The Cook County Board of Commissioners released a new set of rules on October 23, 2019 to implement the Just Housing Amendment to the Cook County Housing Ordinance. This set of rules is basically a rejection of a number of landlord suggested modifications. The County went with a pro-tenant version. Distilled down to its essence, under the Just Housing Amendment, a landlord cannot run a criminal background check until after following a number of procedural steps.
The law stems from the 2016 HUD guidance on criminal background checks. The people pushing this law have their heart in the right place. People deserve a second chance. Unfortunately, the rules are restrictive, complex, and don’t actually screen out people who do not deserve a second chance.
Beginning on January 1, 2020, before accepting an application fee, a Cook County landlord must disclose to the applicant:
- The landlord’s tenant selection criteria
- A notice that the applicant will have a right to provide evidence demonstrating inaccuracies within the applicant’s conviction history, or evidence of rehabilitation and other mitigating factors; and
- A copy of Part 700 of the Commission’s procedural rules or a link to the Commission’s website, with the address and phone number of the Commission.
After the initial notice and application are provided to the tenant, the landlord must “pre-qualify” the tenant. Basically, this means that the landlord applies all of their screening criteria to the tenant’s application except for information about criminal background and makes a decision to approve or disapprove based on those criteria. At this stage, neither a landlord or a landlord’s agent may inquire about, consider, or require the disclosure of an applicant’s criminal conviction history. The decision to accept or deny based on the rental criteria, ie. pre-qualification, must be complete before criminal background can be considered. This means the landlord has already determined that the applicant is satisfactory and is subject only to the criminal background check. Once the tenant is pre-qualified and receives notice of that fact, the landlord can conduct a criminal background check.
This is where things get interesting. A landlord MAY NOT CONSIDER any information related to criminal convictions that are MORE THAN THREE YEARS OLD and may not consider any information related to the tenant’s (1) arrest, charge or citation record (when there is no conviction); (2) participation in a diversion or deferral of judgment program; (3) record of an offense that has been sealed, expunged, or pardoned in accordance with applicable law; (4) or juvenile record; or juvenile convictions. The restrictions on other information that can not be considered are in line with the HUD guidance that says arrests alone, without a conviction, are not valid for review. However, the time restriction of three years is simply ludicrous.
If the landlord determines, based upon the background check that they don’t want to accept the tenant, the landlord must provide the applicant with:
- A copy of the tenant selection criteria, a copy of the criminal background check or other screening material relied upon by the landlord, and the individualized assessment performed by the landlord;
- Notice of the applicant’s right to dispute the accuracy or relevance of any conviction(s); and
- A copy of Part 700 of the Commission’s procedural rules, or a link to the Commission’s website, with the address and phone number of the Commission.
Once a housing provider has denied the applicant, the applicant shall have 5 business days from the postal or electronic mail date stamp to notify the landlord in writing of the applicant’s intent to dispute the accuracy or relevance of any criminal convictions from the last 3 years and an additional 5 business days to produce evidence that disputes the accuracy or relevance of information related to any criminal convictions from the last 3 years.
During the time the tenant is appealing the process, the landlord CAN NOT RENT THE UNIT TO ANOTHER TENANT.
The landlord’s individualized assessment must be made to determine whether the applicant’s criminal convictions from the last three 3 years pose a demonstrable risk to other tenants and/or the rental property.
Factors that may be considered in performing the Individualized Assessment include, but are not limited to:
- 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 applicant’s most recent conviction;
- The age of the individual at the time the criminal offense occurred;
- Evidence of rehabilitation;
- The individual history as a tenant before and/or after the conviction.
After the individualized assessment is made, a landlord must either approve or deny an individual’s housing application within 3 days of a final decision to deny admission or continued occupancy based on criminal conviction history. If the landlord decides to deny the applicant, then the landlord must provide the applicant with
- A written denial providing the applicant an explanation of why denial based on criminal conviction is necessary to protect against a demonstrable risk of harm to personal safety of the tenants and/or property.
- The written denial must also contain a statement informing the housing applicant of their right to file a complaint with the Commission.
These rules are no joke. In my own personal opinion, they are so restrictive that they actually seek to prevent landlords from bothering with a criminal background check. The layers of complexity and the potential for error or misunderstanding of the rules and their implications are so high that it will not be worth a landlord’s time, effort, expense, or risk to bother with a criminal background check.
At the same time, nowhere in the Cook County or Illinois state law is there anything that exculpates the landlord from liability for placing a person with a criminal past in their building. Municipalities like Evanston, Mt. Prospect, Elk Grove and others continue to insist on the applicability of their “Crime Free Leasing” programs which impose penalties on landlords who have crime in their buildings. You can bet that civil forfeiture rules will still apply to landlords who fail to remove drug traffickers from their buildings. Landlords are getting squeezed from both sides here.
These rules are not finalized yet, so keep watching here and keep complaining to your Cook County Commissioner about the proposed rules. What is certain is that some set of rules will go into effect beginning on January 1, 2020.