Something changed here recently and a lot of landlord advice has not caught up. On November 25, 2025, HUD published a letter rescinding three of its own documents on criminal screening, including the 2016 Office of General Counsel guidance that had told housing providers blanket criminal history bans were likely to lack a legally sufficient justification.
What did not change is the law underneath it. The Fair Housing Act is a statute, the discriminatory effect rule at 24 C.F.R. § 100.500 is a regulation still in force, and neither was touched by a letter. Guidance interprets law. It is not the law.
That regulation is itself under review, which is worth knowing before you plan around it. HUD published a proposed rule on January 14, 2026 that would remove subpart G of part 100, the subpart § 100.500 sits in, and leave disparate impact entirely to the courts. A proposal is not a rule. As of this writing § 100.500 applies, and if HUD finalizes the removal the case law it was codifying does not disappear with it.
So the safe move for a small landlord this week is not to loosen anything. It is to check what your own state and city require, because that is where the binding rules on this subject now mostly live.
What a report is even allowed to contain
Start with the Fair Credit Reporting Act, which limits what a consumer reporting agency may put in front of you at all.
15 U.S.C. § 1681c(a)(2)
no consumer report may contain civil suits, civil judgments, and records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.
15 U.S.C. § 1681c(a)(5)
no consumer report may contain any other adverse item of information, other than records of convictions of crimes, which antedates the report by more than seven years.
Two things follow. Arrests that did not lead anywhere age off a report after seven years, and convictions carry no federal time limit at all.
That is a federal floor and not a permission slip. Several states cut the window much shorter for tenant screening, and a provider selling into those states will filter accordingly. If a report hands you something outside the limit, the report is wrong, which is a reason to question the rest of it too.
An arrest is not a conviction, and never was
HUD’s rescinded 2015 notice made this point at length. The point survives the notice, because it does not depend on the notice.
An arrest record establishes that someone was accused. It does not establish that anything happened. Using arrests as a decision input is weak evidence dressed as a fact, and in a jurisdiction with a fair chance law it is often flatly prohibited. New Jersey, for example, bars housing providers from considering arrests or charges that did not result in a conviction, along with expunged convictions, pardoned convictions, vacated convictions, juvenile adjudications, and sealed records (N.J.S.A. 46:8-52 et seq.).
Write that into your criteria as a line: convictions only.
The state and city layer is now the one to read
Federal guidance moved. State statutes and municipal ordinances did not, and they are considerably more specific than any guidance ever was.
New Jersey’s Fair Chance in Housing Act is a useful example of the shape these laws take, because most of them work the same way:
- No criminal history question on the application or in the advertisement, with narrow exceptions
- The check happens only after a conditional offer of housing
- A disclosure statement telling the applicant they may present mitigating factors
- Lookback windows by offense degree: six years for first degree, four for second or third, one for fourth degree, measured from conviction or release
- No time limit for a short list of the most serious offenses
Other states and a number of cities run their own version, with different windows and different procedures. There is no shortcut here. Find your state’s statute and your city’s ordinance, read them once, and note the date you read them.
Why an individualized assessment is still the defensible habit
A blanket rule is easy to administer and hard to defend, and the reason has not gone anywhere.
Under 24 C.F.R. § 100.500, a facially neutral practice can be unlawful where it produces a discriminatory effect, is not necessary to a substantial, legitimate, nondiscriminatory interest, and could be served by an alternative with less discriminatory effect. That is a three-step burden-shifting framework, and it applies to any practice, not just this one. The Fair Housing Act itself still reaches conduct that makes a dwelling unavailable because of a protected characteristic (42 U.S.C. § 3604(a)).
An assessment that looks at the nature and severity of the offense, how long ago it happened, and what the applicant has done since is the practice that answers step two honestly. “Any felony, ever, no exceptions” does not answer it at all, and a landlord who cannot say what risk the rule is measuring is a landlord with a hard afternoon ahead.
What to write in your criteria
Four lines, adapted to whatever your state requires:
- Convictions only, never arrests or charges that did not lead to a conviction.
- A lookback window, stated in years, that matches or is shorter than what your state allows.
- The specific offense categories relevant to the safety of residents and the property, named rather than implied.
- A stated opportunity for the applicant to provide mitigating information before a final decision.
Then apply it in the same sequence for everybody, which is the part that carries the weight. Fair housing compliant screening criteria covers how the rest of that page should read.
Two obligations that attach after the decision
If a consumer report contributed to a denial, the Fair Credit Reporting Act requires an adverse action notice naming the agency, stating the agency did not make the decision, and telling the applicant about the free copy and the dispute right. Adverse action notices covers the contents.
And where your state runs a conditional-offer regime, the sequence itself is an obligation. Asking before the offer is a violation whether or not the answer changed anything. How to run a tenant background check walks the order the steps belong in.
What to do with the change
Not much, if your criteria were already written the way they should be. The rescission removed an interpretation, not a statute, and a landlord running convictions-only criteria with a stated lookback and a mitigating-factors step is in the same position this year as last.
If your policy was a blanket ban that you were nervous about, the honest read is that it is still exposed, and the source of the exposure has shifted from federal guidance to your state’s statute and the effects rule. Keep the criteria, the check, and the decision on one record so the process is describable when it needs to be: that is what screening in LeaseRooster is for, and it is worth having in place before anyone asks.
This is general information, not legal advice. Rules change and local ordinances vary. Confirm current requirements with your city, county, or an attorney before you act.