Most landlords are no longer allowed to ask prospective tenants whether they have a criminal record. Photo: Natalie Orenstein

Berkeley has joined a small number of cities that ban landlords from conducting criminal background checks on prospective tenants or asking about their records at all.

The “fair chance” proposal, months in the making, managed to secure not just a unanimous vote from the Berkeley City Council on Tuesday, but also the endorsement of the Berkeley Property Owners Association and passionate approval by local residents who’ve spent time in prison.

“I see this not only as a moral issue but as a key homelessness prevention strategy,” said Mayor Jesse Arreguín, who introduced the item with council co-sponsors Cheryl Davila, Kate Harrison and Ben Bartlett.

Such “ban the box” policies already exist for hiring managers across California, but versions of housing laws prohibiting background checks are only in place in Richmond, Oakland, Portland and Seattle, according to the council report.

The Alameda County Fair Chance Housing Coalition, led by Just Cities, developed the Berkeley policy in response to the challenges many formerly incarcerated people face trying to find housing locally. Several spoke Tuesday about trying in earnest to rejoin their communities only to get written off immediately when landlords see felonies on their records. 

“Even living with family members is not always a viable solution as it may put their family’s housing at risk — rental agreements may prohibit or limit people with criminal histories from residing in the units,” said the council report.

The new ordinance prohibits all landlords from advertising that they don’t accept tenants with criminal records, asking about their records, or retaliating against a tenant based on their record. It prevents most private landlords from conducting background checks, but HUD-funded housing providers have to check for certain convictions per federal law. State law also allows owners to check the sex offender registry.

The Berkeley ordinance excludes owner-occupied properties with three units or less, those where the owner is on sabbatical, and tenants who select their own roommates.

Once the ordinance is in effect, tenants who believe they were discriminated against will be able to sue their landlord or file a complaint with the city. Tuesday’s vote directs city staff to come up with an annual budget, as well as staffing and procedures for handling complaints and other enforcement aspects.

Council members poured out praise for the “fair chance” policy and the advocates who worked on crafting it.

“This is about integrating and making sure we don’t have this permanent, walled-off class of persons unable to access the good life,” said Bartlett. The councilman is the nephew of the late Congressman Ron Dellums, whose Dellums Institute for Social Justice worked on the “fair chance” policy. The ordinance is named after Dellums.

Councilwoman Lori Droste said the new law is an example of a “housing-first solution to homelessness.”

“We have to acknowledge that a significant portion of individuals living in encampments have records. If the same people saying encampments bother them don’t support a fair chance to housing, that is diametrically opposed. This is a policy that will help our community as a whole,” she said.

Eight people sit along a table. One is speaking into a microphone
Panelists discuss the “fair chance” proposal in November 2019. From left: Megan Abell, Krista Gulbransen, Anita Wills, Lance Knobel (moderator), John Jones II (moderator), Jesse Arreguín, Katie Dixon, Margaretta Lin. Photo: Natalie Orenstein
Panelists discuss the “fair chance” proposal in November 2019. From left: Megan Abell, Krista Gulbransen, Anita Wills, Lance Knobel (moderator), John Jones II (moderator), Jesse Arreguín, Katie Dixon, Margaretta Lin. Photo: Natalie Orenstein

Droste, laughing, admitted that she herself “ran into numerous law enforcement challenges” when she was younger, and Harrison said her own brother had been wrongfully convicted. Both officials said they believe housing had not become an issue for them or their family members because they’re white. They were two of the many speakers Tuesday who said that experiences with the criminal justice system, and thus housing challenges, disproportionately affect communities of color. One referred to the “terrible marriage between gentrification and criminalization.”

“More often than not, we’re not seen as human beings,” said Succati Shaw, a formerly incarcerated mother who said the law gives her children a “chance to live somewhere without hearing, ‘We don’t rent to people like you.’”

Another emotional testimony came from Towanda Sherry, an advocate whose son was recently killed.

“My son made a mistake, for which he served time,” said “Miss Sherry.” “Living in public, affordable housing, I could not allow my son to come back and live there. He had to sleep in folks’ cars, couch surf, live with girlfriends and sometimes on the streets…If he could have stayed with me, I know he’d still be here today.”

The ordinance has not always enjoyed such widespread approval. In the fall, property owners raised concerns about the safety of their tenants and properties, the difficulty of embracing a “fair chance” law in a city with strong eviction protections, and the potential unintended consequence of actually exacerbating racist tenant denials if landlords were just left to rely on stereotypes instead of background checks. One property management company, Premium Properties, sent tenants a letter warning that “a convicted violent criminal may be moving into your building.”

But Krista Gulbransen, executive director of the Berkeley Property Owners Association, voiced strong support for the new law Tuesday. She praised the item’s authors and advocates for looping BPOA into conversations before the proposal came to the council — something she said has never happened before during her five years in her role.

“I’m going to cry. This is the first time I’ve been able to come forward and support something,” she said.

But she cautioned the council against just “throwing down a law” without extensively educating property owners about the new rules. Gulbransen told Berkeleyside that the mayor’s commitment to doing that outreach with BPOA helped sway the organization, along with a promise to stop short of provisions in Seattle and Portland’s laws that require landlords to accept the first tenant that applies.

Councilwoman Rashi Kesarwani, the only official to raise concerns about the law Tuesday, noted there is no cost estimate for implementation in the proposal and questioned exactly how the law will be enforced.

Arreguín responded that “the actual cost will need to be fleshed out,” and said Berkley could pair up with Oakland — which recently passed its own “fair chance” law — to seek philanthropic funds. He noted that legal remedies pursued by tenants will not cost the city anything, but said Berkeley could potentially contract with another agency to expand its existing administrative hearings for those who pursue that process.

The law also lets landlords off the hook for six months after the ordinance is adopted, unless the city issues them a warning letter first.

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Natalie Orenstein reports on housing and homelessness for The Oaklandside. Natalie was a Berkeleyside staff reporter from early 2017 to May 2020. She had previously contributed to the site since 2012,...