--- title: "Tenant screening and Fair Housing: what federal rules require in 2026" description: "HUD withdrew its 2016 criminal-records guidance and is proposing to delete its disparate-impact rule, but the statute, the screening regulations and the FCRA adverse-action notice all still apply. What that means for your written criteria." date: 2026-09-16 updated: 2026-09-16 author: "Proppely Research Desk" kind: GUIDE tags: ["tenant-screening", "fair-housing", "section-8", "policy", "multifamily"] reading_minutes: 8 word_count: 1676 canonical: "https://www.proppely.com/insights/tenant-screening-fair-housing-federal-rules-2026" html: "https://www.proppely.com/insights/tenant-screening-fair-housing-federal-rules-2026" feed: "https://proppely.com/insights/feed.xml" license: "Free to read and cite with a link to the canonical URL." sources: - title: "Memorandum: Fair Housing Guidance Memoranda and Documents" url: "https://www.hud.gov/sites/default/files/hudclips/documents/OGC-Memo-on-Fair-Housing-Guidance-9-25-2025.pdf" publisher: "U.S. Department of Housing and Urban Development, Office of General Counsel" published: "2025-09-24" - title: "Enforcement Guidance – Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act" url: "https://www.hud.gov/sites/default/files/hudclips/documents/AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf" publisher: "U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity" published: "2026-05-21" - title: "Housing Discrimination Under the Fair Housing Act" url: "https://www.hud.gov/helping-americans/fair-housing-act-overview" publisher: "U.S. Department of Housing and Urban Development" - title: "Housing Choice Voucher Program Guidebook: Fair Housing and Nondiscrimination Requirements" url: "https://www.hud.gov/sites/dfiles/PIH/documents/HCV_Guidebook-Chapter_Fair-Housing_April-2025.pdf" publisher: "U.S. Department of Housing and Urban Development, Office of Public and Indian Housing" published: "2025-03-31" - title: "HUD's Implementation of the Fair Housing Act's Disparate Impact Standard; Amendments to HUD's Title VI Regulations (supplemental proposed rule, Docket FR-6540-P-02)" url: "https://www.federalregister.gov/documents/2026/08/10/2026-16228/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard-amendments-to-huds-title-vi" publisher: "Federal Register" published: "2026-08-09" - title: "HUD's Implementation of the Fair Housing Act's Disparate Impact Standard (proposed rule, Docket FR-6540-P-01)" url: "https://www.federalregister.gov/documents/2026/01/14/2026-00590/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard" publisher: "Federal Register" published: "2026-01-13" - title: "Using Consumer Reports: What Landlords Need to Know" url: "https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-landlords-need-know" publisher: "Federal Trade Commission" published: "2023-06-30" - title: "24 CFR 100.60 — Unlawful refusal to sell or rent or to negotiate for the sale or rental" url: "https://www.ecfr.gov/current/title-24/section-100.60" publisher: "Electronic Code of Federal Regulations" - title: "24 CFR 100.65 — Discrimination in terms, conditions and privileges and in services and facilities" url: "https://www.ecfr.gov/current/title-24/section-100.65" publisher: "Electronic Code of Federal Regulations" - title: "24 CFR 100.500 — Discriminatory effect prohibited" url: "https://www.ecfr.gov/current/title-24/section-100.500" publisher: "Electronic Code of Federal Regulations" published: "2023-03-30" - title: "24 CFR 100.10 — Exemptions" url: "https://www.ecfr.gov/current/title-24/section-100.10" publisher: "Electronic Code of Federal Regulations" - title: "24 CFR 100.202 — General prohibitions against discrimination because of handicap" url: "https://www.ecfr.gov/current/title-24/section-100.202" publisher: "Electronic Code of Federal Regulations" - title: "24 CFR 100.204 — Reasonable accommodations" url: "https://www.ecfr.gov/current/title-24/section-100.204" publisher: "Electronic Code of Federal Regulations" - title: "16 CFR 682.3 — Proper disposal of consumer information" url: "https://www.ecfr.gov/current/title-16/section-682.3" publisher: "Electronic Code of Federal Regulations" - title: "42 U.S.C. 3604 — Discrimination in the sale or rental of housing and other prohibited practices" url: "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3604&num=0&edition=prelim" publisher: "Office of the Law Revision Counsel, U.S. House of Representatives" - title: "42 U.S.C. 3610 — Administrative enforcement; preliminary matters" url: "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3610&num=0&edition=prelim" publisher: "Office of the Law Revision Counsel, U.S. House of Representatives" - title: "42 U.S.C. 3613 — Enforcement by private persons" url: "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3613&num=0&edition=prelim" publisher: "Office of the Law Revision Counsel, U.S. House of Representatives" - title: "15 U.S.C. 1681c — Requirements relating to information contained in consumer reports" url: "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681c&num=0&edition=prelim" publisher: "Office of the Law Revision Counsel, U.S. House of Representatives" - title: "15 U.S.C. 1681m — Requirements on users of consumer reports" url: "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681m&num=0&edition=prelim" publisher: "Office of the Law Revision Counsel, U.S. House of Representatives" --- # Tenant screening and Fair Housing: what federal rules require in 2026 > HUD withdrew its 2016 criminal-records guidance and is proposing to delete its disparate-impact rule, but the statute, the screening regulations and the FCRA adverse-action notice all still apply. What that means for your written criteria. ## Key takeaways - HUD's General Counsel withdrew the 2016 criminal-records guidance and the 2024 source-of-income guidance on September 25, 2025, but the Fair Housing Act and HUD's screening rules at 24 CFR 100.60 and 100.65 are unchanged. - HUD has proposed removing its disparate-impact regulation at 24 CFR 100.500, with the reopened comment period closing October 9, 2026 — the rule remains in force until a final rule says otherwise. - Under the FCRA, arrest records and other adverse items more than seven years old generally cannot appear in a tenant screening report, while convictions are not subject to that cutoff — so audit your vendor's look-back settings. - Any adverse action influenced by a screening report triggers an FCRA notice, and adverse action includes requiring a co-signer, a larger deposit, or higher rent, not just a denial. - HUD rescinded its assistance-animal notices and will now find reasonable cause only for individually trained animals, but private plaintiffs can still sue within two years and state and local law may require more. Screening is where most fair housing exposure starts, and it is also the part of leasing you can make boring and defensible in an afternoon. Two federal things moved in the past year: HUD's General Counsel withdrew a stack of fair housing guidance on [September 25, 2025](https://www.hud.gov/sites/default/files/hudclips/documents/OGC-Memo-on-Fair-Housing-Guidance-9-25-2025.pdf), including the 2016 criminal-records memo, and HUD has proposed removing its disparate-impact regulation outright, with comments on the [supplemental proposal](https://www.federalregister.gov/documents/2026/08/10/2026-16228/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard-amendments-to-huds-title-vi) open until October 9, 2026. The statute itself did not change. What follows is general information, not legal advice — confirm your criteria with local counsel before you use them. ## Start with written criteria, applied in one order, to everyone The Fair Housing Act covers race, color, national origin, religion, sex, familial status and disability, per [HUD](https://www.hud.gov/helping-americans/fair-housing-act-overview) and [42 U.S.C. 3604](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3604&num=0&edition=prelim). HUD's regulation is unusually specific about screening. [24 CFR 100.60(b)(4)](https://www.ecfr.gov/current/title-24/section-100.60) makes it unlawful to use "different qualification criteria or applications" — it names income standards, application requirements, application fees, credit analysis and approval procedures — on a protected basis. [24 CFR 100.65](https://www.ecfr.gov/current/title-24/section-100.65) does the same for deposits and lease terms. Both are written as "because of" a protected characteristic, so the question is why two applicants were treated differently — which is exactly what an undocumented, case-by-case process makes hard to answer. Separately, [24 CFR 100.500](https://www.ecfr.gov/current/title-24/section-100.500) still allows liability for a practice's discriminatory effect even without discriminatory intent, under a three-step burden test: the complainant shows the effect, the housing provider shows the practice is necessary to a substantial, legitimate, nondiscriminatory interest, and the complainant may still win by showing a less discriminatory alternative. HUD proposed to remove that regulation on [January 14, 2026](https://www.federalregister.gov/documents/2026/01/14/2026-00590/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard) and has not finalized it. Until it does, the rule is the rule. The operational version fits on one page: | Write down | Not this | |---|---| | Income threshold, and whether it applies to the full rent or the tenant's portion | "Enough income" | | Credit score floor, plus which derogatories matter | "Good credit" | | Rental-history rule with a stated look-back | "No evictions" | | Occupancy standard, by unit, stated per bedroom | Case-by-case judgment | | Documents accepted as proof of income | Whatever the agent asks for | | The order criteria are evaluated in | Whatever surfaces first | ## Criminal records: the guidance is gone, the exposure is not HUD's April 4, 2016 guidance on criminal records is among the documents the General Counsel said "no longer express the official legal opinion" of that office, effective [September 25, 2025](https://www.federalregister.gov/documents/2026/07/17/2026-14432/notice-of-the-withdrawal-of-ogc-guidance-documents). That memo withdrew HUD's framework. It did not repeal the statute, and it did not touch 24 CFR 100.500. Three things still constrain you: - The FTC's current guidance for landlords states plainly that a blanket policy of refusing to rent to anyone with a criminal record may violate the Fair Housing Act ([FTC](https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-landlords-need-know)). - The FCRA limits what can appear in the report at all. Under [15 U.S.C. 1681c(a)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681c&num=0&edition=prelim), arrest records and other adverse items more than seven years old are generally excluded, bankruptcies more than ten years old are excluded, and records of convictions are not subject to that seven-year cutoff. If your vendor is surfacing a decade-old arrest, that is a report problem before it is a screening problem. - The drug carve-out in HUD's exemption regulation is narrow. [24 CFR 100.10(a)(4)](https://www.ecfr.gov/current/title-24/section-100.10) permits acting on a conviction for illegal manufacture or distribution of a controlled substance, and [24 CFR 100.202(c)](https://www.ecfr.gov/current/title-24/section-100.202) permits asking every applicant about current illegal drug use and about that specific conviction type. It does not bless a general criminal-history ban. A defensible policy in this posture: category-specific look-back windows tied to a stated tenancy interest, no automatic denial on an arrest alone, and a documented opportunity for the applicant to submit context before you decide. Many states and cities go further — capping look-back periods, requiring an individualized assessment, or requiring a conditional offer before any criminal check. Those are local rules, not national law, and they are the first thing to check with counsel. ## Source of income and the voucher math Source of income is not in the federal protected-class list at [42 U.S.C. 3604](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3604&num=0&edition=prelim), and HUD's General Counsel withdrew the November 4, 2024 source-of-income guidance in the same [September 2025 memo](https://www.hud.gov/sites/default/files/hudclips/documents/OGC-Memo-on-Fair-Housing-Guidance-9-25-2025.pdf). HUD's own Housing Choice Voucher guidebook chapter, dated [April 2025](https://www.hud.gov/sites/dfiles/PIH/documents/HCV_Guidebook-Chapter_Fair-Housing_April-2025.pdf), notes that public housing agencies may be subject to state or local statutes prohibiting discrimination on other bases, such as source of income, and that the chapter addresses only federal requirements. That is the pattern: federal silence, patchwork state and local coverage. Where coverage exists, the income multiple is usually where the argument lands. A rule requiring income of three times rent behaves very differently applied to the full contract rent than applied to the tenant's share after a voucher. No federal rule sets the multiple or tells you which number to use. Pick one, write it into the criteria, and apply it the same way to every applicant — then have counsel confirm it against your state and city rules, which vary. ## Disability: accommodations survive, animal guidance is being rewritten [24 CFR 100.204](https://www.ecfr.gov/current/title-24/section-100.204) makes it unlawful to refuse a reasonable accommodation in rules or policies where needed to give a person with a disability equal opportunity to use and enjoy a dwelling; the regulation's own example is waiving a no-pets policy for a trained service dog. [24 CFR 100.202(c)](https://www.ecfr.gov/current/title-24/section-100.202) bars asking whether an applicant has a disability or how severe it is, while permitting questions — asked of everyone — about ability to meet the requirements of tenancy. Animals are in flux. FHEO's enforcement guidance dated [May 22, 2026](https://www.hud.gov/sites/default/files/hudclips/documents/AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf) confirms that the 2020 and 2013 assistance-animal notices were rescinded on September 17, 2025, and states that FHEO will find reasonable cause only where the animal is individually trained to do work or perform tasks directly related to the person's disability. HUD says it intends to run notice-and-comment rulemaking on the subject. Read that memo for what it is: a change in how HUD spends its enforcement budget. The memo itself notes it does not address Section 504 or ADA complaints, and that a complainant may still file a private civil action within two years under [42 U.S.C. 3613(a)(1)(A)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3613&num=0&edition=prelim). State and local disability law may also require more. Denying a request because HUD has deprioritized the category is not the same as denying it lawfully — this is a counsel question, per request. ## The FCRA notice a denial triggers If a tenant screening report played any part in the decision, the FCRA applies. Per [FTC guidance](https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-landlords-need-know) and [15 U.S.C. 1681m(a)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681m&num=0&edition=prelim): - Adverse action is broader than denial. It includes requiring a co-signer, requiring a larger deposit than another applicant would pay, and charging higher rent. - The notice is required even if the report was a small part of the decision. - It must give the consumer reporting agency's name, address and phone number; a statement that the agency did not make the decision and cannot explain it; and notice of the right to dispute the information and to get a free copy of the report from the agency within 60 days. - Oral notice is permitted; the FTC says written notice is best practice, and it is the only version you can later prove. - If a credit score influenced the decision, you owe an additional written or electronic disclosure: the score, its source, the date, the score range, and the key factors that hurt the score, in order of importance. Before the report, the FTC also expects you to have a permissible purpose and to certify to the screening company that you will use the report only for housing purposes. ## Records: what to keep, and how to destroy it An aggrieved person has one year to file a complaint with HUD under [42 U.S.C. 3610(a)(1)(A)(i)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3610&num=0&edition=prelim), and two years to bring a civil action under [42 U.S.C. 3613(a)(1)(A)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3613&num=0&edition=prelim). Those two windows are the floor for how long the application file, the criteria in force on that date, the decision log and a copy of the adverse action notice are worth keeping. State retention requirements differ, so set the period with counsel rather than guessing. Disposal is its own federal rule. [16 CFR 682.3](https://www.ecfr.gov/current/title-16/section-682.3) requires reasonable measures against unauthorized access when you dispose of consumer information, and gives burning, pulverizing or shredding paper, destroying or erasing electronic media, and using a vetted destruction contractor as examples. ## What to do this week 1. Put the criteria on one page, with numbers, and date it. Whatever you cannot state as a number, state as a written rule with a stated look-back. 2. Fix the evaluation order and follow it for every applicant — income, then credit, then rental history, then any background check — so nobody's file is worked in a different sequence. 3. Log a reason for every denial that maps to a line in the written criteria, and attach the adverse action notice you sent to the same file. 4. Open your screening vendor's settings and read the actual thresholds: the look-back windows, whether it returns a pass/fail recommendation you are effectively adopting, and whether it is surfacing items outside the FCRA reporting windows. 5. Write a retention period and a destruction method into the policy, covering both the paper file and whatever sits in the screening platform. 6. Take the finished page to local counsel and ask one question: which state or city rules — source of income, criminal look-back, conditional offers, assistance animals — change any line on it? ## Bottom line The federal floor has not moved much: consistent written criteria, a real reason for every denial, an FCRA notice when a report influenced the outcome, and files you can still produce a year or two later. What has moved is HUD's interpretive layer, which is thinner than it was a year ago and actively under rulemaking. That cuts both ways — less federal guidance to follow also means less federal guidance to point at when a complaint arrives. This is general information, not legal advice. Screening law varies by state and locality, statutes and regulations change — the disparate-impact comment period alone runs to October 9, 2026 — and cities regularly add protections the federal Act does not. Have local counsel review your criteria, your denial letters and your retention schedule before you rely on them. ## FAQ **Is HUD's 2016 guidance on criminal records in tenant screening still in effect?** No. HUD's Office of General Counsel stated on [September 25, 2025](https://www.hud.gov/sites/default/files/hudclips/documents/OGC-Memo-on-Fair-Housing-Guidance-9-25-2025.pdf) that the April 4, 2016 criminal-records guidance no longer expresses the office's official legal opinion. The Fair Housing Act and the discriminatory-effects regulation at 24 CFR 100.500 were not changed by that memo, and the FTC still warns that a blanket criminal-record ban may violate the Act. **Does federal law prohibit refusing to rent to a Housing Choice Voucher holder?** Source of income is not among the bases listed in [42 U.S.C. 3604](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3604&num=0&edition=prelim), and HUD withdrew its November 2024 source-of-income guidance in September 2025. HUD's own voucher guidebook notes that public housing agencies may be subject to state or local statutes barring source-of-income discrimination, so coverage depends entirely on where the property is — confirm with local counsel. **What has to be in a tenant screening adverse action notice?** Per the [FTC](https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-landlords-need-know) and [15 U.S.C. 1681m(a)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681m&num=0&edition=prelim): the screening company's name, address and phone number; a statement that it did not make the decision and cannot explain it; and notice of the applicant's right to dispute the information and to get a free copy of the report within 60 days. If a credit score influenced the decision, you also owe the score, its source and date, the score range, and the key factors that hurt it. **Do I still have to grant emotional support animal requests?** HUD's FHEO rescinded its 2013 and 2020 assistance-animal notices and, in guidance dated [May 22, 2026](https://www.hud.gov/sites/default/files/hudclips/documents/AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf), said it will find reasonable cause only for individually trained animals. That is an enforcement posture, not a change to the statute: the same memo notes a private plaintiff may still sue within two years, and state or local law may impose more. Treat each request as a question for counsel. ## Sources 1. [Memorandum: Fair Housing Guidance Memoranda and Documents](https://www.hud.gov/sites/default/files/hudclips/documents/OGC-Memo-on-Fair-Housing-Guidance-9-25-2025.pdf) — U.S. Department of Housing and Urban Development, Office of General Counsel 2. [Enforcement Guidance – Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act](https://www.hud.gov/sites/default/files/hudclips/documents/AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf) — U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity 3. [Housing Discrimination Under the Fair Housing Act](https://www.hud.gov/helping-americans/fair-housing-act-overview) — U.S. Department of Housing and Urban Development 4. [Housing Choice Voucher Program Guidebook: Fair Housing and Nondiscrimination Requirements](https://www.hud.gov/sites/dfiles/PIH/documents/HCV_Guidebook-Chapter_Fair-Housing_April-2025.pdf) — U.S. Department of Housing and Urban Development, Office of Public and Indian Housing 5. [HUD's Implementation of the Fair Housing Act's Disparate Impact Standard; Amendments to HUD's Title VI Regulations (supplemental proposed rule, Docket FR-6540-P-02)](https://www.federalregister.gov/documents/2026/08/10/2026-16228/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard-amendments-to-huds-title-vi) — Federal Register 6. [HUD's Implementation of the Fair Housing Act's Disparate Impact Standard (proposed rule, Docket FR-6540-P-01)](https://www.federalregister.gov/documents/2026/01/14/2026-00590/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard) — Federal Register 7. [Using Consumer Reports: What Landlords Need to Know](https://www.ftc.gov/business-guidance/resources/using-consumer-reports-what-landlords-need-know) — Federal Trade Commission 8. [24 CFR 100.60 — Unlawful refusal to sell or rent or to negotiate for the sale or rental](https://www.ecfr.gov/current/title-24/section-100.60) — Electronic Code of Federal Regulations 9. [24 CFR 100.65 — Discrimination in terms, conditions and privileges and in services and facilities](https://www.ecfr.gov/current/title-24/section-100.65) — Electronic Code of Federal Regulations 10. [24 CFR 100.500 — Discriminatory effect prohibited](https://www.ecfr.gov/current/title-24/section-100.500) — Electronic Code of Federal Regulations 11. [24 CFR 100.10 — Exemptions](https://www.ecfr.gov/current/title-24/section-100.10) — Electronic Code of Federal Regulations 12. [24 CFR 100.202 — General prohibitions against discrimination because of handicap](https://www.ecfr.gov/current/title-24/section-100.202) — Electronic Code of Federal Regulations 13. [24 CFR 100.204 — Reasonable accommodations](https://www.ecfr.gov/current/title-24/section-100.204) — Electronic Code of Federal Regulations 14. [16 CFR 682.3 — Proper disposal of consumer information](https://www.ecfr.gov/current/title-16/section-682.3) — Electronic Code of Federal Regulations 15. [42 U.S.C. 3604 — Discrimination in the sale or rental of housing and other prohibited practices](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3604&num=0&edition=prelim) — Office of the Law Revision Counsel, U.S. House of Representatives 16. [42 U.S.C. 3610 — Administrative enforcement; preliminary matters](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3610&num=0&edition=prelim) — Office of the Law Revision Counsel, U.S. House of Representatives 17. [42 U.S.C. 3613 — Enforcement by private persons](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section3613&num=0&edition=prelim) — Office of the Law Revision Counsel, U.S. House of Representatives 18. [15 U.S.C. 1681c — Requirements relating to information contained in consumer reports](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681c&num=0&edition=prelim) — Office of the Law Revision Counsel, U.S. House of Representatives 19. [15 U.S.C. 1681m — Requirements on users of consumer reports](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1681m&num=0&edition=prelim) — Office of the Law Revision Counsel, U.S. House of Representatives --- Published by the Proppely Research Desk. Canonical: https://www.proppely.com/insights/tenant-screening-fair-housing-federal-rules-2026