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Criminal Background Screening in Landlord-Tenant Context: A Potential Minefield

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It is a common practice for landlords to check the criminal background of potential tenants before approving or denying an application. Most landlords, relying on the traditional viewpoint holding that criminal history may reveal the character of a person and indicate an inclination toward future criminal acts, check a potential tenant’s criminal background to minimize the risk of a future tenant creating health and safety risks or damaging the leased property. Despite the commonness of the practice, landlords may not realize that they are potentially exposing themselves to liability under the Fair Housing Act and related laws by basing decisions on applicants’ criminal background.

The data the Department of Housing and Urban Development (“HUD”) has reviewed shows that Black and Brown persons are arrested, charged, convicted, and incarcerated at a disproportionate rate compared to other racial groups in the United States.1 There are a multitude of reasons for this disparity, including “The New Jim Crow”2 and discriminatory policing. Regardless of the cause, those statistics indicate Black and Brown persons are more likely to have a criminal background than white persons. As a result, since Black and Brown persons have more criminal records than white persons, using criminal background to exclude people from housing, jobs, or anything will result in more Black and Brown persons being excluded than those from other racial groups.

That is a potential problem under the Fair Housing Act, which prohibits discrimination in the rental context on the basis of seven protected classes, including race. Discrimination under the Fair Housing Act can take several different forms. One form of discrimination is based on the disparate impact theory, which covers situations where persons belonging to a protected class are disproportionately impacted by a housing policy or practice. When there is no legitimate reason supporting the policy or practice that creates the disproportionate impact, the Fair Housing Act will deem the policy or practice discriminatory.

Since excluding potential tenants on the basis of criminal activity will affect more Black and Brown persons than other racial groups, it has a disproportionate impact on Black and Brown persons. Accordingly, landlords must have a legitimate reason to support the exclusion. Otherwise, the landlord may face liability under the Fair Housing Act.

HUD has been heavily focused on how housing providers use criminal background in housing decisions for many years. HUD recently issued new guidance on this issue, titled GUIDANCE ON APPLICATION OF THE FAIR HOUSING ACT TO THE SCREENING OF APPLICANTS FOR RENTAL HOUSING on April 29, 2024. In that guidance, HUD reiterates that overly broad criminal background screenings that have unjustified disparate impact violates the Fair Housing Act. In light of this guidance, it is important for housing providers to give some consideration to how they are screening potential tenants.

To comply with the Fair Housing Act, landlords who use criminal background screening should consider developing a written policy and procedure governing the use of criminal history in rental decisions. Recent HUD guidance and proposed rules indicate HUD believes an individual assessment of applicants’ criminal background is required in all cases. Accordingly, a landlord’s screening policy should define and explain how the landlord will decide each case. At a minimum, the policy should clearly define and state the categories of convictions that will affect a rental decision. For instance, does the landlord only want to exclude people for violent crimes? What about drug crimes? The policy must also clearly state how the decision to rent to someone will be affected. For instance, will there be an automatic denial for some crimes and discretionary denial for other? Furthermore, the policy should establish timeframes for how long a conviction will affect decisions to rent to a person. For instance, a landlord might decide to have a longer period of exclusion for murder than for a simple possession of marijuana charge. Most importantly, each exclusion, whether actual or potential, must be justified by a credible threat to health and safety. Arbitrary and overly broad exclusions are particularly problematic under the Fair Housing Act.

Now more so than ever it is important for landlords to put some thought into how and why they are making rental decisions based on criminal background. The experienced attorneys at Blanco Tackabery stand ready to provide counsel for making those difficult decisions or designing a policy to assist in making them.

1 See HUD, GUIDANCE ON APPLICATION OF THE FAIR HOUSING ACT TO THE SCREENING OF APPLICANTS FOR RENTAL HOUSING, pg. 21 (April 29, 2024), Guidance on Application of the Fair Housing Act to the Screening of Applicants for Rental Housing (hud.gov); see also HUD, GUIDANCE ON APPLICATION OF FAIR HOUSING ACT STANDARDS TO USE OF CRIMINAL RECORDS BY PROVIDERS OF HOUSING AND REAL ESTATE-RELATED TRANSACTIONS (April 4, 2016), Office of the General Counsel (hud.gov).

2 Michelle Alexander popularized the term “The New Jim Crow” with her 2010 non-fiction book with that title. As a concept, The New Jim Crow refers to the theory that the United States’ criminal justice system is a technology used to exert racial social control and which has an effect very much like the original Jim Crow laws of racial segregation.


Henry Hilston employs his experience in state and federal litigation as an asset in his representation of affordable and conventional multifamily property owners and managers. In that practice, he advises property management companies on a wide range of issues, including evictions and other landlord-tenant disputes, VAWA, the Fair Housing Act, and compliance issues under federal and state affordable housing programs, such as the Low-Income Housing Tax Credit (LIHTC) program and HUD and USDA-Rural Development rental subsidy programs. He also assists those clients with the preparation, review, and revision of management documents, including tenant selection plans, management agreements, and leases.

 

 

Cartways: A Rarely Utilized Route to Access Land

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An easement is the right to make use of land owned by another person. For example, an easement could give a person the right to maintain an unimpeded scenic view from his property by restricting a neighboring landowner’s right to make use of her property in such a way that would impair her neighbor’s view. In this example, the first property owner’s right in the land of his neighbor is, essentially, a “negative right” that operates as a restraint on the second property owner’s right to make free use of her own property, rather than an “affirmative right” for the first property owner to make some specific use of the second property owner’s property himself.

However, when most people think of easements, they probably think first of access easements, which typically exist to provide a landowner with a means of access to his property from a public road over his neighbor’s land. There are a number of ways that such easements might exist. They could be expressly granted or reserved pursuant to a recorded instrument, such as a deed, or they might arise by implication or operation of law, where, for example, title to a single tract of land is subdivided into two tracts with the severance leaving one of the subdivisions without access, in which event a so-called “easement by necessity” might arise in favor of the owner of the landlocked tract.

One way that an easement might arise, which has existed under North Carolina law for many years but is not frequently used, is through a statutory cartway proceeding. These proceedings are governed by Article 4 of Chapter 136 of the North Carolina General Statutes, which provides in pertinent part that, if a person is engaged or preparing to engage in certain activity, including cultivation for agricultural purposes, timbering, quarrying for minerals, or the operation of an industrial or manufacturing plant, but the property on which such activity is to be conducted lacks access from a public road or other adequate legal access, other than from a navigable waterway, then he can institute a special proceeding before the Clerk of Superior Court to establish his entitlement to a statutory cartway over the land of a neighboring property owner.

Upon filing such a proceeding, all the landlocked person needs to do is demonstrate to the Clerk that it is necessary, reasonable, and just that he be granted the requested cartway. Once the landlocked property owner establishes his entitlement to the cartway, the Clerk then “appoint[s] a jury of view of three disinterested freeholders to view the premises and lay off” the course of the cartway “and assess the damages the owner or owners of the land crossed may sustain thereby.” N.C. Gen. Stat. § 136-69(a). The three-person “jury of view” appointed by the Clerk must then make a written report of its findings and recommendations to the Clerk. Any party to the special proceeding may then file exceptions to the jury’s report. Any such exceptions are heard and determined in the first instance by the Clerk, who “may affirm or modify said report, or set the same aside and order a new jury of view.” Id. Any party who is aggrieved by the Clerk’s final order or judgment “may appeal to the superior court for a jury trial de novo on all issues including the right to relief, the location of [the] cartway, . . . and the assessment of damages.” N.C. Gen. Stat. § 136-68. Once the report is approved and finalized, and any appellate rights are exhausted, the party who has been granted a cartway must pay into the Clerk’s office the amount of damages assessed in order to acquire the legal right to install and utilize the cartway that he has been awarded.

The statutory process for acquiring a cartway has existed since at least the 19th century, as a modern reader might surmise from the use of the archaic terminology, including for example, the requirement for the three jurors on the “jury of view” to be “disinterested freeholders.” While the applicable statutory regime has undergone relatively little legislative updating since its original enactment, there have been occasional calls for modernization, including calls for changes that would make cartways more readily obtainable. As development continues to increase across North Carolina, along with concomitant opportunities for development to be stymied by lack of legal access to otherwise developable properties, perhaps calls for the modernization of this little utilized means for acquiring access may renew or grow more sustained.


Chad Archer brings extensive expertise in state and federal litigation and was recently named to Business North Carolina’s Legal Elite Honorees 2024 as well as the 2024 edition of The Best Lawyers: Ones to Watch® in America. In his civil litigation practice, he advises clients on a wide range of issues, including trusts and estates, appeals, contract disputes, commercial and corporate disputes, complex business litigation and real property disputes.

 

 

Blanco Tackabery Attorneys Named to the The Best Lawyers in America®

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Blanco Tackabery is proud to announce that four of our attorneys have been named to the 2025 edition of the Best Lawyers in America©, one attorney has been awarded Best Lawyers® 2025 “Lawyer of the Year”, and one attorney named to the Best Lawyers: Ones to Watch® in America.

 

For the 2025 edition of The Best Lawyers in America®, more than 23 million votes were analyzed, which resulted in more than 80,000 leading lawyers included in the milestone 31st edition. The following attorneys were chosen by their peers in their respective practice areas to receive the Best Lawyers in America© recognition:

Ashley S. Rusher

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

Peter J. Juran

Commercial Litigation

Amy Lanning

Real Estate Law

Caroline C. Munroe

Trusts and Estates

 

“Lawyer of the Year” honors are awarded annually to only one lawyer per practice area in each region with extremely high overall feedback from their peers, making it an exceptional distinction. The following attorney was recognized as Best Lawyers® 2025 Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law “Lawyer of the Year” in the Triad.

Ashley S. Rusher

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

 

The Best Lawyers: Ones to Watch® in America is awarded to attorneys who are earlier in their careers for outstanding professional excellence in their respective practice area. For the 2025 edition of Best Lawyers: Ones to Watch® in America, more than 4 million votes were analyzed, which resulted in more than 27,000 lawyers honored in the new edition. The following attorney was chosen by peers in their respective practice areas to receive Best Lawyers: Ones to Watch® in America recognition:

Chad Archer

Appellate Practice

Commercial Litigation

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers recognitions are compiled based on an exhaustive Purely Peer Review® evaluation. More than 184,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers have received more than 25.8 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world.

 

Blanco Tackabery Sponsors 2024 PACU Foundation’s Flying Colors Charity Fun Run

Blanco Tackabery is proud to sponsor PACU Foundation’s annual Flying Colors Charity Fun Run. This fun run/walk of 5k, and 1.5-mile options will be held at Forsyth Country Day School on Saturday, June 22nd.

The PACU Foundation advances charitable giving to support access to financial literacy, education and training, and disaster and emergency assistance for residents overcoming financial hardship throughout the Triad and Charlotte communities.

 

Flying Colors Charity Fun Run

June 22, 2024

Forsyth Country Day School

 

For event details, visit: https://www.adventuresignup.com/Race/NC/Lewisville/FlyingColorsCharityFunRun

New Attorney Joins Firm’s Commercial Real Estate and Renewable Energy Financing and Development Practice Groups

Blanco Tackabery is pleased to announce that attorney Sydney Santos has joined the firm.

Sydney will concentrate her practice on commercial real estate and renewable energy practice groups. Sydney graduated magna cum laude from Elon University School of Law and passed the North Carolina Bar Exam in 2024. She graduated summa cum laude with her B.S. degree at The University of North Carolina at Greensboro.

To learn more about Sydney, visit: https://www.blancolaw.com/attorneys/sydney-s-santos/

Blanco Tackabery Sponsors Bikemore 2024

Blanco Tackabery is a proud sponsor of Bikemore, a family-friendly bicycle festival at Moore Elementary School this Saturday, June 1, from 10am-1pm. This year’s event will offer bike safety training for kids, a bike rodeo class put on by the police department, along with local vendors and more.

Bikemore is free and open to the community.

 

Bikemore

June 1, 2024

Moore Elementary School

For event details, visit: https://ardmore.ws/event-new/bikemore/

Blanco Tackabery Sponsors Davie County Little League

We are pleased to announce our sponsorship for the 2024 season of Davie County Little League. Davie American Little League continues to champion the values of youth baseball and softball, instilling life lessons that shape resilient communities and individuals. With Baseball, Softball, and Challenger divisions, Davie Little League ensures that every child aged 4 to 16 can engage in a fulfilling experience.

To learn more about Davie County Little League, visit: https://www.daviell.com/

Piedmont Opera Hosts 33rd Annual Magnolia Ball

We’re looking forward to the 33rd annual Magnolia Ball hosted by the Piedmont Opera this Friday, May 17. This year’s ball will celebrate the elegance and whirlwind expeditions inspired by the global travels of Phileas Fogg, at the Millennium Center in Winston-Salem.

The Magnolia Ball is Piedmont Opera’s largest fundraiser. To support fine arts in our community by purchasing a ticket to this event or making a donation, visit: https://ci.ovationtix.com/36795/production/1189842?performanceId=11417760

 

Piedmont Opera Magnolia Ball

May 17, 2024

Millennium Center

Blanco Tackabery Sponsors 2024 SummerLark Event

Blanco Tackabery is proud to sponsor this year’s SummerLark event, held by Atrium Health Wake Forest Baptist Philanthropy.

SummerLark is an annual charity concert supporting the Cancer Patient Support Program. This vital initiative offers personalized counseling, group support sessions, and essential financial aid to patients and their families. Contributions directly aid in ensuring that no one in our community battles cancer alone.

To purchase a ticket to attend the concert this Saturday, May 11, at Bailey Park or to make a donation, click here.

 

SummerLark

Bailey Park

Winston-Salem, NC

Saturday, May 11

 

Blanco Tackabery Sponsors HandsOn Northwest North Carolina Forsyth County Governor’s Volunteer Service Awards Breakfast

Blanco Tackabery was proud to sponsor the HandsOn Northwest North Carolina Forsyth County Governor’s Volunteer Service Awards held earlier this week at Novant Health Forsyth Medical Center’s Conference Center. Congratulations to the year’s award recipients, recognized and honored volunteers who have made significant contributions to Forsyth County through volunteer service.

HandsOn Northwest North Carolina’s mission is mobilizing the people and organizations that inspire community change in Forsyth, Davidson, Davie, Stokes, Surry and Yadkin counties.

To learn more about HandsOn and to donate, visit: https://www.handsonnwnc.org/about-us-2/

When “Court” Comes to Town Hall: The Little-Known Rules of Quasi-Judicial Proceedings

Sometimes a property owner or developer will need special permission from a local board to undertake a project in compliance with “land use” laws. In North Carolina, when that permission requires the board to apply subjective legal standards to the facts presented, a “quasi-judicial proceeding” is required. Many applicants in land-use requests – and even many boards, especially in small towns – are not familiar with the term “quasi-judicial,” much less its ramifications. But these types of proceedings create hazards for the unwary that can make or break a desired outcome.

Land-use decisions in North Carolina fall into one of a few categories. For example, whether a tract of land will be rezoned from one type of zoning to another is usually a “legislative” decision. In other words, it’s basically a political decision that a town council will make, based whether the council thinks it’s a good idea. Council members will decide the matter, for the most part, based on their own judgment and opinions that they receive from citizens. Another category of land-use decision is an “administrative” decision. For example, a town may have a rule that involves objective criteria – such as a maximum height for a building, or a minimum setback from the road. Typically, a town employee can decide whether the rule is satisfied, since there should be little debate about criteria that are readily measurable or confirmable. In between legislative decisions and administrative decisions are quasi-judicial proceedings, in which a board will hear evidence regarding the request and decide whether the evidence meets the subjective standards for approval. For example, a board may be authorized to grant a request only upon a finding that it does not “materially endanger public or health or safety” or “substantially injure the value of adjoining property.”

The type of board that will hear a quasi-judicial proceeding is often a Zoning Board of Adjustment, but may be the Town Council or Planning Board, depending on the town’s local “ordinances.” Often, the board may consist of volunteers with no legal expertise or significant training in planning and land development. In a quasi-judicial proceeding, the board will be required to take evidence in accordance with the law and then weigh the evidence to determine whether a request meets the standards in the ordinance. In short, the board plays a role very similar to a judge in court; thus, the term “quasi-judicial.”

Quasi-judicial proceedings are used for decisions such as: variances (where the applicant seeks an exception to a land-use rule); special use permits (where a certain type of “use” is allowed in a zoning district only with special permission); certificates of appropriateness (where a property can only be modified in a way that is consistent with the era of a historic neighborhood); and appeals of decisions by town staff. Quasi-judicial proceedings will involve a hearing that occurs after notice is provided to the applicant and other directly affected property owners. Both proponents and opponents of the request should come to the hearing well-prepared. Important considerations include:

· Standing: Whether you are a party with “standing” will determine the extent of what you can do at the hearing. If you’re not a property owner or resident in the vicinity of the property in controversy, you might not have standing.

· Standards: What are the applicable standards that must be met for the request to be approved? Don’t develop a strategy until you know the rules of the game (which will may involve researching the town ordinances).

· Experts: To prove (or disprove) the applicable standards, will you need an expert witness, or can a layperson provide an opinion? In particular, an expert may be needed on issues such as whether a project will decrease neighborhood property values or create an unsafe amount of additional traffic.

· Procedure: What are the details of how the hearing will be conducted? What opportunities are there to present evidence, conduct cross-examination, make objections, or argue in support of your position?

· Appeal: How and when must any appeal be undertaken?

Attending a quasi-judicial proceeding without being prepared for a “court-like” experience is a mistake. While the board may be generous with an unprepared applicant in a small unopposed matter, adequate preparation and knowledge of the quasi-judicial process are crucial in a matter that is hotly contested or has high financial stakes. Regardless of whether you support or oppose the request, obtaining counsel with experience in representing local governments and/or developers in land-use matters is a sound investment.


Elliot Fus has served as town attorney for several North Carolina municipalities and has represented private parties in land use matters. He is a member of the N.C. Association of Municipal Attorneys and leads the firm’s Litigation Practice Group.