Fair Chance in Housing Act
On Juneteenth 2021, Governor Murphy signed the Fair Chance in Housing Act (FCHA), which bars housing providers from asking about criminal history on housing applications in most instances. The FCHA is the first state law of its kind in the country and is intended to ensure people with past criminal histories have a fair shot at accessing safe and affordable housing.
Initial Application or Advertisement:
New Jersey’s FCHA limits a housing provider’s (see below) ability to consider a person’s criminal history in deciding whether to extend an offer or whether to rent a home after extending an offer. With some exceptions, the FCHA makes it unlawful for a housing provider to ask an applicant if they have a criminal history on their initial application materials, in an interview, or in any other way before making an offer. It is also unlawful for a housing provider to publish any advertisement prohibiting applicants with criminal histories from applying for a unit.
There are two exceptions that housing providers may ask about on initial application materials:
- Whether an applicant has ever been convicted of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing; or,
- Whether the applicant is subject to a lifetime registration requirement on a state sex offender registry.
Criminal History Information that can Never be Considered:
A housing provider can never, either before or after the issuance of an offer, ask about the following types of criminal records or rely upon the following types of criminal records in rejecting an applicant (whether the information is obtained from an applicant or from a third party vendor or other outside person/entity):
- arrests or charges that have not resulted in a criminal conviction;
- expunged convictions;
- convictions erased through executive pardon;
- vacated and otherwise legally nullified convictions;
- juvenile adjudications of delinquency; and
- records that have been sealed.
The law also prohibits housing providers from requiring drug or alcohol testing; from disseminating or distributing an applicant’s record in any way not authorized under the FCHA; and from retaliating against anyone for exercising their rights to file a complaint under the law.
If a housing provider chooses to evaluate criminal history, it may do so only after a conditional housing offer has been made. Before considering the applicant’s crimnial history, it must provide a Disclosure Statement informing the applicant that the eligibility criteria for the unit includes the applicant’s criminal history, and appraising the applicant of their right to demonstrate mitigating factors, i.e. inaccuracies in their criminal record or evidence of rehabilitation.
After a conditional offer, a housing provider can only consider the following types of criminal records (see below for further information on interpreting relevant criminal offenses)
- A conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, sexual assault, endangering the welfare of a child in violation of N.J.S.2C:24-4(b)(3);
- A conviction for any crime that requires lifetime state sex offender registration;
- Any conviction for a 1st degree indictable offense, or release from prison for that offense, within the past 6 years;
- Any conviction for a 2nd or 3rd degree indictable offense, or release from prison for that offense, within the past 4 years; and
- Any conviction for a 4th degree indictable offense, or release from prison for that offense, within the past 1 year.
If a housing provider finds such an offense(s) in an applicant’s record, the housing provider may withdraw the conditional offer only if withdrawal is necessary to fulfill a substantial, legitimate, and non-discriminatory interest. In so doing, the housing provider must perform an individualized assessment based on the following factors:
- Nature and severity of the offense(s);
- Applicant’s age at the time of the offense(s);
- How recently the offense(s) occurred;
- Any information the applicant provided in their favor since the offense(s);
- If the offense(s) happened again in the future, whether that would impact the safety of other tenants or property; and
- Whether the offense(s) happened on, or was connected to, property that the applicant rented or leased.
The housing provider must also provide a Notice of Withdrawal form indicating the specific reasons for the withdrawal, and notifying the applicant of their right to appeal the denial of their application. The applicant can then request a copy of all the information the housing provider relied upon in making the withdrawal within 30 days of receiving the Notice, and the housing provider must provide the information free of charge within 10 days after receipt of a timely request.
Appealing a Withdrawal:
The housing applicant may then use that information to appeal to the housing provider, claiming that the housing provider violated the FCHA, and provide additional information in support of a violation. A housing provider must consider and provide a determination based on that new information within 30 days.
Note: If a housing provider utilizes any vendor or outside person/entity to conduct a criminal record check on their behalf, the housing provider must take reasonable steps to ensure that the vendor or outside person/entity conducts the criminal record check consistent with the requirements of the FCHA. Specifically, if a housing provider receives a criminal history inquiry conducted by a vendor or outside person or entity that is conducted in violation of the FCHA in that it reveals a record that is not permitted to be considered under the FCHA, the housing provider must show that it did not rely on that information in making a determination about an applicant.
Filing a Complaint:
Anyone who believes their rights under the FCHA have been violated may file a complaint with DCR within 180 days of the incident. Click here to learn more about filing a complaint with DCR. You cannot be subjected to retaliation for filing a complaint or for attempting to exercise your rights under the FCHA.
Who are Housing Providers?
Housing providers subject to the FCHA include landlords, owners, lessors, sublessors, assignees, or their agents, or any other person receiving or entitled to receive rents or benefits for the use or occupancy of any rental dwelling unit. Under the FCHA, a rental dwelling unit means a home offered for rent by a housing provider for residential purposes, except for a dwelling unit in an owner-occupied premises of no more than four (4) dwelling units.
Guidance on Interpreting Criminal Offenses Under the FCHA
In determining whether to withdraw a conditional offer, a housing provider may only consider the specific indictable offenses outlined in the FCHA.
The New Jersey Criminal Code labels its most serious crimes as indictable offenses, and further classifies them by degree. Click here to view a spreadsheet outlining indictable offenses and describing degrees of such offenses.
P.L.2021, c.298, adopted in November 2021, clarifies New Jersey’s classification of criminal offenses committed in other states and under federal law (i.e. in other jurisdictions). The law explains, in relevant part, that a conviction in another jurisdiction is considered a conviction of a crime for the purposes of New Jersey law if the other jurisdiction authorized a sentence of imprisonment of more than one year. Click here to read the law and learn more.
Free Legal Service Providers in New Jersey:
Below is a list of some free legal service providers available to assist very low-income, low-income or moderate-income applicants or tenants throughout New Jersey:
- Legal Services of New Jersey: lsnj.org (1-888-576-5529)
- Legal Services of Northwest Jersey: lsnwj.org
- South Jersey Legal Services: lsnj.org/sjls/ (1-800-496-4570)
- Volunteer Lawyers for Justice New Jersey: vljnj.org/get-help (973-645-1955)
- Community Health Law Project: chlp.org (includes contact information for ten (10) regional offices) (973-274-1175) (for applicants/tenants with disabilities or chronic health conditions).
Contact: If you have questions related to the FCHA please contact FCHAinfo@njcivilrights.gov.