“Just Housing Ordinance & Criminal Background Screening” – KSN landlord/tenant attorney Jessica Ryan discusses the Cook County Just Housing Ordinance & criminal background screening in Chicagoland and Illinois residential rentals. Topics include adhering to updated laws (federal and state plus local ordinances), landlord responsibilities, liability, potential violations, and more. (51 mins).
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Episode Transcription
Bernie: You’re listening to the KSN Podcast and on this episode, we’re discussing the just housing ordinance and criminal background screening impacting Illinois landlords and rental property managers. Welcome to the KSN podcast, where you’ll hear from KSN attorneys as they share their experience and insight on legal issues surrounding community associations, collections, property tax appeals, and landlord tenant law. This episode is an edited replay of our March 15th, 2023, webinar presented by KSN attorney Jessica Ryan. Jessie discussed just housing ordinance and criminal background screening impacting Chicagoland and Illinois residential rentals. Topics included adhering to updated laws, landlord responsibilities, liabilities, potential violations and more. Jessica Ryan is a principal at KSN. She is the head of the landlord tenant department and has extensive experience in assisting landlords and property managers with rental property issues including evictions, building code violations, third party tenants and vendor disputes, lease and contract review, compliance with state statutes and local ordinances including the Chicago Residential Landlord tenant ordinance or the RLTO as well as the Cook County Residential Tenant Landlord Ordinance, the RTLO. KSN is an experienced legal resource ready to provide you with quality advice and exceptional service. We look forward to demonstrating how we’ve earned the trust of thousands of clients since 1983. If you’d like to reach Jessie or any of KSN’s experienced attorneys, please call 855-537-0500. You can also visit ksnlaw.com and complete the contact form to send us a message.
Jessica: I am Jessie Ryan, I’m a partner here at KSN. I have been with the firm, I can’t even believe this, 22 years now. I’m the head of our landlord tenant department here. Today, we are going to talk about the Cook County Just housing ordinance. This is a little bit of a refresher. I’ll go through the history of it and the background. Feel free to email me. If you’re already one of our clients and I work with you all the time, you know my email and phone number. If you are not yet a client, then please fill out your information at www.ksnlaw.com/lamp, L.A.M.P. That is our Landlord Multipurpose Assistance Program. I can get your information there and then be able to contact you and answer any questions that you may have. So today we are talking about the Cook County Just Housing Ordinance. The just housing ordinance was an amendment to the Cook County Human Rights Ordinance. So, the human rights ordinance has obviously been around for a long, long time. We call it the just housing ordinance. It was actually the just housing amendment to the Cook County Human Rights Ordinance if we’re going to be very specific.
So, this ordinance applies to screening any residential tenants in Cook County. So, to be very, very clear, this is a Cook County ordinance. It only applies to rental properties, landlords and rental property applicants in Cook County. Overall what the just housing ordinance did, what this amendment did is it added a new term covered criminal history as a new basis for discrimination and we’ll talk about what that term covered criminal history means but basically this ordinance said certain types of criminal history within a certain timeframe, conviction versus arrest, things like that, you cannot discriminate against an applicant just because they may have certain criminal history on their background check. Let’s talk a little bit more. The just housing ordinance set up this bifurcated screening process where it’s a two-step separated screening process and it added several required notices through the screening process. A very detailed process and requires these notices to go out. There are four different notices throughout the process and you can’t move on to the next step until you have issued each notice to the applicant.
So, to start, the bifurcation is split between the pre-qualification and then running the criminal background. The other really important thing to know about the just housing ordinance is that it limits criminal background checks to a three year look back period and then if a conviction shows up within the three years, you don’t get to automatically deny the applicant. You have to allow the applicant to submit documentation and then you perform what the counsel called; the commission called an individualized assessment for each applicant that has a criminal conviction in the past three years. There is an exception for sex offenders, anybody on the sex offender registry or with a residency requirement that excludes your property. So, let’s say the sex offender cannot be within a hundred feet of a school and your building is right next to a school in those cases you are allowed to deny the applicant based on sex offender registry status or residency requirements. And otherwise, once you go through the individualized assessment, you can only deny if there is a demonstrable risk to personal safety and or property. So, you are conducting this individualized assessment of the applicant to determine if there is a risk to people and property at your building.
Last but not least in the quote intro part, right? I’m covering a lot in the intro. This is very, very detailed, I promise we’re going to go through everything. It seems like I’m giving the details but just wait. Last thing to know is that there is a confidentiality requirement. You cannot share the criminal background check with any third parties at all. Obviously, this would not include your agents and employees. So, if you are a landlord property owner and you have a management company, that management company is your agent, it’s okay to share there. But it often comes up where maybe a condominium association wants a requirement that requires an investor owner who’s renting out their condo to share the criminal background check with the association board and in that case, that investor owner who’s the landlord is prohibited in Cook County from sharing the results of that criminal background check. So, you do have to be careful. You cannot share that criminal background check if you are a landlord or a rental property manager because there is that confidentiality requirement.
So, let’s get into some of these details. Notice number one. So, as I said, there are four notices that are required through this screening process. You have to issue a notice before you even collect the application fee. The tenant’s selection criteria have to be in this notice first and foremost. So, you have to outline what your selection criteria are, not just for criminal background but also including credit, income, rental history. Applicants have the right to provide evidence, you have to tell them that they have a right to provide evidence demonstrating inaccuracies within their conviction history or evidence of rehabilitation or other mitigating factors. So, you are telling them right from the get-go, if they have a criminal conviction, they will have this opportunity to provide documentation either showing it was inaccurate or showing all of the good work that they have done since that conviction. And last but not least, you have to include a copy of either the procedural rules for the just housing ordinance or a link to the commission’s website with the commission’s address and phone number.
So, you’re basically just putting little red flags at the bottom of the notice that say, Hey, if we do anything wrong, here’s the phone number where you can complain and ask for a violation against us. Another strike against landlords, which is not surprising in our area, but you have no choice. You have to give your applicants all of this information in the first notice, which must be given to them prior to collecting the application fee. The pre-qualification then will be conducted. Pre-Qualification means your credit income rental history, basically any background that you check for an applicant besides the criminal history and it’s very, very important to note, you cannot even inquire into criminal background at this stage. Meaning on your application you cannot have “have you ever been convicted of a felony? Are there any criminal proceedings pending against you?” Nothing. All of those questions must be removed from your applications for Cook County properties because the ordinance is very, very specific that you cannot inquire into criminal background until after this pre-qualification stage is completed.
So again, you’re completing the credit income rental history in this stage to see if they qualify there and once you have completed that, if they meet your standards, you are then going to issue another notice, and this is notice number two. Notice number two gives the results of the pre-qualification. Congratulations, you have qualified in our pre-qualification process or however you want to term it. Pre-Qualification, it is not one of the required terms of the ordinance I should say. It is a term that we’ve been using, other attorneys have been using. I think the commission’s interpretive rules may use it, but you can call it stage one of the application process if you want. As long as that stage is just the credit income, rental history, everything but criminal background. So, you give them the results that yay you have qualified and we can move on to stage two and there then in this notice you have to disclose, we are now going to run your criminal background check. That is the main purpose of notice number two is to say, at this time we are now running your criminal background check. Just make sure that you have this notice going out and that the timing of it is time stamped before you run that criminal background check. I know a lot of clients have put automated systems into place. Even a lot of the screening companies have incorporated these notices into their system so that these notices generate automatically as soon as each stage is completed.
So, if you’re ever sued or a class action is brought, God forbid, and you want to show that no you’ve been following it, you definitely want to be able to show a timestamp that this notice went out disclosing that you’re about to run the criminal background check before you actually ran the criminal background check. So, once you’ve sent out notice number two, then you can go ahead and run the criminal background check. You can only look back for convictions three years prior to the date of application. We have a question here, “Is the three years look back for convictions or when the crime was committed?” It’s going back to the date of the actual conviction. So if the crime was committed let’s say in 2018, but they didn’t end up with a conviction, there was a trial, they challenged it and the conviction didn’t hit their record until 2021, you can still consider that conviction because the conviction is the date you are looking for within the three year look back period. Just make sure you are not considering arrests. This is for convictions only. There’s another question, “Is battery considered a criminal conviction we can deny for?”
So, we’re going to talk a little bit about this individualized assessment, but I do want to say you can have no bright line rules anymore, which goes against everything that we have ever told landlords about screening applicants, right? We’ve always said have bright line standards, apply them equally to every single applicant that walks to the door. Do not give anybody preferential treatment because that’s going to result in a discrimination claim. Well, now we have this ordinance that says you have to take a look at each applicant individually and determine whether that person is going to be a demonstrable risk to persons and property. So, to answer the question, is battery going to qualify? Maybe and maybe not. And when we talk about all the individualized assessment requirements, I think I’ll be able to answer that a little bit more fully.
There is a question, “Can the disclosure that they sign when completing the application be enough notice that the background check is being completed?” No, notice number two requirement states that you have to send it with the results of the pre-qualification and then say we are about to run your criminal background check. So, if you are having them sign off on a disclosure at the time of filling out the application, that notice or that disclosure you’re having them sign, there’s no way it could have the results of their pre-qualification cause you haven’t done that stage yet. So, unfortunately that would not qualify. An important thing at this stage when you are running your criminal background checks is to talk to your screening company. If you work with a large screening company, they may already have this bifurcation process in place. I talked to several, I talked to Yardi about setting these up and how to do it and what the requirements were, and a lot of the big ones went forward and set up some type of bifurcation for their Cook County clients.
If not, you definitely need to figure out with your screening company or if you’re a small landlord and you’re using a broker, make sure that broker is properly screening the tenants because liability comes back to you as the landlord and property owner and you also have to make sure that you have set up your parameters with the screening company to only look back three years. It’s my understanding that in most cases you as the rental property managers and landlords are providing those parameters of convictions I should say you want to look for and how far back they should be looking for each of those types of convictions or charges and crimes. You need to make sure that you are setting those parameters to three years only so that your screening company cannot look back further than three years. It seems like a overkill, but it’s not because if you get a criminal background check that has convictions going back 10 years and then you end up denying that applicant because maybe he had a battery charge in the last three years and there was no evidence that he’s rehabilitated himself so you decided he’s a risk, but if he sues and your background check that you were looking at showed convictions going back 10 years, it’s going to be very, very hard for you to prove that you did not consider those in making your decision because the ordinance says a landlord cannot consider any convictions going back more than three years.
So you want to make sure that the criminal background check that ends up in your hands does not contain any convictions beyond that three-year point because having them in your possession could lead to liability even if you say, I ignored them, I ignored them, I ignored them, I denied him for this reason and that reason, it could be an uphill battle in court if you were to get sued. Really important to set up those parameters with your screening company from the get-go so that you’re not having these issues. Quick question here, and I’m glad someone asked this, “If denying an applicant due to insufficient credit income, not background related, then everything after the first step is moot?” Yes, that is correct. That notice number two that has the results of the pre-qualification would then just say, I’m sorry you have been denied based on your credit or your income or whatever it is, period and that is the end of that letter and you don’t have to worry about the rest of this ordinance and the rest of the notices.
All right, let’s move on a little bit to notice number three. So, for notice number three, you are going to be giving the results of the criminal background check when you have convictions within the prior three years. I will point out just like we talked about notice number two, if the criminal background check comes back clean and there’s no convictions within the last three years and they’ve met your other criteria, at this stage notice number three will be an approval letter. They’re approved and you can move forward with the leasing process. But if you do have a criminal background check that comes back with convictions within the prior three years, and you may want to deny them because the convictions are concerning, so you are not going to approve them at this stage, right? I mean sometimes there’s a criminal conviction and it’s minor and you don’t care anyway, and you’re going to approve them, go ahead and approve them. This notice number three is if you need to delve further into it to determine whether you should deny them or not. If you are giving this notice number three, you will have the results of the criminal background check and you must enclose a copy of the actual criminal background check in this notice.
The notice also has to give the applicant five days to dispute the accuracy of the results or to submit evidence of rehabilitation or mitigating factors. This notice is really, really important because it starts the five-day waiting period and I know that’s a long time when you are renting out a unit and we will talk about holding units at the very, very end, but you have to give them five days. If there’s a criminal conviction within the last three years, they get five days to come up with any type of evidence that they have rehabilitated themselves or to show the inaccuracy. So at this point, you’re waiting five days for a response from the applicant, if they do not respond, and it is a very concerning conviction where you believe they will be a risk to persons or property, you can deny them. If the applicant does respond with documentation and it may be anything, I mean it could be something from their probation officer or maybe a community organization leader saying that they’ve participated in different types of rehabilitation programs or community service. The parole officer saying that they’ve done everything they were supposed to do or down to anything to, you know, like Aunt Sue putting a letter on their behalf that you know, nephew Jimmy has done some wonderful things. Whatever they give you, you are required to consider.
At this point, you are required to perform an individualized assessment. In this individualized assessment, the ordinance and the commission’s rules that are attached to the ordinance say these are the types of things that you are supposed to consider; the nature and severity of the criminal offense and how recently it occurred, the number of the applicant’s criminal convictions, the length of time that has passed since the most recent conviction, which I think is a little bit odd because we know it’s going to be within the last three years. We’re not talking about convictions from 20 years ago, so that one isn’t really going to help because this just happened within the last three years. Obviously it’s recent, but that’s my take, right? What do I know? The age of the individual at the time that the criminal offense occurred. Well, it was in three years from now, how much younger could he or she have been? And then evidence of rehabilitation. You can see when I talked about– we used to always say bright line rule to avoid discrimination. You are now kind of doing everything that we as lawyers have told you not to do. You are looking at each applicant on an individual basis and considering all of these factors, using your discretion in a completely subjective process to determine if candidate A will be a demonstrable risk to persons or property. Is candidate B going to be a demonstrable risk?
One you might decide, well, you know, he’s got a little more evidence of rehabilitation or his evidence of rehabilitation seems a little more persuasive than this one. I’m not so sure and it would be very, very easy if you’re doing a lot of individualized assessments to end up making calls in a subjective way that could lead to discrimination, which scares us all, right? Nobody needs a class action lawsuit on their hands for discrimination. I’ve worked with clients, we usually kind of work together whenever we get an individualized assessment case come up to kind of really take a look at it and try to be as objective as possible. Some of my best practice recommendations, put this process with someone higher and the same person or team every single time. So if you have 15 different onsite managers, I think it’s better to kind of go up the chain and have somebody at a higher level to be reviewing all of these when they come in or the same two or three people at a higher level to review them. That will give a level of consistency versus having 15 different people each on site doing their own analysis. That is not going to give you consistency in your company.
Have some, I don’t want to say bright lines, but have some ideas in mind. Obviously violent crimes against people are going to raise a red flag and you’re going to have to see a little bit more evidence of rehabilitation or some mitigating factors to make you feel more comfortable that a violent crime is not going to be committed again and that this person is not a risk to the people in your building. Theft and identity theft, those could be red flags as well where you want to look a little bit more closely at those types of convictions and always look a little more closely at those types of convictions across the board for all applicants. Now, I’m not saying have bright line rules because they don’t want you to have bright line rules anymore. You have to consider each applicant with a conviction in the last three years on an individual basis but there are some ways to have some consistency to try to avoid a discrimination complaint. And the bottom line is keep really good records, keep a record of your rationale. In the end we would have to show that there was a reasonable business purpose behind the denial and so if we’re able to show well, there was this violent conviction within the last three years, he submitted a letter from his aunt, we really did not feel that that showed rehabilitation. There was no community service, no working with a rehab facility or anything like that. We need to be able to show that reasonable business purpose. In the three years since this has passed, I should have said this became effective January 1st, 2020, we have kind of been trying to adopt some ways to have some consistency in these decisions, which has been really, really important.
So, that is the individualized assessment. After that you’ll be issuing notice number four. Notice number four is your determination after the individualized assessment. If you have determined, I mean, and if they’re approved, fantastic. If they have really good evidence of rehabilitation or after all of this you decided that the crime was not that much of a risk, does not pose a risk and the person seems to have really come a long way in the last 18 months since it was committed, then go ahead and you approve them in notice number four and you move on and start the leasing process. If you are denying them, here’s what has to be included in notice number four, which is the denial after the individualized assessment. You have to provide an explanation of why the denial based on their criminal conviction is necessary to protect against a demonstrable risk of harm to personal safety or property. This is where I think you can get yourself into trouble with discrimination if you add too much detail here. If you are giving a three paragraph explanation of why candidate A is being denied and you go through what you didn’t like about his paperwork that he put in and why you didn’t think his rehabilitation was good enough and then candidate B, you give a three paragraph explanation as to why this person’s paperwork was good and it was okay and you decided it’s good enough to give them an approval but candidate B a denial and it somehow ends up after a few years of doing this that the denials have a higher ratio of a protected class, race, ethnicity, sexual orientation, and you get a discrimination complaint on your hands, they’re going to have all of the evidence they need to lay out why there was not a reasonable business purpose or why your rationale did not work correctly.
It’s my recommendation at this step if you are denying you have a very, very brief standard response, basically just saying that the denial for criminal conviction is necessary at this point, you know, based on the documents you have provided, we have performed an individualized assessment and we are required to deny based on your criminal conviction to protect against a demonstrable risk of harm to personal safety and or property and leave it at that instead of going into a very detailed explanation. I don’t know, I don’t have an answer from the commission and city council when they passed this, if they actually expected long-winded explanations from landlords which would expose landlords to liability. But so far in the last three years that has been my recommendation and I think it’s been the recommendation of other attorneys to keep it short and sweet and not go into too much detail and that has worked just fine.
The written denial has to also contain a statement informing the applicant of their right to file a complaint with the Human Rights Commission. Notice number one, you gave them the human rights commission name, phone number, website basically saying, here you go, you can file a complaint against us if you don’t like something we do. And then when you deny them, you give them all that information again and say, here’s the information again and you have the right to file a complaint against us. But it is required. So you have to make sure that you have the proper information in this last notice if it’s a denial. They get the right to have that information always going on the basis that we have the uneducated uninformed consumer as the tenant and so we are giving them as much information as possible so that they can act on their rights.
All right, holding the apartment while you are waiting for this five day period for them to turn in any documentation for this individualized assessment. The ordinance says you are not required to hold the apartment if you have other approved applicants. If candidate A comes back with criminal background, a conviction within the last three years and they get that five day waiting period and applicant B comes back with no criminal background, both have already passed, they both already pre-qualified if we’re at this point, so they’ve already passed your income credit rental history, you can offer that apartment to candidate B who had no criminal history, even though candidate A has this five day waiting period and still has the right to submit documentation. At that point you can tell candidate A, I’m sorry, but we’ve given the apartment to someone else, you can still finish your application, submit any documentation that you want, we’ll perform the individualized assessment for you and then if you are approved, we can add you to a wait list or maybe you have another unit that might be available for them but otherwise you can add them to the wait list if they are approved. Do not tell them that they have no further right to finish the application process. You want to let them know that they can continue to submit the documentation and you’ll go through the process and if approved, you’ll add them to a wait list. We don’t want anyone to think that they are denied without that individualized assessment having been performed.
I will say that the rules regarding the just housing ordinance that the Human Rights Commission issued did say in their very last sentence that the issue of whether an apartment should be held or not should be up for review about a year after the ordinance became effective and they said that a report would be issued by March, 2021. The report was issued, it was basically inconclusive and they have kind of put off this issue again. So there is no new deadline, but I think the issue will be up for review again. It appears that this is not as big of an issue as we had kind of been concerned about at first. You know, having a criminal conviction within the last three years does not always come up as often as you might think to perform this individualized assessment. Going through all of this isn’t as frequent as you might think. We were all kind of freaked out in November and December of 2019 and then on pins and needles for the first quarter of 2020 waiting to see how it would play out. It’s not as frequent as you might imagine.
I did have clients early on considering not even running criminal background checks because this process seemed so burdensome and so much room for liability if you miss a step, if you’re not performing the individualized assessment consistently throughout but I think that has passed. I mean, it is an option. It’s always an option if you don’t want to run a criminal background on a tenant. But I think it’s just not as bad as some people thought and especially because a lot of the screening companies have come around and kind of put things in place to help you.
Bernie: Since 1983, KSN has provided landlords with affordable comprehensive legal services. KSN can eliminate the need for multiple law firms to handle the broad spectrum of a landlord’s basic legal requirements. Through our landlord assistance multipurpose program or LAMP, landlords receive exceptional service related to their tenant-based issues. Some of the LAMP program features include residential and commercial evictions, review of leases, disclosures and vendor contracts, ordinance and code compliance, tenants and third party dispute, negotiations and resolution including local property ordinances laws and more. If you’re a landlord experiencing any tenant issues or legal questions, just visit ksnlaw.com/lamp.
Jessica: So let’s start looking at some of these questions. So first question, which is an interesting one, “Are home rule villages allowed to supersede this ordinance?” So this is a question that I have been asked numerous times, including by municipality leaders. There are municipalities that have past ordinances that say our municipality is not subject to the just housing ordinance. Simple as that. These ordinances have not been tested in the courts. I question whether they have the authority to just simply reject a county ordinance on its face. Under the Illinois Constitution, they do have the right to make their own home rules, but I just don’t know because this has not been tested in the courts. The properties that I work with in these certain municipalities that have passed ordinances like this, I just kind of give them the risk benefit. If you don’t follow the just housing ordinance, you might be subject to cook county penalties or discrimination complaint and our defense would be that you were following your municipal ordinance that rejected the just housing ordinance and hey, you guys are the Guinea pigs, and we go up to the appellate court and find out, if your municipality had the right to do that. On the flip side, if you follow the just housing ordinance and not your municipal ordinance, then you are not considering past criminal convictions that your municipality wants you to consider. In that case, you might have more criminal activity at your property that is going to get you in trouble with your municipality. So, it is a risk on both sides. I cannot say whether that ordinance will stand up in the appellate court. It is just yet to be seen.
“If Our screening shows more than three years, but we deny based on only what shows up within the last three years, that is okay, right? I hit on this a little bit. It concerns me because it will be difficult for you to show that you didn’t consider it. Having that information in front of you when you are making a decision to deny an applicant gives the presumption that you considered that information no matter what you say and I think it would be very, very hard if you were sued and you were sitting in the witness box, how do you convince a jury that you just didn’t look at that, you didn’t consider that. Yes, there was a murder eight years ago but that had nothing to do with your decision to deny the applicant. So my recommendation is to cut off the criminal background report at three years back from the date of the application. Don’t recommend that you get criminal background checks that have any convictions that are older than that three year mark.
“How Can and should landlords attempt to verify the legitimacy and relevance of documentation submitted? Should you attempt to verify the legitimacy?” Yes, you have every right to do so. You could call the parole officer and just have a quick conversation, but the ordinance does say that you should take the documentation kind of at its face value based on just what is given to you from the applicant. So, you should analyze it, you can verify the legitimacy, you could look up the probation officer’s name, make sure that they’re an active probation officer, and you could call the community organization leader just to confirm. Kind of like you would be doing an employment check and double check on everything, that can be part of your individualized assessment. You can even ask those individuals the questions that you are supposed to be looking into in your individualized assessment. You know, have they shown evidence of rehabilitation? Have they shown a commitment to change their ways and things like that? So, you definitely can do that. You are not required to do that. If you are going to do that, I suggest you do it on a consistent basis. So, you should also consider whether you want that burden every single time you are performing an individualized assessment. Keep that in mind. Sometimes call and talk to people and sometimes not. That is going to end up with a problem on your hands because you’re not treating them as equally as you possibly can under this ridiculously subjective procedure that they have set up.
“Any Implications for the ordinance to go statewide yet like source of income did?” I would not be surprised and if most of you know Cook County had had source of income as a protected class for years and years so that you could not discriminate against somebody based on their source of income like a housing voucher section eight or any type of rental subsidy. That as of January 1st has gone statewide. “Are There indications that it’s going to soon?” No, there are some things in city council and in the state that are more pressing by the tenants’ rights advocates right now. So, we have not seen bills trying to be pushed through for just housing. However, it took 8, 10, 15 years for source of income to expand from Cook County throughout the whole state. So, I would not be surprised for just housing to go statewide at some point in the future. You know, these are things that we keep an eye on. I work with the ChicagoLand Apartment Association on their board and their legislative committee to try and be on top of things and ready for things coming down the pipeline, so I keep my clients abreast. So, definitely sign up for our client blast. It’s these types of things that we send out when something all of a sudden raises its head at us like this. So, I would not be surprised. It has been the typical process in Illinois that something like this is passed in Chicago or Cook County and then eventually becomes statewide, but no indications as of yet.
“Do Private landlords have to do this as well? Private landlords in Cook County with only four occupied units?” Yes, there is not an exception like the RTLO or RLTO, this is for all residential rental transactions. So it does not cut between private or smaller investor owners and larger management companies. “How Does this affect municipalities that have crime-free ordinances or lease amendment requirements?” So, it does not change anything. Most of the crime-free ordinances, municipal ordinances, all over, so many municipalities around Chicago have these crime-free addendums that have to be attached. Those crime-free addendums prohibit crime being committed in the apartment during the lease. Those crime-free addendums do not state and the landlord must run criminal background going back eight years. So, I have not yet to see a municipal crime-free ordinance that has any requirements as to the landlord’s screening of the applicant. Those are all for crimes that might be committed in the apartment after the lease is in effect. So, two separate things; you still have to comply with your crime-free ordinances and attach those addendums and take whatever steps are necessary during the lease if there is criminal activity to comply with your municipality.
“Is There a timeframe that we cannot look at sexual assault? Do we need to look at the sex offender website to see what the parameters such as being around a school?” Yes. Usually screening companies will check for sex offender registry and residency requirements for sex offenders and let you know if somebody’s on a registry and then you can kind of look that person up and just double check and make sure that that residency requirement prohibits them from living in your building. As far as the background for a sex offense, and I assume that question was making a distinction between someone who’s on a sex offender registry, so maybe a small category where there was a sexual offense, a sexual conviction that did not put that person on the registry, that type of conviction you have to consider like any other criminal conviction within the last three years and perform the individualized assessment. You cannot just straight out deny like you could if they were on a sex offender registry and I hope I’m understanding the first part of that question correctly.
But again, like I said, there are certain convictions that will raise red flags and so having these violent crimes, sexual offenses, you have to take that into consideration when you are doing the individualized assessment. Obviously, that type of crime immediately makes you think that there could be a demonstrable risk to the people in your building. And so, therefore when you are doing the individualized assessment, if they submit documentation of their rehabilitation, you would want to see some strong evidence of rehabilitation. The letter from Aunt Sally is not going to cut it if there was a rape within the last three years. That can be one of those types of crimes where you are really looking for some strong evidence of rehabilitation to make sure you are keeping the rest of your residents safe.
“If You can’t list criminal history screening as one of the qualifications on our resident qualifications page, can you then deny someone for criminal history? Should it be worded differently instead of voided out completely from the qualifications?” Yes. So you can say that you will run their criminal history. So, this is in notice number one, you are giving your application criteria. A lot of it will be credit scores, rental income, how you’re looking at their income based on the amount of rent, you know, the ratio you’re going to use and things like that, rental history, no evictions, things like that. You can touch on criminal history and you can say a lot of my clients have kind of a very detailed criteria form that explains and once we have approved you on all of these things, we are then going to follow the just housing ordinance or the cook county municipal ordinance, blah blah blah blah and run your criminal background in compliance with the ordinance and if criminal convictions within the last three years come up, you will have the opportunity to provide documentation showing any evidence of mitigating factors or rehabilitation and blah blah blah blah blah blah. So you can talk about running their criminal background in the first notice, in the criteria or qualifications page that you are going to give them. You just can’t say if you have been convicted of battery in the last three years, we are going to deny, you can’t do that. You cannot have a list of offenses for which they’ll be denied cause there’s no bright line rules anymore. But you can definitely describe the process. I have some clients, like I said, go into detail. I have other clients that say if you are approved at stage one, we will then run your criminal background in compliance with Cook County municipal ordinance and do the section and not go into the whole big process. But yes, you can definitely talk about it.
“If We have children in our properties, can we deny a sex offender?” Yes, sex offenders, anybody on a sex offender registry and with a residency requirement can be denied. Like I said, if it’s a sex offender with a conviction who did not end up on the registry somehow, then you need to go through the individualized assessment process. Okay, I think we talked about this a little bit, but for condos, so I think there’s questions for condominium associations, “Landlords cannot share criminal background check info with the board?” Correct. So this should be a requirement in condominium rules. That is correct. That is what the condo side of our firm does recommend that the association adopt rules that comply, at least in Cook County, that comply with the just housing ordinance and you can have still the landlord is required to run a criminal background check, but instead of having the owner submit the criminal background check as evidence that they did it, we have like a certification form where the owner signs off certifying that they have run the criminal background check. Now, I mean there’s no way to actually hold their nose to the grindstone and confirm that they actually did perform the criminal background check but it can be in your rules and you can require them to sign a certification form that they did that.
Okay, so there’s a good question and I think– You know what, really quick, there’s a quick one that I’m going to answer first. “Can We say no felonies?” No, you cannot have a bright line rule for any particular category of convictions. If there is a conviction in the last three years, you have to run that individualized assessment. No bright line rules for certain categories of offenses. Really, really important. Here’s a question, “Let’s say we approve someone because we thought they have been rehabilitated and they commit a crime against one of our neighbors, are we going to be liable for approving them?” No, with a caveat of course, right? This is like the famous lawyer’s answer, it depends. So generally, landlords are not liable for the criminal acts of third parties unless you were put on notice that the criminal activity and that the criminal activity was foreseeable. If you have someone that you approved in compliance with the just housing ordinance, they had submitted evidence of rehabilitation, you would most likely be insulated from any liability because you can show that you made a proper decision based on all of this rehabilitation evidence.
On the flip side, if this person had been committing crimes against people in the building or doing stuff in the parking lot and you knew that there was continuing criminal activity that puts you on notice that this person has criminal conduct and is continuing to commit criminal conduct and then they actually hurt someone. That’s a case and I’m not saying it’s black and white because like any lawyer always says it depends, but that could be a case where someone could argue that that escalating criminal activity to the point where they hurt someone was foreseeable by you and you had done nothing. So, obviously if there was continuing escalating criminal activity, I would hope that you would be taking some action against that tenant anyway, but simply by approving them, following the just housing ordinance, you should not be liable for criminal activity.
I think the last few questions are kind of a little bit more specific. One just popped up, I’m going to answer this one. It’s going to be the last one and we will just wrap up here because we are coming to the end. “If The landlord chooses not to perform a criminal background check, can he be held liable if this tenant is later found out to be a sex offender or on a registry?” No. The burden really is on the applicant for knowing that they have a residency restriction and shouldn’t be living in that property. However, I do recommend to include something in your lease that says you cannot guarantee that no criminal activity will occur on the property and that every single applicant has no criminal history and will not commit crimes on your property. There’s some language that– just to kind of protect you and remind your tenants that you can’t be responsible for the criminal acts of third parties if they are not disclosing things or things going on but you do have the right to choose not to run criminal background. That is your choice.
That kind of wraps up everything with the just housing ordinance. Thank you for all the fantastic questions. I’m glad we got to kind of delve into some real day-to-day., I always call them the frontline issues because you guys are out there on the front lines dealing with this day today. And so, I’m always happy to help and assist you guys through all of these processes and believe me, I love having educated clients. So, I thank you guys all for attending today and if anyone has any questions, please feel free to reach out to me. Again, if you are not yet a client, I urge you to go to ksnlaw.com/lamp, L.A.M.P and fill out your information so that we can get in contact with you and answer any questions that you might have. Thank you guys all so much. Have a great afternoon.
Bernie: That was KSN attorney Jessica Ryan. Jessica is the head of KSN’s Landlord tenant Department. Our firm is an experienced legal resource ready to provide landlords and property managers with quality advice and exceptional service. We look forward to demonstrating how we have earned the trust of thousands of clients over the past 40 years. If you’d like to reach Jessie or any of KSN’s experienced attorneys, please call 855-537-0500. You can also visit our website, ksnlaw.com, and complete the contact form to send a message. Thanks for listening.
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Please note the material contained on the KSN Podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN Podcast. You should not act on the information discussed on the KSN Podcast without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information on The KSN podcast, the law can change quickly. Accordingly, please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the podcast, or the performance of the podcast generally. The KSN Podcast may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.