How Will Your Criminal Record Affect Your Housing Options?
Housing is a basic human need, but unfortunately, there are a variety of circumstances that can get in the way of this universal necessity. Often, it is even more difficult for people to secure housing for themselves and their families when they've had to overcome a problematic past. Although overcoming obstacles should be considered a sign of strength and perseverance, potential landlords will use this information against you.
Most rental applications require a background check. Ultimately, the landlord will decide what information automatically bars an applicant from the rental property lease, but in a competitive rental market, evidence of any crime might result in the rejection of your lease application.
Maybe you've already experienced this sort of housing setback, or perhaps you're concerned that your criminal history is going to come back to haunt you at an inconvenient time. If you have the dark cloud of a criminal history hanging over your life, even when you've worked to overcome your prior mistakes, then you should know that you have options. You may be able to seek expungement with the help of an experienced attorney. If you succeed in expunging your criminal history or arrest record, you'll find housing options, in addition to professional or educational opportunities, will be more available to you.
What Shows Up When a Landlord Runs a Background Check on You?
In most situations, a landlord will run background checks that ask for your financial records, your eviction records, and your criminal records. Unfortunately, in Pennsylvania a person cannot expunge an eviction record, though there is growing pressure to amend Pennsylvania laws so that those suffering unfair prejudice in an already difficult rental housing market will someday have more options.
Similarly, financial records, such as liens or debt collections, aren't eligible for expungement because they aren't handled in Pennsylvania's criminal justice system. Financial records are obtained during credit checks through the major credit reporting bureaus. While unrelated to your criminal records, it's always advisable to monitor your own credit so you can dispute any incorrect information. Unlike criminal records, negative notes on your credit report will disappear after several years. Criminal records do not just go away in most cases, and they instead require a proactive legal approach.
Fortunately, tenants have options when it comes to any criminal records that may show up on a background check performed by a potential landlord.
Understanding the Fair Credit Report Act
When a landlord, or a third-party company hired by a landlord, runs a background check on a prospective tenant, they must adhere to the Fair Credit Reporting Act (“FCRA”).
Under the FCRA, you must consent for someone else to run a background check on you. If, after the background check is run, the landlord decides to reject your application on the basis of information contained in the background check, they need to provide you with notice of what information led to their ultimate decision. This may help you understand what you need to try and expunge.
HUD Guidance Cautions Landlords Against Blanket Restrictions
Another component of federal law that protects the general public from discriminatory or unfair practices can be found under the rules and regulations promulgated by the U.S. Department of Housing and Urban Development (“HUD”). HUD rules prohibit landlords from discriminatory practices, and it provides a pathway for tenant complaints when these rules are violated. In particular, the guidance applicable to criminal background checks given by landlords for the purpose of rental applications was published in 2016.
The 2016 guidance acknowledges:
“As many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort. The United States prison population of 2.2 million adults is by far the largest in the world… Yet many formerly incarcerated individuals, as well as individuals who were convicted but not incarcerated, encounter significant barriers to securing housing… because of their criminal history. In some cases, even individuals who were arrested but not convicted face difficulty in securing housing based on their prior arrest.”
Even when a housing provider harbors no specific intent to discriminate against an individual, they may, in fact, be doing so when their application screening practices for criminal histories are too broad. For example, if a landlord screens their applications for any record of arrest, then individuals of color who have long been subject to discriminatory police practices will inevitably be barred from housing.
If you feel you've been discriminated against, then you do have options, and you absolutely should file a complaint with HUD. The problem is that you need housing now, and the complaint process will take some time. The best approach to avoiding these lengthy and stressful processes is to curtail any complications ahead of time by seeking to have your criminal record and arrest records expunged before they are an issue.
What Type of Criminal History Might a Landlord Flag for Rejection?
While a landlord is required to notify you of the information that led to a rejection of your rental application, this scenario is not ideal. You may have recourse to file a complaint with HUD, but that doesn't solve the immediate problem, which is your need for housing in the present moment.
When it comes to criminal history, primarily, landlords will reject an application based on:
- Drug or alcohol-related convictions
- Violent crime convictions
- Theft convictions
- Arrests without conviction
- Felony convictions
In some cases, you may be eligible for expungement of these records. If you've been previously convicted or arrested, you should speak to an experienced expungement attorney to see if expungement is an option for you.
Do You Have to Tell Your Landlord About Expunged Offenses?
After you've successfully petitioned the court for expungement of your record, you may wonder if you need to disclose your expunged criminal history on your rental application. The answer is: No.
In Pennsylvania, the criminal justice agencies must destroy your records once they receive formal notice of a judge's Order for Expungement. While this does not mean you have been exonerated, it does mean that in the eyes of the Pennsylvania justice system, you deserve to move through life without the burden of a prior rap sheet. Accordingly, you do not need to tell a potential landlord of any arrests or convictions that were wiped out through expungement.
It's important to understand that the record isn't 100% wiped out, and law enforcement agencies will be able to access your criminal history in some cases. Still, the general public, including potential landlords, will not gain access to these records.
Expungement Eligibility in Pennsylvania
Not every criminal record is eligible for expungement in Pennsylvania. To determine whether you'll be able to expunge your record, you'll need to take a look at both:
- What type of crime is on your record
- How old the record is
In Pennsylvania, you may have two different types of records to consider expunging. There are conviction records, and then there are the records that resulted from an arrest where no subsequent conviction or case disposition was entered by the court. In many cases, a landlord is going to consider the conviction record, but you never know when they might also consider the arrest record as well. It's unfair to be denied housing because you were arrested even when you weren't found guilty, but fortunately, these records are more easily expunged.
Expungable records involving arrests without conviction may include instances where:
- You were found not guilty
- Your case was dismissed
- Your case was nolle prosed
- The court did not enter a case disposition within 18 months
In the scenarios outlined above, you are most likely eligible for expungement so long as there are no criminal proceedings currently pending against you.
In those cases where you were convicted, you may still be eligible for expungement if the nature of the crime was a summary offense. Summary offenses are the least serious type of crime a person can be charged with in Pennsylvania. They include acts of:
- Public drunkenness
- Disorderly conduct
- Loitering
- Retail theft
There is a laundry list of crimes that constitute summary offenses, and an attorney can help you understand exactly what type of offenses are on your record. For those convicted of summary offenses, expungement eligibility occurs five years after the date of the last criminal case disposition.
In addition to summary offenses, those who've been arrested for certain alcohol-related crimes or drug-related crimes may be eligible to have their records expunged if they successfully complete an Accelerated Rehabilitative Disposition, aka “ARD” program (for alcohol), or a Section 17 disposition program (for drugs). These programs essentially defer an individual's conviction but are contingent upon successful completion of a treatment program designed to help people overcome their addiction issues.
Those who committed crimes as minors can, in many cases, petition for expungement once they reach the age of 18. Importantly, if they do turn 18, but it has been less than five years since the disposition of their case, then they will have to wait until that five-year clock runs out.
Misdemeanor and felony convictions are not expungable for the most part, especially if they evidence violent crimes. For example, rape, sexual assault, and murder will remain on your record.
There are a couple of exceptions to the above general preclusion regarding misdemeanors and felonies, however. One such exception is that seniors over the age of 70 are able to petition the courts for expungement of felony and misdemeanor convictions in many cases and have their records erased so long as they have not committed any crime in the last ten years.
How Pennsylvania Expungement Works
Pennsylvania expungement processes can be summed up fairly easily—which is not necessarily to say it is always smooth sailing. Essentially, you need to obtain a record of your criminal history or arrest history from each criminal justice agency in the state that holds those records. While you could go door to door and request these records in person, it's often easier to perform an ePATCH search online or to fill out and send off an "Access and Review" SP 4-170 Form to the Pennsylvania Central Repository Agency. Notably, the ePATCH search will only return conviction records, and if you wish to perform a more thorough search for any arrest records that didn't result in a conviction, then you'll need to fill out the form.
Once you have your complete records, you'll need to prepare and file an Expungement Petition for each county in which you have a record. An experienced expungement attorney will prove invaluable during this step because each county may have slightly different rules concerning the expungement process.
After you file your Expungement Petition, the court may schedule a hearing which gives the district attorney an opportunity to state their opinion on the suitability of expungement in your case. If the judge ultimately issues an Expungement Order, you'll need to provide formal notice of this order, generally through the clerk of courts, to the criminal justice agencies that hold your records so they may then begin the process of expunging the records.
Why You Should Hire an Experienced Pennsylvania Expungement Lawyer
At the end of the day, the expungement process in Pennsylvania can take several months, even when you don't experience delays. For those hoping to avoid the pitfalls of a denied rental application, it's important to start the process early. While some delays may be outside of your control, other hang-ups can be attributed to simple errors or omissions made because of inexperience with the Pennsylvania expungement process. Hiring an experienced Pennsylvania expungement attorney will help ensure you avoid mistakes that may ultimately cost you housing opportunities.
Attorney Joseph D. Lento has unparalleled experience working on expungement cases throughout Pennsylvania's 67 counties. He understands how critical expungement is for those seeking housing opportunities, and if you're worried you may be denied a rental application because of your criminal history, you should contact the Lento Law Firm today at 888-535-3686.
