My “Aha Moment” arrived when I read the title of the Sun Times editorial, dated April 28, criticizing the County Board’s passage of the Just Housing Ordinance.

“Don’t punish landlords to make more housing available for ex-offenders.”

It was only a few days prior to a key Cook County Human Relations Committee meeting that I learned of the Board’s push to enact the Just Housing Ordinance (JHO), an act which prohibits property owners from inquiring about a prospect’s criminal background until after they have been conditionally approved. It seems clear that our County Commissioners deliberately cut the apartment community out of any meaningful dialogue on this consequential piece of legislation. As the Sun-Times headline suggests, this raises a troubling question:

Why would the County enact legislation “punishing landlords” for inquiring about a tenants’ criminal background?

Only a few years ago, the opposite was true. County and Police Task Forces punished landlords for failing to run criminal background checks or properly screen their applicants. Many of us in the Rogers Park community supported such action when the County could establish that property owners showed a callous disregard for who they put into their buildings.

Today, the pendulum has swung back – and now, believe it or not, under this new law property owners stand to be punished for improperly inquiring about criminal background.

Granted, there is a reason behind this legislation. We are all aware of problems our society faces with recidivism – the alarmingly high rate at which people released from prison soon find themselves violating their probation or being convicted of another crime, and returning to jail, with deep impact on the prisoner’s family. Most of us can only imagine the tremendous challenges ex-offenders face trying to reacclimate into normal society – developing a skill, earning a living and, yes, finding housing. Recidivism is a complicated problem – and there are no quick fixes or easy solutions.

But it is folly to think that the bifurcated process established by this new law will make any difference. Worse, it creates countless problems and liabilities the industry will face trying to follow rules, as of yet undrafted. For starters, consider the following:

  • When in the rental process can property owners finally inquire about a prospect’s criminal background?
  • What steps would need to be taken if the prior offenses disqualify that person from renting an apartment?
  • And what about the days that a unit stays off the market while these issues are resolved?

Of course, our society is growing increasingly more aware that many ex-offenders are entitled to second chances, and sound public policy can and should help ex-offenders pursue opportunities after they serve their time and attempt to rebuild their lives.

In the employment realm, various branches of government have passed different forms of “ban the box” legislation whereby businesses, seeking to hire someone, cannot ask about that person’s criminal background on an application. A prospective employer may only make that inquiry during an interview or after they have made a conditional offer. The law assures that a prospective employer judges an applicant according to their qualifications, and not their criminal history.

As to housing, HUD regulations already prohibit property owners from flatly denying applicants solely on the basis of criminal record, based on a concept called “disparate impact.” Under these guidelines, property owners must take into account a range of factors, including prior convictions, when assessing a prospective tenant’s qualifications. Under these guidelines, property owners are expected to weigh criminal history along with other criteria when making their decisions, including the length of time since the bad act or acts occurred, the severity of the acts committed, evidence of rehabilitation, and other factors.

With HUD guidelines in place, the JHO offers no meaningful benefit to ex-offenders seeking a chance to rent, and it unduly complicates and alters screening processes that all tenants will face throughout the County. I also think that many property owners may stop running criminal background checks at all.

Consider what happens when, in the second part of this bifurcated screening process, the property owner learns of criminal convictions that are of concern to him.

The Ordinance requires owners and managers to follow a complicated and thorough process:

“Before denying admission or continued occupancy, the landlord must provide the individual with a copy of the landlord’s tenant selection criteria, a copy of any criminal background check relied upon and an opportunity to dispute the accuracy and relevance of the conviction.

“Upon denying admission or continued occupancy, the landlord must notify the individual in writing the reasons why denial based on the conviction is necessary to protect against a demonstrable risk to personal safety and/or property of other.”

How is this notice provided and who provides it? What if our leasing staff – to shield us from Fair Housing claims – only receives the conclusion of a report, but not the specifics? How much time do we allow for a tenant to dispute the accuracy or relevancy of our denial and what happens if we disagree? The questions are endless, and I seriously doubt that many small operators will be equipped to deal with these requirements, which will be especially challenging for the owners of individual condo units. (What lawyer would one call for assistance? A property lawyer or one specializing in criminal law? Or do we ask our local beat cop?)

No matter how the County issues rules to help us navigate through these requirements, I see a veritable minefield where unsuspecting property owners can open themselves to litigation, either for failing to comply with the technical requirements of the new rules, or for possible conflicts between the requirement that we furnish an applicant with an Individualized Assessment and Fair Housing laws.

I believe a system that fosters a frank, open and honest discussion between a property owner or property manager and a prospective tenant would be far better. Many property owners direct their employees to ask potential renters prior to taking their credit check fee if there is anything in their background that might pose a problem. That offers those managers a chance to discuss former bankruptcies, previous evictions, blemishes on credit, and, yes, criminal background. The ensuing discussion often allows the parties to figure out solutions or – if none is likely to be found – prevent the prospect from wasting money on a background check fee that will not lead to approval.

With the restrictions and processes required by the JHO, and unknown penalties for non-compliance, expect to find landlords and property managers far more cautious and conservative – and less likely to freely discuss a prospective tenants’ situation.

Several more points:

  • What about localities that have enacted “crime-free housing” ordinances? What if the JHO conflicts with these existing laws?
  • What about condominium boards that require unit owners to run credit and criminal background checks on prospective renters? Are individual condo owners prepared to follow the rigorous processes in the JHO? Will condo boards change their rules?
  • Will small property owners, including “Ma and Pa” owners of two flats or other smaller rental buildings, be able to comply with the complexities of this new law, including creating a “tenant selection criteria” that the Ordinance requires them to provide to an applicant prior to issuing a denial. Do housing providers with only a small number of units also face lawsuits for failing to comply with the Ordinance’s strict requirements?

To truly resolve our County’s housing problems, the County Board ought to be encouraging experienced owners and rehabbers to invest in our neighborhoods and provide safe, secure and affordable housing.

The JHO creates yet another disincentive for property owners to do this. Instead, it creates enormous procedural burdens and places us on the defensive. The impact is likely to fall hardest on property owners in the South and West Sides and in portions of suburban Cook County where the affordable housing crisis is most severe. Fewer landlords will choose to invest in and create safe and secure buildings, resulting in less renovation activity and fewer housing options.

Commissioners – in my opinion, you have failed to adequately include owners of apartment properties when conceiving and passing this consequential ordinance. Property owners were willfully excluded from this process until it was too late to have meaningful input. You rushed the JHO through without properly considering the obstacles and challenges property owners will face trying to incorporate these requirements into our operations.

As a result, few people will benefit from this law. I urge you (the County Board) to reconsider and rescind the JHO. Rather than passing legislation that punishes housing providers, include us in a process where we can better understand the challenges faced by ex-offenders, and find solutions for those seeking to rebuild their lives who truly deserve their second chances.

Include us. Don’t punish us.