Property owners in Cook County should be aware of significant changes to the county’s Human Rights and Fair Housing Ordinance which limits in many cases the time frame that they can review an applicant’s criminal history.

The Just Housing Amendment, which went into effect Jan. 31, 2020, sets up a two-part process under which property owners must first consider ability to pay, then they move to a second step where they consider criminal background.

On the Illinois REALTORS® Podcast, association Director of Local Advocacy Mike Scobey outlines the process, and shares guidance on how property owners can best make sure they are following the law.

He also shares resources that have been developed to help property owners better understand what is required.

Podcast: Just Housing Amendment in Cook County

Jon Broadbooks:

Welcome to the Illinois REALTORS® Podcast. I’m Jon Broadbooks with Illinois REALTORS®. Joining us today is Mike Scobey, director of local advocacy for Illinois REALTORS®. Mike has been with Illinois REALTORS® for more than two decades. In fact, I think he’s one of the first local government affairs directors the association ever had. How many years has it been, Mike?

Mike Scobey:

It’s been 30 years.

Jon Broadbooks:

30 years, so three decades of experience here, and he’s going to be updating us today on the recently passed and the now-enacted Just Housing Amendment in Cook County. He’s also going to update us on a lawsuit that Illinois REALTORS® is engaged in, which is working to protect and promote private property rights in the Chicago suburbs.

Mike, I think this is the second time you’ve been on the podcast and so welcome back and we’ll make sure we update your Frequent Flyer status. If you appear five times on this podcast, you get a free cup of coffee.

Mike Scobey:

Oh, that’s great. Thanks, Jon. Glad to be here.

Jon Broadbooks:

Mike, let’s talk about the Just Housing Amendment, because this will be in effect, well, it’s already in effect now, we’re into February. Our members really need to know about this. In a nutshell, what is the Just Housing Amendment?

Mike Scobey:

Well, Jon, the Just Housing Amendment was passed by the Cook County Board and it applies in all of Cook County. It was an amendment to Cook County’s Human Rights and Fair Housing Ordinance. That ordinance has been on the books since, I believe, the early ’90s, and over the years there have been various protections added to it and so this is the latest edition regarding the protection and it deals with a rental applicant’s criminal history. The genesis for this really comes from the whole criminal justice reform movement.

You may remember from a few years back that the Feds dealt with this issue, and the key focus in all of this is making sure that persons with a criminal history, to some extent, are not discriminated against. The Feds were concerned with making sure that denying somebody based on their criminal history wasn’t being used as a kind of smoke screen for racial discrimination. The Feds called this a disparate impact.

This Cook County ordinance goes a few steps further. It provides some new guidelines and new steps that housing providers have to do in order to deal with persons with a criminal history and deal with them differently, providing a certain level of protection under Fair Housing to those rental applicants.

Jon Broadbooks:

You mentioned there are several key things that a property owner will need to know. What are some of these?

Mike Scobey:

Well, one of the big changes has to do with how you actually do a criminal background check. With the screening, under the rules, the screening now has to be done in two steps, this is with all applicants, all rental applicants, before you can do a background check. It used to be with a background check that all of their information, their financial information and their criminal history information, it was all together.

Now these rules require that the steps be bifurcated, that you segregate out criminal history. The first step that you’re taking when screening rental applicants has to do with pre-qualifying the applicants based on their ability to pay. A housing provider, property manager, can review things like income, credit scores, their employment history. You can still continue to look at things like landlord references and basically their tenant history. You can look at that all in the first step.

Once you review all of those things and you find out that they’re qualified based on those usual financial factors, you can then go on to the second step. You can do a review of their criminal history. The new law, and this is a big change here, is that you can’t look at a person’s criminal convictions that are older than three years. This was something that there was considerable discussion on this point at the County Board on this particular provision, and it’s very important to note that you really cannot be inquiring about any criminal conviction in a person’s history that’s older than three years.

Jon Broadbooks:

Are there any exclusions or are there any ways you can say this person has a criminal background but I don’t have to rent to them?

Mike Scobey:

Yes. Any registrant under the Sex Offender Registration Act, that is a clear exclusion, so you can deny housing on that basis. Also, anybody with a residency restriction as a child sex offender, with that type of restriction, you can also deny them housing, and it does not matter when that conviction took place, whether it’s three years or longer than that. Those are clear exclusions that are in the ordinance.

Jon Broadbooks:

If a housing provider finds that somebody has a criminal history, and setting those two exclusions you just outlined aside, what is the responsibility of a property owner then?

Mike Scobey:

If a criminal conviction that is three years old or less is found in their criminal history, the housing provider has to do what’s called an individualized assessment, and with this, the whole point is trying to determine whether this person, this applicant, would be what is called a demonstrable risk. That term demonstrable risk, it’s actually in the ordinance, it’s in the rules.

What the housing provider or property manager has to do is look at the certain factors there and determine if they are going to be a demonstrable risk living on the property. They can look at things like the severity of the crime as well as any evidence or nature of rehabilitation. They can also look at things like references from an employer or maybe even talk to the past landlord about whether they would be a demonstrable risk, something in their past. Anything that would show that the person has reformed or made good in their life and they put their criminal history behind them, some sort of rehabilitation is something that would have to be reviewed.

Now if the housing provider does determine that this person would still be a demonstrable risk, they can deny them the housing. Then, the next step that’s in this whole process, once that individualized assessment is done, is the applicant has a new right under this ordinance and under the rules and it’s called an opportunity to dispute. With this, the applicant has a certain period of time to produce evidence to show that what was found in a criminal background report, as long as it’s within the three-year timeframe, is either not relevant or it’s inaccurate.

Quite often in some of these criminal background reports, there are inaccuracies, so this is an opportunity in this opportunity to dispute. They can say, “Hey, that’s just factually wrong and here’s the evidence to prove that otherwise it is factually incorrect.” This new opportunity to dispute is a new feature in the ordinance as it relates to fair housing.

Jon Broadbooks:

Property owners are often very sensitive about how much time they have to keep a unit vacant, and I mean after all, they are in business. I guess the question is how long does somebody who is a property owner have to keep a unit open as they work through the dispute process?

Mike Scobey:

Little bit of background. There was language originally put in the rules that said that the unit had to be held open during this dispute process, so it basically had to be held off of the market while the process was going on. This was something that we, the Illinois REALTORS®, lobbied strongly against and a majority of the commissioners on the County Board said, “Yeah, this is probably not good policy and kind of getting into that whole area of takings with that kind of provision,” so they did eventually remove that old provision. While the opportunity to dispute is going on, a housing provider, property manager, can be reviewing and potentially even provide housing to another prequalified applicant.

Jon Broadbooks:

We’ve been talking with Mike Scobey, and Mike has worked with the association’s legal team to come up with a members-only Q&A, and this has a lot of details. It probably answers a lot of the questions many of our listeners might have about this new set of rules. I should also mention here, Mike, I believe the County has come out with some guidance on this as well, which they put on their website.

Mike Scobey:

Yes, that’s right. They just recently put it out on their website. I think it’s well worth reviewing because I talked about the various procedures and steps and the timeframes. There’s quite a bit in the rules that property owners and property managers really need to familiarize themselves with these timeframes because they’re very important in the overall, with the new set of guidelines in regards to reviewing people with criminal history.

There are two other things that I just want to quickly mention. In this new law, every rental applicant must be given … This is at the time of application, so at the very front end, you have to provide to them your tenant selection criteria. This is basically how you evaluate tenants and you need to provide that to every rental applicant. Another thing that the applicants must be given is a brief notice of their rights under these new set of guidelines under Just Housing. These are new features that you really need to be aware of.

Jon Broadbooks:

I would guess that most, if not all, property owners have some sort of a process they go through to screen applicants, and many of them probably use a third party. How will their relationship with a third party change now that they’re having to take into account all of these new regulations?

Mike Scobey:

Yeah. Typically, property owners do use a credit agency or a credit bureau that actually does the screening service for them, so I think it’s important that they just check to make sure that the bifurcated or two-step process that I described earlier is part of their screening information that they provide back to the housing provider or to the REALTOR®.

Jon Broadbooks:

Mike, thanks so much for being with us.

Mike Scobey:

Thank you, Jon.

* NOTE: There are some recent ordinances enacted, but they still appear to be deficient in the areas of scope and due process.