New Risks for Cook County Residential Landlords

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Professionals

Cook County residential landlords, property managers and real estate brokers now have a new “protected class” to be aware of with regard to housing discrimination claims. On April 24, 2019, the Cook County Board of Commissioners amended the Cook County Human Rights Ordinance such that (1) it prohibits housing providers (and their agents) from inquiring about a residential housing applicant’s criminal history until after the applicant has otherwise been approved, (2) it prohibits discrimination in residential real estate transactions based on factors such as arrest records, citations and sealed or expunged records, and juvenile convictions, and (3) prior to denying applicants based on a conviction, it requires housing providers to consider individualized factors, such as rehabilitation, length of time since conviction, and the nature and severity of the crime. The ordinance is intended to improve housing opportunities for individuals with criminal records. These changes go into effect at the end of October, six months after passage of the ordinance.

To comply with the ordinance, Cook County residential housing providers (including sublandlords), will need to change how they qualify and approve rental applications.  At the application stage, providers cannot inquire about “covered criminal history,” which is defined as information regarding an individual’s arrest, charge or citation for an offense, participation in a diversion or deferral of judgment program, a record of an offense that has been sealed, expunged, or pardoned, a juvenile record, or a conviction.  Thus, obtaining a criminal background check at the same time as a credit or eviction check, or requesting criminal history information on an initial application form, will be unlawful under the ordinance. If the housing provider intends to evaluate an applicant’s criminal history, the housing provider must first determine whether the applicant is qualified for the rental housing under all other metrics, such as credit and eviction history. Only after the applicant meets the housing provider’s application criteria may the housing provider request criminal history information from the applicant or obtain a criminal background report. 

With limited exceptions, the ordinance provides that it is unlawful to deny a rental housing application based on covered criminal history.  The ordinance allows housing providers to deny applicants who are currently registered as sex offenders or currently have a child sex offender residency restriction. The ordinance also permits housing denials based on a criminal conviction (excluding juvenile convictions) where the housing provider has conducted a multi-factor individualized assessment showing the conviction-based denial was necessary to protect against a demonstrable risk to the personal safety or the property of others. The individualized assessment must consider the nature, severity and recency of the conviction, the nature of the sentencing, the number of convictions, the length of time that has passed following the most recent conviction, age at the time of conviction and evidence of rehabilitation.  The Cook County Human Rights Commission is tasked with developing regulations covering the individualized assessment procedure, which have not yet been promulgated. However, the ordinance will be enforceable whether or not such regulations have been promulgated.    

If, after reviewing the criminal history and performing the individualized assessment, the housing provider decides to deny the application, they must give the applicant notice and an opportunity to dispute the accuracy and relevance of the conviction, including providing a copy of the tenant selection criteria used, a copy of the criminal background report relied upon, and a written statement containing the reasons for denial.  The housing provider must also maintain, in confidence, the criminal history information obtained about the applicant.

Housing providers will now face difficult decisions when balancing the safety and security of their existing tenants, and the risk of potential discrimination claims from individuals with criminal convictions. The ordinance provides individuals with a private right of action against the housing provider for violations. Violators face lengthy investigations, court or administrative proceedings, penalties including fines up to $500 per day, and a successful plaintiff may recover damages plus attorneys’ fees.  The ordinance currently gives housing providers no protection against claims from (a) existing tenants for omitting criminal background checks from the application process or (b) approving applicants with convictions. Housing providers, particularly in multi-family properties, should proceed with caution, and use diligence when qualifying tenants and thoroughly document their processes and procedures to help avoid discrimination claims and claims from tenants who may be harmed by an approved applicant with a criminal history. 

For more information, please contact Brad Ader at 312/840-7137 or bader@burkelaw.com.

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