TRENTON – Acting Attorney General Andrew J. Bruck announced today that the Division on Civil Rights (DCR) has adopted new rules that expand opportunities for people with criminal records to find safe, affordable housing.
The new rules codify the Fair Chance in Housing Act, which took effect on January 1, 2022.
Due to racial disparities in the criminal justice system, practices that restrict housing opportunities for people with criminal histories have disproportionately affected people of color, especially Black people. By signing the Fair Chance in Housing Act into law last year, Governor Phil Murphy furthered his Administration’s commitment to taking action to dismantle systemic racial disparities that have been allowed to exist for too long in New Jersey, while reducing housing instability that can contribute to recidivism.
“This Administration is committed to leveling an uneven playing field when it comes to access to housing in New Jersey, and we are delivering on our promise to make our State a fairer place to live,” said Governor Phil Murphy. “On Juneteenth, I signed the Fair Chance in Housing Act, which seeks to eliminate unnecessary barriers to housing for individuals who have been court-involved or incarcerated. Safe and secure housing is a fundamental right, and I thank the Division on Civil Rights for taking action to further ensure access to housing for all.”
“The Murphy Administration is taking action to ensure that everyone in New Jersey has a fair chance to find safe and affordable housing,” said Acting Attorney General Bruck. “For too long, it has been too hard for people with a criminal record to find a place to live, and that burden has disproportionately affected communities of color. With the passage of the Fair Chance in Housing Act and today’s rules from the Division on Civil Rights, New Jersey is making meaningful strides toward genuine housing equity.”
“The Fair Chance in Housing Act is a groundbreaking civil rights law,” said Rosemary DiSavino, Deputy Director of DCR. “It lessens the collateral impact of the criminal justice system, which falls disproportionately on people of color. It also ensures that all New Jerseyans have access to a cornerstone of public participation — stable housing. No longer can a potential tenant be turned away from all housing opportunities solely because they once came into contact with the criminal justice system.”
With limited exceptions, the Fair Chance in Housing Act and DCR’s new rules bar housing providers who have not yet made a conditional offer from requiring applicants to fill out any type of form that includes questions about their criminal background.
Generally, only after otherwise approving an applicant and making a conditional offer is a housing provider permitted to ask about an applicant’s criminal history or conduct a criminal background check.
Even then, additional requirements need to be satisfied before the housing provider may reject an applicant based on the applicant’s criminal history. And in most cases, housing providers are not permitted to deny housing to someone simply because they have a criminal record.
Before the Fair Chance in Housing Act, 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.
Under the Act and DCR’s new rules, a housing provider who has issued a conditional offer to a housing applicant is only permitted to rescind that offer based on the applicant’s criminal history in certain circumstances. Specifically, the housing provider is 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.
If that individualized assessment leads the housing provider to rescind the conditional offer, the housing provider must provide written notice to the applicant explaining the specific reason(s) for the decision and must give the applicant a chance to dispute the criminal history at issue by showing it contains errors, or by offering evidence of rehabilitation or other mitigating factors.
In addition, with limited exceptions, housing providers are not permitted 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 screening and advertising requirements 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 new rules also require that before accepting an application fee, housing providers disclose in writing any eligibility criterion that includes consideration of an applicant’s criminal history.
The rules also set forth procedures for enforcement of the Fair Chance in Housing Act by DCR. Under the rules, any individual who believes a housing provider has violated the law can submit a signed complaint with DCR within 180 days of the alleged violation. If DCR conducts an investigation that confirms a violation, the Division can impose penalties and other remedies.
DCR’s rules are effective immediately. Their adoption follows a 60-day period of public comment on the rules proposed in September 2021.
DCR’s notice of adoption for the new rules was published in today’s New Jersey Register. For more information on the Fair Chance in Housing Act and how to file a complaint with DCR, please visit https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/fcha/.
A video explaining the Fair Chance in Housing Act is available here.
DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like schools, businesses, hospitals, etc.) by enforcing the New Jersey Law Against Discrimination (LAD), the New Jersey Family Leave Act, and now the Fair Chance in Housing Act (FCHA).