‘Ban the box’ for rentals: How Cook County landlords must adapt

by Meg White

To meet the ambitious goal of ameliorating the effects of the criminal justice system on housing, Cook County commissioners amended the county’s Human Rights Ordinance to include more provisions for housing-related issues. The effort is known as “Just Housing,” and as of Jan. 1, it is the law of the land.

What does this mean for property managers? In theory, it represents an overhaul of the tenant vetting system. Much like the “ban the box” initiative that now requires employers in many states to consider a candidate’s qualifications before investigating their criminal background, landlords have to look at tenants’ applications first, before asking about their history with law enforcement and incarceration.

“When an application is received, the housing provider needs to have a bifurcated screening process,” said Adriann Murawski, Chicago Association of Realtors’ director of government affairs for the city. “It’s really important that that checkbox does not exist” in the first part of the tenant screening process, asking tenants about their criminal history before they’ve shared their other qualifications as a renter.

When considering a potential tenant who has a criminal background, landlords must look at mitigating factors, such as how long ago the crime occurred or whether or not the conviction is related to a disability. If they do decide to deny housing to someone based on criminal history, they may have to show “demonstrable risk” to other tenants or property. Regardless, landlords are not permitted to consider crimes that go back further than three years, except in cases of sexual violence.

Denials have to be delivered in specific ways. A copy of the background check must be delivered to prospects within five days. The applicant then has five extra days to dispute the findings, after which the landlord has three business days to respond. Within five days of obtaining the background check, the housing provider must deliver a copy of the background check to the applicant by hand, certified mail, or electronic communication (text, email).

Of course, it might be hard for the county to know if a given landlord is abiding by these rules, which is why Murawski recommends brokers add forms or checklists, denoting the date when certain steps were taken, to the screening process.

“Protecting themselves with proper documentation would be very beneficial, though it’s not required in the law,” she said, especially when it comes to passing up candidates who do happen to have past convictions. “It would be important to document that an individualized assessment did occur.”

CAR is working on templates to help members set up these processes internally. But also, property managers and others in the space need to know that the law does require they make prospective candidates aware of their own rights under the new version of the law, including the criteria the landlord uses to make determinations, a description of how applicants are evaluated, and information on how prospective tenants can dispute inaccuracies and provide evidence of rehabilitation and mitigating factors.

They must also provide a copy of the new procedural rules or link to the county’s Just Housing website.

The county has frequently asked questions, definitions, queries that can be used in individualized assessment tools, and sample language for the types of information landlords are required to give to prospective tenants available at their website. Because they delayed the enforcement of the law until Jan. 31, Murawski said it appears that the intent of officials is not to play a game of gotcha.

“The county isn’t looking to find people who violate this and fine them,” Murawski said. “They’re really looking for a change in the way applicants are processed.”

This is an area where brokers can be an important conduit of information. Since housing providers are the ones who need to be in compliance of the law, it’s vital that multifamily property owners who outsource this screening task ensure their vendors and partners are also in line with this new reality.

For agents who work with mom-and-pop investors, “communicating that this new law is in effect and what to do” is even more necessary, according to Murawski. “Those smaller landlords who aren’t connected to an association — they’re at the highest risk.”

However, even if you have no connection with multifamily housing in Cook County, Murawski noted that seeing the larger context around this new rule is essential. The politicians who put forward these new regulations are working in an environment where national figures are looking to roll back fair housing protections they see as onerous, and are operating in a world where discrimination is still a real problem, so they’re incentivized to act on behalf of their constituents. “When they feel that they are being targeted, we have to listen and respond. … Advancing fair housing is a real opportunity for the real estate industry to take a lead on,” Murawski said. “While these additional forms might be somewhat burdensome, we still have a lot of work to do in fair housing.”

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