Criminal History Screening After HUD Withdrew Its Guidance: What Changed and What Did Not

What HUD Withdrew

For most of the last decade, the reference point for criminal history screening was a 2016 memorandum from HUD's Office of General Counsel titled Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. That document is the source of the framework most landlords learned: do not deny based on arrest records alone, avoid blanket bans on anyone with a conviction, and conduct an individualized assessment that weighs the nature and severity of the offense, the time elapsed, and evidence of rehabilitation.

HUD's Office of General Counsel withdrew that memorandum along with twelve other guidance documents, effective September 25, 2025. HUD stated that parties should not rely on the withdrawn materials as authoritative guidance. A related 2022 memorandum from the Office of Fair Housing and Equal Opportunity implementing the 2016 guidance was also rescinded, as was Notice PIH 2015-19 and H 2015-10, which had addressed the use of arrest records in decisions about federally assisted housing.

It is important to be precise about what a withdrawal is. HUD removed documents that explained the agency's interpretation of the Fair Housing Act. It did not and could not amend the Fair Housing Act, which is a statute passed by Congress, and it did not vacate any court decision interpreting it. The guidance is gone. The underlying law it was interpreting is not.

Who the November 2025 Secretary Letter Applies To

On November 26, 2025, HUD published a letter from the Secretary on criminal screening responsibilities, directing public housing agencies and owners of HUD-assisted housing to screen for criminal history before admission, to monitor assisted households, and to devote resources to property safety. This letter is addressed to the federally assisted housing world. A private landlord renting a conventional unit with no federal subsidy is not the audience for it and gains no new obligations from it. Owners who do participate in HUD programs should read the letter itself and confirm their program-specific requirements with counsel, because the admissions and termination rules there are separate from the general Fair Housing analysis discussed below.

The Disparate Impact Proposal

The second piece of the shift concerns disparate impact, the theory under which a facially neutral policy can violate the Fair Housing Act because it falls disproportionately on a protected class. HUD's regulation implementing that theory sits at 24 CFR 100.500, within subpart G of part 100.

On January 14, 2026, HUD published a proposed rule, HUD's Implementation of the Fair Housing Act's Disparate Impact Standard, that would remove and reserve subpart G in its entirety and strike related language from Section 100.5(b). The comment period closed on February 13, 2026, and drew substantial opposition, including a multistate comment letter from state attorneys general. As of this writing the proposal had not been published as a final rule, and the rulemaking has been reported as pending at the Office of Management and Budget. Anyone relying on the current state of this rule should check the Federal Register directly, because the position may have moved by the time you read this.

Even if the regulation is removed, the theory does not disappear. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, decided in 2015, the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act. Removing an agency regulation does not overrule a Supreme Court construction of the statute. The practical effect would be to leave the standards to the courts rather than to eliminate the exposure, which for a landlord means less clarity rather than less risk.

What Did Not Change

The Fair Housing Act still prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. Those seven federal protected classes are unchanged by anything HUD has done in the last year, and private enforcement through the courts is unchanged as well.

Intentional discrimination has never depended on the disparate impact framework. A criminal history policy used as a pretext for excluding applicants of a particular race remains straightforwardly unlawful under a disparate treatment theory, and that theory is entirely unaffected by the withdrawal of guidance or by the proposed rule.

Nor did the withdrawal change the underlying factual premise the guidance rested on, which is that criminal justice involvement is not evenly distributed across racial groups in the United States. A blanket exclusion of anyone with any record still produces a disproportionate effect. What has changed is that HUD is no longer publishing a document telling landlords how it evaluates such policies, which removes a roadmap for compliance rather than removing the underlying question.

State and Local Law Is Now the Sharper Constraint

For many landlords, the binding rules on criminal history screening were never federal guidance in the first place. A number of states and municipalities have enacted fair chance housing laws that impose specific, enforceable requirements, and none of them were affected by HUD's withdrawal.

New Jersey's Fair Chance in Housing Act, effective January 1, 2022, was the first statewide law of its kind. It generally prohibits a landlord from asking about criminal history on the application or before extending a conditional offer. The landlord runs ordinary economic screening first, makes a conditional offer, and only then may consider a defined and time-limited category of criminal history. Seattle's Fair Chance Housing ordinance took effect in 2018 and has since been partially narrowed by litigation. Following a 2023 court ruling, the city stopped enforcing the portion barring landlords from inquiring about criminal history while continuing to enforce the prohibitions on requiring disclosure and on taking adverse action based on that history. Similar ordinances exist in other jurisdictions, including Cook County, Illinois, and cities such as Portland and Richmond, California.

These laws vary substantially in what they cover, which lookback periods they permit, what notice they require, and how they are enforced. The details also change. Any landlord operating in a jurisdiction with a fair chance ordinance should confirm the current text of the local rule rather than working from a summary, and should assume the local rule is stricter than anything federal law requires.

Why Individualized Assessment Is Still the Defensible Default

The individualized assessment framework did not originate as a HUD invention that vanishes with the guidance. It reflects how courts have generally evaluated exclusionary policies, and it is what several state and local fair chance laws affirmatively require. Abandoning it because the federal guidance was withdrawn would be a poor trade of a modest amount of process for a meaningful increase in litigation exposure.

In practice the framework is not burdensome. Write down what criminal history is disqualifying and why it relates to the safety of residents and property. Set a lookback period rather than reaching back indefinitely. Do not count arrests that did not result in conviction, and do not count sealed, expunged, or dismissed matters. Then give the applicant an opportunity to provide context before the decision is final, including evidence of rehabilitation, time elapsed, employment, and the circumstances of the offense.

Two further points are worth stating. Convictions for the illegal manufacture or distribution of a controlled substance are treated differently under the Fair Housing Act than other convictions, and the statute is explicit on that point, so an exclusion tied to that specific category stands on different footing than a general criminal history policy. And a policy applied consistently to every applicant, documented at the time of the decision, is far easier to defend than a policy that exists only in the landlord's head. Because this area is now less settled at the federal level and more variable at the state level, this is a topic to raise with a local attorney rather than to resolve from an article.

Record Accuracy and FCRA Obligations Are Unaffected

Whatever happens to the Fair Housing analysis, the Fair Credit Reporting Act operates independently and has not changed. If criminal history reaches the landlord through a tenant screening report from a consumer reporting agency, the landlord is a user of a consumer report with the obligations that role carries.

Two of those obligations matter most here. The landlord needs a permissible purpose, which an applicant's own request to rent supplies, along with disclosure and written authorization consistent with the agency's requirements. And if the decision to deny, to require a higher deposit, or to require a cosigner is based in whole or in part on information in the report, the landlord must provide an adverse action notice identifying the agency, stating that the agency did not make the decision, and informing the applicant of the right to a free copy of the report and to dispute its accuracy.

Accuracy deserves particular attention with criminal records, because these files are assembled from court dockets at scale and mismatches are common. Records attach to the wrong person through common name and date-of-birth collisions, a single case appears multiple times because it was filed and amended, and dispositions that should suppress a record do not always propagate. When an applicant says a record is not theirs, the dispute runs through the reporting agency under FCRA reinvestigation procedures, and it is generally worth pausing the decision until that resolves rather than denying on a record that may not survive review.