The Cook County Board of Commissioners amended the Cook County Human Rights Ordinance on April 25, 2019, to prohibit landlords from asking about current or prospective tenants’ arrest records and conviction histories. This Ordinance applies to all property owners and landlords in Cook County, Illinois, and is commonly referred to as the “Just Housing Ordinance.” The Ordinance takes effect on October 25, 2019. Between now and that date, the Cook County Commission on Human Rights will create rules to enforce the Ordinance.
Why does this matter? The Ordinance places additional onerous burdens on landlords in Cook County who want to ensure the safety and security of their property and other tenants. The Ordinance does this by (1) preventing landlords from asking pertinent, relevant lease application questions about a prospective tenant’s criminal history; (2) adding unnecessary burdens on landlords who do not want to rent their property to a convicted criminal; and (3) making the landlord liable for potentially significant fines, costs, punitive damages, and attorney’s fees if the landlord simply asks commonsense questions about a prospective tenant’s criminal history.
For example, under the new Ordinance, landlords cannot ask about a prospective tenant’s arrest history, participation in a deferred prosecution program, or juvenile record under any circumstances. In Cook County, where so few arrests end in actual conviction, the inability to ask questions about an applicant’s arrest history will significantly hinder a landlord’s ability to ensure the safety and security of their property and other tenants.
However, landlords can inquire about a prospective tenant’s conviction history, but only after jumping through several hoops that are guaranteed to trip up even sophisticated landlords.
For example, a landlord can ask about a tenant’s conviction history, but only after the landlord has determined that the prospective tenant is otherwise qualified for admission to the property.
Thereafter, a landlord can rely on a criminal conviction to deny a lease to the prospective tenant only if doing so is “necessary to protect against a demonstrable risk to personal safety and/or property of others affected by the transaction.”
However, before a landlord can make the above “demonstrable risk” determination and deny a lease to the prospective tenant, the landlord must give the prospective tenant “sufficient notice” and an “opportunity” to dispute the accuracy and relevance of the conviction.
To comply with this aforementioned notice and opportunity requirement, the landlord must (1) give the prospective tenant a copy of the landlord’s tenant selection criteria, a copy of the criminal background check relied upon, and an opportunity to dispute the relevance of the conviction; and (2) notify the prospective tenant in writing of the landlord’s reasons why reliance on the conviction is “necessary to protect against a demonstrable risk to personal safety and/or property of others affected by the transaction.”
In other words, if a landlord discovers that the prospective tenant is a convicted murderer, rapist, drug dealer, arsonist, or other violent felon, the landlord must perform an unnecessarily detailed and exacting analysis, give the convicted person certain notices and information so he or she can contest the landlord’s decision, and then hope the Cook County Commission on Human Rights doesn’t second guess the landlord’s business decision when the convicted person or their attorney sues the landlord for money damages.
If a landlord errs on the side of caution to protect the safety and security of its property and other tenants, or if a landlord makes a technical mistake in denying a tenancy to a convicted criminal, or the Cook County Commission on Human Rights decides after the fact that the landlord’s discretion and judgment in denying occupancy were incorrect, the landlord can be subject to fines, fees, punitive damages, and monetary claims from prospective tenants and their lawyers.
Bottom line: Landlords should talk to an attorney as soon as possible to ensure their full compliance with the Ordinance on its effective date of October 25, 2019.
*Nothing herein constitutes legal advice or creates an attorney-client relationship. Nor is anything herein intended to identify all requirements under the referenced ordinance or discuss how the ordinance may apply in a given situation under certain facts. Consult an attorney before taking any action related to the referenced ordinance, as the ordinance may change or be interpreted differently on a date subsequent to the date of this post.