Landlords in New Jersey: What You Can and Can’t Do When Considering Applicants’ Criminal Histories

New Jersey’s new Fair Chance in Housing Act (FCHA) ensures that formerly incarcerated and system-involved people and their families have fair access to housing around the state. To that end, the law sets forth standards landlords and other housing providers must follow if they select to consider a rental applicant’s criminal history.  

For New Jersey housing providers, that means becoming familiar with the requirements of the law, which took effect in January 2022.

Among other things, the law seeks to eliminate blanket rental application rejections based on stereotypes tied to criminal history in favor of a more nuanced and individualized risk assessment.

What sparked the change in the law?

Prior to the law, some landlords rejected applicants with criminal histories out of hand, without considering the seriousness of the underlying violation, the amount of time that passed since the violation or whether the applicant had changed their life for the better. 

Given racial and ethnic disparities in the criminal justice system, the blanket denials meant a disproportionate number of Black and brown individuals and their families were being denied safe and affordable housing, according to the state Attorney General’s office. Those denials, in turn, negatively affect the health, safety, education and employment prospects for millions of people. 

The denials interfere with families’ ability to reunify – even though family connection reduces recidivism and homelessness – and leads to entire families being denied housing due to one member’s criminal history. 

Zillow is proud to partner with the New Jersey Division on Civil Rights to help ensure more people have a fair shot at accessing safe and affordable housing, while providing resources and educational materials to help housing providers comply with their legal obligations. 

Which rental properties are covered by the law?

The law covers a dwelling unit offered for rent for residential purposes, with one exception: Owner-occupied properties with four units or less.

The law covers anyone who receives rents or benefits from the use or occupancy of any residential unit. This includes landlords, property owners, lessors and sublessors, and assignees or their agents. It also includes any other person receiving or entitled to receive rents or benefits for the use or occupancy of any rental dwelling unit.

What does the FCHA do?

In most cases, the FCHA makes it illegal for you, the housing provider, to deny housing to an applicant solely because they have a criminal record. 

The law limits your ability to consider an applicant’s criminal history for an initial housing application during an interview or in any other way before making an offer. It also bars you from posting or publishing ads that say you won’t consider applicants with criminal histories or records.

With limited exceptions, housing providers subject to the FCHA are immune from liability in civil actions arising from a decision to rent to someone with a criminal record or a decision not to perform criminal background screenings.

Does the FCHA require that I conduct a criminal background check?

No. The FCHA does not require that you consider an applicant’s criminal history or conduct a background check. If you do decide to conduct criminal background checks and consider an applicant’s criminal history, the FCHA limits your ability to consider a person’s criminal history in deciding whether to extend an offer or whether to rent a home after extending an offer.

Under what conditions can I inquire about criminal records?

If you do screen for criminal history, the FCHA generally does not allow you to ask an applicant if they have a criminal history on their initial application materials, in an interview, or in any other way before making an offer. There are two exemptions you may ask about: 

1) Whether the applicant is subject to lifetime registration on a state sex offender registry.

2)  Whether the prospective tenant has ever been convicted of criminal activity related to the manufacture or production of methamphetamine on the premises of federally assisted housing.

Aside from these exceptions, the only time you can ask about a prospective tenant’s criminal history or conduct a criminal background check on them is after you make a conditional offer to rent to them. If a housing provider does review an applicant’s criminal history after a conditional offer, specific restrictions apply.

Before running the check or considering an applicant’s criminal history, the FCHA requires that you provide the application with a written disclosure statement that must include the following:

• Your intent to review and consider the applicant’s criminal record in determining eligibility for housing.
• An explanation of the criminal records that may be considered and the manner in which they may be considered.
• Information regarding the applicant’s right to dispute, within 10 days of receipt of the disclosure statement, the relevance and accuracy of the criminal record and to offer mitigating facts or circumstances, including but not limited to the person’s rehabilitation and good conduct since the criminal offense in question.

 The New Jersey Division of Civil Rights has created an easily adoptable and free model disclosure form to assist housing providers in complying with their FCHA disclosure statement requirements.

Are there criminal records I can never ask about?

Yes. You cannot, either before or after the issuance of a conditional offer, evaluate an applicant based on any of the following: 

• arrests or charges that have not resulted in a criminal conviction
• expunged convictions
• convictions erased through executive pardon
• vacated and otherwise legally nullified convictions
• juvenile adjudications of delinquency
• records that have been sealed

The law also prohibits you from requiring drug or alcohol tests, retaliating against anyone who files a complaint under the law, or disseminating or distributing an applicant’s record in a manner not permitted under the law. For more information on the specific records you can and can’t consider, please see the Attorney General’s website.

What types of criminal records can I consider?

After making a conditional rental offer, you can only consider the following types of criminal records when deciding whether to withdraw the conditional rental offer: 

1) A conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, sexual assault, endangering the welfare of a child in violation of N.J.S.2C:24-4(b)(3).

2) A conviction for any crime that requires lifetime state sex offender registration.

3) Any conviction for a 1st degree indictable offense, or release from prison for that offense, within the past 6 years.

4) Any conviction for a 2nd or 3rd degree indictable offense, or release from prison for that offense, within the past 4 years.

5) Any conviction for a 4th degree indictable offense, or release from prison for that offense, within the past 1 year.

For guidance on how New Jersey classifies indictable offenses and their degrees, and how New Jersey interprets convictions in other jurisdictions, please refer to the resources on the New Jersey Division on Civil Rights’ FCHA webpage.

What happens if I decide to reject an applicant?

The FCHA allows you to withdraw a conditional offer of housing based on one of the above convictions only after you perform an individualized assessment and determine that withdrawal is necessary to fulfill a substantial, legitimate and non-discriminatory interest. The individualized assessment must take these factors into account:

• The nature and severity of the offense(s)
• The applicant’s age at the time of the offense(s)
• How recently the offense(s) occurred
• Any information the applicant provided in their favor since the offense(s)
• If the offense(s) happened again in the future, whether that would impact the safety of other tenants or property
• Whether the offense(s) happened on, or was connected to, property that the applicant rented or leased

The rejection must include a “notice of withdrawal” stating the specific reasons for the withdrawal, and notifying the applicant of their right to appeal. If, within 30 days of receiving the notice, the applicant requests a copy of the information you relied on for your decision, you must provide all information, free of charge, within 10 days of receiving the request. 

The applicant can contest the decision on the grounds that it violated the law, and provide supporting evidence. You must consider that evidence and issue a decision within 30 days. (See rules governing vendors or third-parties that provided the criminal record check.)

If the applicant believes the law has been violated, they can file a complaint with the Attorney General’s Division on Civil Rights within 180 days of the alleged violation.

What if I rely on information provided to me by a third party or screening agency?

If you use a vendor or outside person or entity to conduct a criminal record check, you must take reasonable steps to ensure the vendor or outside person or entity is conducting the check consistently with the requirements of the FCHA. If you fail to follow such steps, you may be found liable under the FCHA for relying on the improper inquiry. If it is revealed that you received a criminal history inquiry containing improper information, you may be required to show you did not rely on that information in making a tenancy determination.

What are the penalties for violating the law?

You can be subject to penalties ranging from up to $1,000 for a first-time offense, up to $5,000 for a second offense and up to $10,000 for any subsequent offense. The Attorney General’s Division on Civil Rights, which enforces the law, can also impose other remedies.

 Since the law went into effect in January 2022, DCR has brought 89 enforcement actions against housing providers across the state — and resolved 62 of those actions. 

Where can I learn more?

Visit the New Jersey Civil Rights Division website and/or sign up for a free interactive training that spells out rights and responsibilities under the New Jersey Law Against Discrimination, the New Jersey Family Leave Act, the Fair Chance in Housing Act. You can register for training here. 

Resources 

• The New Jersey Division on Civil Rights’ FCHA webpage
• PDF detailing law