Last week, the New York City Council approved the Fair Chance For Housing Act (the “Act”) limiting what criminal history can be reviewed as part of an application for a residential sale or lease (excluding owner-occupied one or two family homes). The Act is to take effect January 1, 2025.

The Act very broadly defines a “criminal background check” to mean: 1. Asking an individual, orally or in writing, if they have a criminal history; or 2. Searching publicly available records, including through a third party, such as a consumer reporting agency, private database, or website, for information about an individual’s criminal history; or 3. Otherwise gathering records or information relating to an individual’s criminal history.

While a prior version of the Act barred almost all criminal background checks except sex offender registries, the Act as approved by the Council allows the following criminal history to be considered: 1. Any registered sex offense, 2. Any misdemeanor conviction where the individual was released from prison, if incarcerated, or sentenced if not incarcerated, within the past 3 years, or 3. Any felony conviction where the individual was released from prison, if incarcerated, or sentenced if not incarcerated, within the past 5 years.

If an applicant’s criminal history is eligible for review and will be considered, the following requirements are applicable: 1. First the lease or sale applicant must be accepted and provided with notice that they have been accepted pending a review of their criminal background. 2. Second, the lease or sale applicant must be given notice that a criminal background check will be conducted. 3. Third, the lease or sale applicant must be provided with a written copy of the city’s Fair Chance Housing notice which will be published by the City’s Commission on Civil and Human Rights.

Following a criminal background check, if the owner wishes to rescind the applicant’s preliminary approval based upon information discovered as part of the criminal background check, the landlord must: 1. Provide the applicant with any information or records about reviewable criminal history based on which the decision was made. 2. Provide any information about the individual’s criminal history, other than their reviewable criminal history, that was received even if that information was not considered in deciding. 3. Provide an individualized assessment of the individual’s reviewable criminal history and why the decision was made to not lease to the individual. This includes: a. How the individual’s reviewable criminal history is relevant to a legitimate business interest of the property owner. b. How any information submitted in support of such an individual’s tenancy was taken into account. 4. Provide notice that the individual may, no later than five business days following the receipt of the information, submit information that identifies errors in the criminal history provided, and any supplemental or mitigating information in support of their application.

Finally, the Act immunizes a landlord from civil suit based upon a claim that the landlord should not have leased or sold the housing accommodation to the applicant based upon that individual’s criminal background or based upon the landlords decision not to conduct a criminal background check.

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