NJ Division on Civil Rights proposes rules to implement Fair Chance in Housing Act

TRENTON, NJ — Acting Attorney General Andrew J. Bruck announced Sept. 7 that the Division on Civil Rights has proposed new rules to help increase housing opportunities for people with criminal records and reduce the likelihood that housing instability will lead them to commit another crime.

The proposed rules will implement the Fair Chance in Housing Act, which Gov. Phil Murphy signed into law in June. The law bars landlords from asking about criminal history on housing applications in most instances, and reflects the Murphy administration’s commitment to dismantling systemic racial disparities in New Jersey, according to a press release.

A virtual community roundtable focused on the Fair Chance in Housing Act is scheduled for Wednesday, Sept. 22, from 6 to 7:30 p.m. Bruck will serve as moderator for the event, which will feature discussion of the law by a speakers’ panel including representatives from DCR and community organizations. Members of the public can register at https://tinyurl.com/2e2fx76w and have the option to submit questions in advance.

“Everyone in New Jersey should have a fair chance to find safe and affordable housing,” Bruck said. “But for too long, having a criminal record has made it too hard for too many people to find a place to live, and that burden has fallen disproportionately on people of color. Gov. Murphy and the Legislature have helped even the playing field with the Fair Chance in Housing Act. Today’s proposal by the Division on Civil Rights moves us one step closer towards real equity in housing.”

“The Fair Chance in Housing Act ensures that New Jerseyans have just that — a fair chance when they apply for housing — requiring that landlords consider applicants for tenancy based on their own merits, rather than relying on assumptions based on their criminal history,” Division on Civil Rights Deputy Director Rosemary DiSavino said. “The new law and rule will further prevent discrimination in housing in our state by setting forth clear and fair guidelines around how landlords can consider applicants’ criminal history throughout the housing application process, rather than disproportionately rejecting people of color based on disparities in our criminal justice system.”

With limited exceptions, the Fair Chance in Housing Act and rules proposed by the DCR will bar landlords in New Jersey from requiring prospective tenants to fill out an initial application that includes questions about their criminal background. Likewise, the act and the rules will bar landlords from running a criminal background check on an applicant until a conditional offer of housing has been made. Only after otherwise approving an applicant and making a conditional offer will a landlord be able to ask about the applicant’s criminal history or conduct a criminal background check.

Even then, additional requirements will need to be satisfied before the landlord may reject an applicant based on the applicant’s criminal history. And, in most cases, landlords will not be permitted to deny housing to someone simply because they have a criminal record.

Before the act’s passage, housing providers were not explicitly prohibited from inquiring about applicants’ criminal histories on initial application materials and rejecting them on that basis, even if the record included only a minor infraction unrelated to eligibility as a future tenant. Because of existing racial disparities in the criminal justice system, this had a racially disparate impact on communities of color in New Jersey.

Under the act and proposed rules, a landlord who has issued a conditional offer to a housing applicant will only be permitted to rescind that offer based on the applicant’s criminal history in certain circumstances. Specifically, the landlord will be permitted to consider the applicant’s criminal record only if the applicant has a criminal conviction and if the conviction meets certain requirements relating to the seriousness of the offense and how much time has passed.

In these circumstances, a landlord will be permitted to withdraw a conditional offer if the withdrawal is necessary to fulfill a substantial, legitimate and nondiscriminatory interest. However, landlords who withdraw a conditional offer will need to provide written notice to the applicant explaining the specific reasons for the decision, and provide an opportunity for the applicant to show the criminal history at issue contains errors or offer evidence of rehabilitation or other mitigating factors.

In addition, with limited exceptions, housing providers will not be permitted under the proposed rules to discriminate in advertisements, notices or other publications against those with criminal records by indicating that they will not consider anyone with a criminal record. Exceptions to the law’s screening and advertising requirements will exist for convictions subjecting the applicant to lifetime registration as a sex offender and for convictions for the manufacture or production of methamphetamine on the premises of federally assisted housing.

The proposed rules also will establish procedures for enforcement of the law by DCR. Any individual who believes that a housing provider has violated a provision of the Fair Chance in Housing Act will be able to file a complaint with DCR within 180 days of the alleged violation. If DCR conducts an investigation that identifies a violation, DCR may impose penalties and other remedies.

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