On Tuesday, January 21, 2020, Oakland became the first California city to prohibit landlords from asking prospective Oakland tenants about their conviction history by banning the box requesting an applicant’s criminal history on initial rental applications or during the applicant process. Codified at Oakland Municipal Code Chapter 8.25, Article I, the Oakland Fair Chance Housing Ordinance, which is already in effect, also prohibits landlords from conducting criminal background checks on applicants. Unscrupulous landlords who ignore the Oakland Fair Chance Housing Ordinance face lawsuits carrying severe penalties.
Oakland Units Covered by the Oakland Fair Chance Housing Ordinance
The Oakland Fair Chance Housing Ordinance covers all residential housing, including illegal units, in Oakland. However, certain units are not covered. Exempted units include:
- Single-family homes where the owner occupies the home as their principal residence;
- Rental properties with three or fewer units, where the owner occupies one unit as their principal residence;
- A rental unit previously occupied by the owner, where the owner maintains a right to return in a written lease agreement with the tenant;
- Tenants renting parts of the unit to subtenants or co-tenants provided they will remain in the unit;
- Tenancies receiving tenant-based vouchers, such as the Section 8 program; and,
- Units subject to affordability and related requirements, such as the State Density Bonus Law. Oakland Municipal Code § 8.25.020.
Does the Oakland Fair Chance Housing Ordinance Ban the Box on Rental Applications?
Yes, the Oakland Fair Chance Housing Ordinance bans the box by prohibiting landlords from asking applicants about their criminal history on initial rental applications or during the application process. Oakland Municipal Code § 8.25.030. Additionally, landlords may not verbally ask about an applicant’s criminal history. This prohibition exists throughout the entire screening process. Oakland landlords are prohibited from discovering an applicant’s conviction history.
Does the Oakland Fair Chance Housing Ordinance Ban Background Checks During the Rental Application Process?
Yes, the Oakland Fair Chance Housing Ordinance bans background checks during the rental application process. Oakland Municipal Code § 8.25.030. Landlords may not conduct a background check on prospective Oakland tenants. This prohibition exists throughout the entire screening process. Oakland landlords are prohibited from discovering an applicant’s conviction history.
Does the Oakland Fair Chance Housing Ordinance Prohibit Landlords from Discovering All Conviction History?
No, the Oakland Fair Chance Housing Ordinance does not cover lifetime sex offenders. Oakland Municipal Code § 8.25.030. Oakland landlords may review the California sex offender registry when screening applicants. However, before being able to check the registry lawfully, Oakland landlords must:
- State its lifetime sex offender screening requirement in the written rental application;
- Inform the applicant in advance that it will check the sex offender registry;
- Request the applicant’s written consent;
- Refrain from discovering the information until after providing a rental agreement conditioned on meeting the landlord’s sex offender screening requirement.
Additionally, the Oakland Fair Chance Housing Ordinance permits certain landlords to conduct criminal background checks to comply with federal or state laws. For example, public housing landlords may inquire into an Applicant’s conviction history as required by the Ineligibility of Dangerous Sex Offenders for Admission to Public Housing law (42 U.S.C. § 13663(a)) and the Ineligibility of Individuals Convicted for Manufacturing Methamphetamine on Premises of Federally Assisted Housing for Admission to Public Housing and Housing Choice Voucher Programs law (24 C.F.R. § 982.553). Oakland Municipal Code § 8.25.030. However, the Oakland Fair Chance Housing Ordinance requires the landlord to first comply with the following:
- Inform the applicant in advance that it will check for certain conviction history; and,
- Obtain the applicant’s written consent to the conviction history check.
Any denial of housing may only be based on state and federal requirements.
After Lawfully Reviewing Conviction History, What Must Landlords Provide an Applicant When Denying Housing?
As stated above, some Oakland landlords are exempt from the Oakland Fair Chance Housing Ordinance. Where a landlord is permitted to inquire into an applicant’s conviction history, and denies housing, the landlord must provide the applicant the following written information:
- Written notice including the reason(s) for the denial of housing;
- Information on filing a complaint with the Oakland City Government;
- A list of local legal services providers and their contact information;
- A copy of any criminal history background check report, or other information related to the applicant’s criminal history that is the underlying reason for the housing denial; and,
- An opportunity to respond to the housing denial. Oakland Municipal Code § 8.25.030.
Can Landlords Charge Applicants for Criminal Background Checks?
No. The Oakland Fair Chance Housing Ordinance explicitly prohibits landlords from passing the cost of procuring a criminal background check or report onto applicants. Oakland Municipal Code § 8.25.030.
Oakland Fair Chance Housing Ordinance’s Other Important Prohibitions
The Oakland Fair Chance Housing Ordinance also mandates that covered landlords comply with the following requirements:
- Refrain from posting housing advertisements and listings discriminating against applicants with conviction histories;
- Include a City published multi-language notice informing applicants of their Oakland Fair Chance Housing Ordinance rights in applicant materials, on websites, and in leasing offices;
- Maintain applicant criminal background checks for at least three years;
- Keep criminal history obtained confidential; and,
- Affordable housing providers must submit a certificate of compliance to Oakland annually. Oakland Municipal Code § 8.25.040.
Can Landlords Retaliate Against Oakland Tenants & Applicants for Exercising their Oakland Fair Chance Housing Ordinance Rights?
No, any landlord retaliation following a tenant exercising their Oakland Fair Chance Housing Ordinance rights is prohibited. Oakland Municipal Code § 8.25.050. Examples of retaliation include, but are not limited to:
- Unjustifiably denying housing despite an applicant providing sufficient evidence that their prior conviction is not a valid bar to housing;
- Charging more rent to tenants with conviction histories;
- Requiring tenants with conviction history to pay a higher security deposit;
- Failing to permit a tenant’s family member to move into a unit due to conviction history;
- Denying housing following an applicant refusing to respond to a conviction history question on an application; and,
- Evicting a tenant who reports a landlord’s violation of the Oakland Fair Chance Housing Ordinance to the City of Oakland.
Can I Sue My Landlord for Violating the Oakland Fair Chance Housing Ordinance?
Yes, tenants and applicants can sue landlords in court. The Oakland Fair Chance Housing Ordinance contains a private right of action.
Money Damages Available to Tenants & Applicants Under the Oakland Fair Chance Housing Ordinance
Any person who suffers a rights violation or retaliation under the Oakland Fair Chance Housing Ordinance may submit a complaint to the City of Oakland or file a lawsuit in court. Oakland Municipal Code § 8.25.060.
Upon filing a civil lawsuit, an aggrieved person is entitled to recover the greater of three times their actual damages, including emotional distress damages or one months’ rent for the unit in question, or the HUD Small Area Fair Market Rent amount. Id. California courts are empowered to award punitive damages. Id. Additionally, attorney fees and court costs are recoverable to the prevailing party. Id.
Where the City Attorney files an action, civil penalties may be assessed against the landlord. Id.
This article originally appeared on the Astanehe Law website. Sue Oakland Landlords for Oakland Ban the Box violations. Contact Astanehe Law for assistance.
