Know Your Rights: Housing and Arrests or Criminal Convictions

A criminal history can affect your eligibility for both public housing
and, if a landlord conducts a background check, private housing. An
arrest – even before anyone is found guilty – can often trigger
eviction of you or your entire household from public or private
housing.

Federally Subsidized Housing (NYCHA & Section 8)

Federally subsidized housing includes all public housing developments
(such as NYCHA in New York City and RHA in Rochester) and Section 8.
Rules in subsidized housing can be very strict, and even minor arrests
or criminal convictions can affect your right to stay in public
housing. This section includes information about “Admissions”–or the
rules guiding when your criminal conviction might prevent you from
living in public housing, even if your family lives there–and about
“Termination of Tenancy”–or eviction based on criminal justice
involvement. Most of the information here is specific to the New York
City Housing Authority (NYCHA) and to Section 8 administered by NYCHA.
To find out about the laws specific to your city or county use
LawHelp/NY (www.lawhelp.org/ny) to find a housing legal services
provider in your area.

Admissions: Getting into housing with a criminal record

Public housing agencies and Section 8 providers can and do obtain criminal records of applicants and tenants. Much of the information in this section is based on How to Get Section 8 or Public Housing Even With a Criminal Record, a publication of the Legal Action Center.

1. How can my past criminal involvement affect my chances at getting public housing or Section 8?

• When you apply, the Public Housing Authority runs a criminal background check of:
  • You;
  • Everyone you currently live with;
  • Everyone 16 or older who might live with you;
  • Any biological parent of any children who will be living in the household, even parents who do not plan to live with you and are not part of the public housing application.
• The rules governing who may be denied are very broad. The Housing Authority tries to exclude people it believes will “risk the health and safety of other tenants.” On the other hand, the Housing Authority may choose to overlook your criminal convictions and accept your application, especially if they see evidence that you have changed since the time of your conviction.
• The Housing Authority will look for evidence (such as an official rap sheet) that no member of your household has committed any new criminal activity in recent years. Federal Law (42 USC § 13661(c)) gives Public Housing Authorities the power to deny people based on criminal activity.

2. Are there any convictions that could permanently bar me from living in public housing or Section 8?

• Yes, but only two: Federal law says that a person who is subject to lifetime sex offender registration or who has been convicted of producing methamphetamine on public housing grounds may not ever be admitted to public housing or receive Section 8 again. If you have one of these convictions but are already living in public housing, you have a right to stay because Federal law only applies to people who are applying to live in public housing or receive Section 8, not those who already do. Call a lawyer if eviction proceedings are brought against you.

3. What about other convictions that could bar me?

• Each public housing authority, and each agency that manages Section 8 vouchers, has its own “ineligibility timetable.” For example, in the New York City Housing Authority (NYCHA) timetable, if you are convicted of a misdemeanor you may be restricted from living in public housing for three or four years after the end of your sentence (not including probation or parole).
  • To find out the rules in your local Public Housing Authority (PHA) use www.lawhelp.org/ny to find a housing attorney in your area.
  • The full NYCHA ineligibility timetable is at the bottom of this page.
  • A Certificate of Relief from Disabilities or Certificate of Good Conduct can help you overcome automatic ineligibility.
• In addition, if you or a member of your household has been evicted from public housing due to drug-related criminal activity within the past three years, your public housing or Section 8 application could be rejected. You can strengthen your application by demonstrating that:
  • The person evicted due to the drug-related criminal activity has successfully completed a supervised drug rehabilitation program approved by the PHA; or
  • That individual no longer lives in your household.

4. If my application for public housing or Section 8 includes someone with a record of criminal activity, as described above, how can I strengthen my application for public housing?

• Include in your application:
  • Evidence of treatment or rehabilitation, including evidence of completion of a drug counseling program or Certificates of Relief from Disabilities and Certificates of Good Conduct.
  • Evidence that your household is participating in, or willing to participate in, other social services or counseling programs.
• If you are denied admission or are evicted from public or Section 8 housing because of criminal activity, you MUST be provided with the grounds for denial or termination, a copy of your criminal record (if you have one), and any other relevant PHA documents. You also must be given the opportunity to dispute the accuracy and relevance of any documents being used by the Housing Authority to deny your admission or to evict you.
• Each Public Housing Authority can choose to be even stricter about admitting people with criminal histories than federal law requires. There are several resources that can help walk you through this process at www.lawhelp.org/ny in the “Consequences of Criminal Charges” section. For New York City residents, look for “How to Get Public Housing and Section 8 Even With a Criminal Record,” published by the Legal Action Center.
• In November of 2013, the New York City Housing Authority (NYCHA) announced a 2-year pilot program. During the 2-year period, NYCHA will allow 150 people returning home from prison to live with their families in public housing. Click here for program overview and eligibility guidelines.

Terminations of Tenancy: Avoiding eviction after arrest

If you live in public housing and you or someone in your household is arrested, you are at risk for eviction from public housing. Typically, this is called “termination of tenancy.” If you are being evicted from public housing or from your Section 8 program, you have a right to a hearing. There are some resources on www.lawhelp.org/ny that can help you understand this process and fight to keep your apartment.

1. I was arrested but I haven’t been convicted of anything yet – can I be evicted before my criminal case is even over?

• Unfortunately, yes. NYCHA and other public housing authorities can evict tenants based on even minor evidence that criminal activity has occurred, regardless of whether someone in the household has been convicted of anything. In criminal court, a person is “innocent until proven guilty,” but in public housing, proof of guilt is not required to start eviction proceedings against a household.

2. What kinds of activities could lead to eviction proceedings?

• Under Federal Laws, Public Housing Authorities (like NYCHA in New York City, RHA in Rochester, etc.) are allowed, but not required, to evict anyone who:
  • Illegally uses drugs
  • Abuses alcohol
  • Lies or misleads on their applications about drug and alcohol abuse
  • Is involved in criminal activity that threatens other resident’s health, safety, or right to peaceful enjoyment of the housing
  • Is avoiding prosecution or custody after being convicted of a felony or attempt to commit a felony
  • Is violating a condition of probation or parole
• Your entire household may be evicted if:
  • You, anyone in your household, or any guest is involved in drug-related criminal activity on or off of the public housing property
  • Someone who the Housing Authority says is “under your control” (even if they are not actually your guest) engages in drug-related activity in the development or building

3. If I am worried about the possibility of eviction; what can I do?

• Before you are evicted, the Housing Authority must consider the circumstance of your case. “Mitigating circumstances” about you and your family can convince the Housing Authority not to evict you or terminate your tenancy. Examples of “mitigating circumstances” include:
  • The criminal charges brought against you were dismissed or were very minor
  • If criminal activity has occurred, you have taken responsibility and are taking reasonable steps to prevent or lessen it
  • The person who was arrested for criminal activity got treatment for a condition that led to the arrest
  • The person who was arrested for criminal activity moved out
  • The person who was arrested for criminal activity never lived with you and you are willing to ban him or her from visiting your apartment
  • You have been a resident in public housing for many years and have been an upstanding member of the community
• You immediately should start gathering evidence of rehabilitation and of treatment if the activity is for drug or alcohol abuse. This includes evidence of completion of a drug counseling program or Certificates of Relief from Disabilities or Certificates of Good Conduct.

4. What happens in the “termination of tenancy” process in a NYCHA development?

• If you have an open criminal case, be sure to talk to your lawyer about anything you say in the NYCHA process. In the NYCHA hearing, you will be asked questions about your arrest and criminal case, and anything you say in the NYCHA hearing can be used against you in your criminal case.
• You will receive a notice from the project manager or the manager’s representative. The manager might meet with you and give you a chance to tell your side of the story. But only tell your story if you are prepared. It’s easy to talk too much and give the housing manager more evidence to use to evict you.
• If the manager believes you should be evicted, you will get a notice with a hearing date. You should also get information about the hearing process and your rights during that process.
• Don’t miss your hearing date. This alone could get you evicted.
• Before your hearing, you have a right to see any papers and materials that may be used against you at your hearing.
• At your first hearing date, the Housing Authority is likely to try to convince you to sign a “stipulation” that will end the case without a hearing and allow you to stay in your apartment IF you agree to all of the Housing Authority’s conditions. These rules are often far more burdensome than anything NYCHA could make you do after a hearing. (See below). Read this stipulation carefully and do not feel pressured into signing it. It is usually a good idea to show it to someone else – a lawyer, advocate, friend, or family-member – and to discuss whether to sign it. Some common stipulation conditions included are:
  • Several years of probation, during which breaking even one minor rule can lead to your eviction.
  • Permanent exclusion of a member of your household – meaning that this person may not visit your apartment ever, even after your probation period has ended
  • Allow NYCHA employees to enter your apartment at any time to check to see whether someone who has been “permanently excluded” is there.
• If you decide not to sign the stipulation but to go ahead with the hearing, make sure you are ready to make your case:
  • You have taken steps to fix whatever problems led to arrests in your apartment or of people connected to your household
  • You have documented evidence of those steps (evidence that charges are dismissed, that the person is in treatment or in a program, that the person doesn’t live with you, etc.)
  • You have other evidence of your good standing in the community (such as letters of reference from neighbors, employers, pastors, or other community leaders)
• A lawyer or someone else may represent you
  • If you’re not going to be ready by the date of the hearing, you can usually get it postponed (or “adjourned”) at least once, but you must make the request in advance.
  • If you do miss your hearing, go to the main Housing Authority office immediately. If you have a good excuse – like a medical or family emergency – they may reschedule your hearing.
• After the hearing, the Hearing Officer will choose one of five outcomes:
  • You can be evicted
  • You can be allowed to stay in your home, with probation for up to one year
  • You can keep your apartment but you must permanently exclude a member of your household who was involved in criminal activity
  • You can keep your apartment but are referred to social services for help
  • You can keep your apartment without any condition

5. If one person in my household gets arrested will we all get evicted?

• Not necessarily. A Housing Authority can choose to evict only the person who was arrested or otherwise involved in “criminal activity.”
• Often, the Housing Authority will agree that instead of evicting an entire household, it will allow the head of the household to “permanently exclude” the person who was engaged in illegal or “non-desirable” activity. If you choose this, it will usually come with a probationary period. During a probationary period, even breaking one small rule can cause eviction of your entire household.
• Remember, exclusions are often permanent, and continue even after the period of probation ends. Housing Authority employees can and will check up on your household to discover whether an excluded individual is visiting, especially on weekends, holidays, and birthdays.

Private Housing

If you live in private housing and are arrested for a drug-related offense in your apartment or building, your landlord may try to evict you while your criminal case is still open. It is important to delay the eviction process so that no decision is made until the end of your criminal case. Go to www.lawhelp.org/ny to find a lawyer who can represent you in housing court.

1. Can a private landlord refuse to rent an apartment to me because of my criminal conviction?

• Yes, but federal and state law prohibit private landlords from taking certain actions. Landlords of buildings with four or more apartments cannot have a policy of refusing to rent to all people with criminal convictions under the Federal Fair Housing Act and State and City Human Rights Laws.
• Additionally, if your conviction is for substance abuse, your past substance abuse is a disability under state and federal law, and people with disabilities enjoy greater protection against discrimination under the Americans with Disabilities Act.
• Finally, you are protected by the state and federal Fair Credit Reporting Acts as described in the next answer.

2. How do landlords get my criminal history?

• Most landlords get information about your criminal record from credit reports, which are subject to the federal and state Fair Credit Reporting Acts. In New York, such reports cannot show convictions for violations (which are not crimes).
• New York City landlords cannot ask for your social security number, but they are usually able to obtain credit reports with your name and date of birth.

Convictions preventing you from living in New York City Public Housing and Section 8

The following chart represents some of the convictions that will prevent you and your household from access to Public Housing and Section 8 housing.

NYCHA Public Housing

Section 8 Housing