seattle Ban on Use of Criminal History by Landlords Begins on February 19, 2018

Chartrice Young | Tenant Screening Director

Sean Martin | Interim Executive Director

Last summer, the City of Seattle became the first city in the nation to pass legislation banning the use of criminal arrest and conviction records when considering an applicant for rental housing.

The ordinance, sponsored by Councilmembers Lisa Herbold and Bruce Harrell, was approved unanimously by City Council, and signed in to law by former Mayor Ed Murray last August. The issue received its own subcommittee task force aimed at addressing the barriers that criminal records screenings place in front of ex-offenders searching for housing. Its passage ended a process of public debate begun during the HALA stakeholder process started in 2014.

Seattle landlords will need to adapt their tenant screening criteria and practices to comply with the ordinance. Tenant screening criteria, required to be included in all advertisements for rental vacancies, cannot include any policy or practice that automatically or categorically excludes all individuals with any arrest record, conviction record, or criminal history.

Additionally, the “ban the box” provision of the ordinance requires that applications for tenancy no longer require disclosure of any arrest or criminal convictions. Members using the RHAWA Application for Tenancy in Seattle are advised to begin using our new version of this form which reflects this change in the law, as well as providing disclosure that landlords may no longer use arrest and conviction records as a reason for adverse action.

Seattle’s Office for Civil Rights is responsible for investigating claims of adverse action by landlords — including making alternate offers of tenancy (such as charging a higher security deposit or refusing to add a current occupant to a lease).

A conciliation process, including anti-bias training, may be a part of enforcement. In addition, the city could require civil fines — $11,000 for a first offense, $27,500 for two within a five-year period, and $55,000 for more than two violations within seven years — or a requirement to provide rent credits.

In response to the ordinance, RHAWA’s tenant screening products have been modified for Seattle landlords. Due to the ordinance’s definition of “person,” RHAWA is now prevented from

“inquiring about” criminal records and cannot provide this information to members running

tenant screening reports for units located

in the City of Seattle.

To better serve our landlord members screening applicants in Seattle, effective February 19

RHAWA tenant screening will offer a “Seattle package.” No criminal or arrest records from your applicant’s background history will be accessed or reported. The only criminal conviction still allowed to be considered as a reason for denial in Seattle are sexual offense convictions which occurred when the perpetrator was an adult, and which require that individual to register as a sex offender for life on a local, state, or national registry. In such instances, a landlord must still demonstrate that the sexual offense conviction being used for denial of tenancy presents a “legitimate business” reason for doing so.

A legitimate business reason involves considering the nature of the offense, the severity of that offense, when it occurred, how old the applicant was at the time of the offense, and whether or not the individual has been rehabilitated since that point in time.

The lone class of landlords exempted from the ordinance’s ban are those who rent shared space — eg, room rentals, accessory dwelling units (ADU), and detached accessory dwelling units (DADU). These exempted landlords, however, must still follow federal HUD guidelines when screening for criminal records, including no blanket or categorical bans on any types of criminal records, in determining if a “legitimate business reason” exists for denying the applicant.

Seattle landlords should also consider how this ordinance interacts with the First in Time law, and how their tenant screening criteria may be impacted to ensure the first applicant who qualifies for their rental is someone with whom they’ll feel comfort in renting to.

Other tools, such as credit checks, civil records searches (evictions, collections), and landlord and employment verifications remain critical tools for Seattle landlords to ensure an applicant is low-risk.

RHAWA tenant screening offers a variety of products to help our landlords reach a reasonable decision. We can screen for eviction records, civil records, previous landlord, national sex offender records, employment screening, credit fraud detection and more. Please visit us at RHAwa.org/tenant-screening for more details.

RHAWA opposed the legislation as it did not reflect real-world risk posed to tenants, property, and owners. Federal data indicates that 76% of ex-offenders are arrested within five years after their release from prison, and RHAWA believes that Council should have allowed a “look back” period for more recent convictions to be considered.

For landlords outside the City of Seattle, the US Supreme Court’s ruling on “disparate impact” and HUD guidelines regarding how landlords may use criminal records when screening an applicant still apply.

For those landlords blanket policies denying applicants on the basis of having a criminal conviction in their history are not allowed. Criminal records must be considered on an individualized basis, factoring in the nature and severity of the offense, the age at time of conviction, and factors which would indicate the individual has been rehabilitated. The picture a background report paints must display that a “legitimate business reason” exists when taking adverse action against an applicant due to arrest and conviction records.

RHAWA’s Legal Defense Fund committee is reviewing this new ordinance to determine if any legal issues exist which present the opportunity for a legal challenge.