Fair Chance in Housing Act

There are two exceptions that housing providers may ask about on initial application materials:

• Whether an applicant has ever been convicted of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing; or,
• Whether the applicant is subject to a lifetime registration requirement on a state sex offender registry.

A housing provider can never, either before or after the issuance of an offer, ask about the following types of criminal records or rely upon the following types of criminal records in rejecting an applicant (whether the information is obtained from an applicant or from a third party vendor or other outside person/entity):

1. arrests or charges that have not resulted in a criminal conviction;
2. expunged convictions;
3. convictions erased through executive pardon;
4. vacated and otherwise legally nullified convictions;
5. juvenile adjudications of delinquency; and
6. records that have been sealed.

The law also prohibits housing providers from requiring drug or alcohol testing; from disseminating or distributing an applicant’s record in any way not authorized under the FCHA; and from retaliating against anyone for exercising their rights to file a complaint under the law.

If a housing provider chooses to evaluate criminal history, it may do so only after a conditional housing offer has been made. Before considering the applicant’s criminal history, it must provide a Disclosure Statement informing the applicant that the eligibility criteria for the unit include the applicant’s criminal history, and apprising the applicant of their right to demonstrate mitigating factors, such as inaccuracies in their criminal record or evidence of rehabilitation.

After a conditional offer, a housing provider can only consider the following types of criminal records (see below for further information on interpreting relevant criminal offenses):

• A conviction for murder, aggravated sexual assault, kidnapping, arson, human trafficking, sexual assault, endangering the welfare of a child in violation of N.J.S.2C:24-4(b)(3);
• A conviction for any crime that requires lifetime state sex offender registration;
• Any conviction for a 1st degree indictable offense, or release from prison for that offense, within the past 6 years;
• Any conviction for a 2nd or 3rd degree indictable offense, or release from prison for that offense, within the past 4 years; and
• Any conviction for a 4th degree indictable offense, or release from prison for that offense, within the past 1 year.

If a housing provider finds an offer in an applicant’s record that the housing provider is permitted to consider, the housing provider may withdraw the conditional offer only if withdrawal is necessary to fulfill a substantial, legitimate, and non-discriminatory interest. In so doing, the housing provider must perform an individualized assessment based on the following factors:

• Nature and severity of the offense(s);
• Applicant’s age at the time of the offense(s);
• How recently the offense(s) occurred;
• Any information the applicant provided in their favor since the offense(s);
• If the offense(s) happened again in the future, whether that would impact the safety of other tenants or property; and
• Whether the offense(s) happened on, or was connected to, property that the applicant rented or leased.

The housing provider must also provide a Notice of Withdrawal form indicating the specific reasons for the withdrawal, and notifying the applicant of their right to appeal the denial of their application. The applicant can then request a copy of all the information the housing provider relied upon in making the withdrawal within 30 days of receiving the Notice, and the housing provider must provide the information free of charge within 10 days after receipt of a timely request.

If the housing provider withdraws the conditional offer, the housing applicant may then use the information provided on the Notice of Withdrawal form to appeal to the housing provider, claiming that the housing provider violated the FCHA, and provide additional information in support of a violation. A housing provider must consider and provide a determination based on that new information within 30 days.

Note: If a housing provider utilizes any vendor or outside person/entity to conduct a criminal record check on their behalf, the housing provider must take reasonable steps to ensure that the vendor or outside person/entity conducts the criminal record check consistent with the requirements of the FCHA. Specifically, if a housing provider receives a criminal history inquiry conducted by a vendor or outside person or entity that is conducted in violation of the FCHA in that it reveals a record that is not permitted to be considered under the FCHA, the housing provider must show that it did not rely on that information in making a determination about an applicant.

Anyone who believes their rights under the FCHA have been violated may file a complaint with DCR within 180 days of the incident. Click here to learn more about filing a complaint with DCR. You cannot be subjected to retaliation for filing a complaint or for attempting to exercise your rights under the FCHA.

Housing providers subject to the FCHA include landlords, owners, lessors, sublessors, assignees, or their agents, or any other person receiving or entitled to receive rents or benefits for the use or occupancy of any rental dwelling unit. Under the FCHA, a rental dwelling unit means a home offered for rent by a housing provider for residential purposes, except for a dwelling unit in an owner-occupied premises of no more than four (4) dwelling units.

In determining whether to withdraw a conditional offer, a housing provider may only consider the specific indictable offenses outlined in the FCHA.

The New Jersey Criminal Code labels its most serious crimes as indictable offenses, and further classifies them by degree. Click here to view a spreadsheet outlining indictable offenses and describing degrees of such offenses.

P.L.2021, c.298, adopted in November 2021, clarifies New Jersey’s classification of criminal offenses committed in other states and under federal law (i.e. in other jurisdictions). The law explains, in relevant part, that a conviction in another jurisdiction is considered a conviction of a crime for the purposes of New Jersey law if the other jurisdiction authorized a sentence of imprisonment of more than one year. Click here to read the law and learn more.

Below is a list of some free legal service providers available to assist very low-income, low-income or moderate-income applicants or tenants throughout New Jersey:

• Legal Services of New Jersey: lsnj.org (1-888-576-5529)
• Legal Services of Northwest Jersey: lsnwj.org
• South Jersey Legal Services: lsnj.org/sjls/ (1-800-496-4570)
• Volunteer Lawyers for Justice New Jersey: vljnj.org/get-help (973-645-1955)
• Community Health Law Project: chlp.org (includes contact information for ten (10) regional offices) (973-274-1175) (for applicants/tenants with disabilities or chronic health conditions).

Resources:

• FCHA Virtual Event Video Recording
  (Attend one of our future FCHA webinars. Visit our trainings page to learn more.)
• FCHA Additional Resources Document
• FCHA Explainer Video
• FCHA Flowchart Guide
• A printable Know Your FCHA Rights wallet card

Linked Documents:

• 2022 Attorney General Fair Chance in Housing Act Letter
• 2021 Attorney General Fair Housing Letter
  Translations: Arabic | Chinese (Simplified) | Chinese (Traditional) | Gujarati | Haitian Creole | Korean | Polish | Portuguese | Punjabi | Russian | Spanish | Urdu
• Criminal Offenses Bill
• Fair Chance in Housing Act
• Rules Pertaining to Fair Chance in Housing Act
• Model Disclosure Statement
  Translations: Spanish
• Model Fair Housing Policy
  Translations: Arabic | Chinese (Simplified) | Chinese (Traditional) | Gujarati | Haitian Creole | Korean | Polish | Portuguese | Punjabi | Russian | Spanish | Urdu
• Model Notice of Withdrawal
  Translations: Spanish
• Statutes Spreadsheet
• Fair Chance in Housing Act Regulations

In order to file a complaint with DCR, you must first submit an intake form. You can submit the intake form:

• Online by creating an account and using the NJ Bias Investigation Access System (NJBIAS)
• By calling 1.833.NJDCR4U (voice) and asking a DCR receptionist to assist you in filling out the form on the NJ Bias Investigation Access System (NJBIAS)

To submit an intake form you will need the specific facts and any records about the incident, and copies of any documents that support your complaint. This may include:

• If known, the names and contact information of the entity or people that you believe violated your rights under the FCHA;
• if known the names and contact information of potential witnesses;
• If available, documents, text messages, internet postings, or emails that support or relate to your allegations.

DCR provides people with disabilities equal access to our services and information. If you need an accommodation for a disability in order to complete an intake form, or to otherwise use our services, call 1.833.NJDCR4U (833-653-2748) (voice), call the Relay Service at 711, or email NJDCR4U@njcivilrights.gov.

Accessibility for People with Limited English Proficiency

NJBIAS is available in English and Spanish. DCR also offers translation services for people with limited English proficiency who speak other languages. Call 1.833.NJDCR4U (833-653-2748) or email at NJDCR4U@njcivilrights.gov to request assistance in your language.

After you submit a FCHA intake form, a DCR investigator will endeavor to contact you within 72 hours by phone to schedule an intake interview. During the interview, the investigator will gather any information necessary to determine whether DCR has jurisdiction over your complaint (i.e., whether you are alleging a violation of the FCHA that occurred within the past 180 days).

If DCR has jurisdiction over your complaint, DCR will prepare a complaint form for your signature. Once you sign the complaint, you are known as the “Complainant.”

You may file a FCHA complaint with or without an attorney. The process is free.

DCR will then serve the complaint on the part(ies) that you allege violated the law, known as the “Respondent(s).” This means that unlike some other legal proceedings, you do not have to personally serve the complaint on Respondent(s); DCR will serve it for you.

Within 14 days of receiving the complaint, DCR must  offer a  Respondent an opportunity to mediate,  address and remediate the complaint.

If the complaint is not resolved within those 14 days, a  Respondent is required to respond to the allegations in the complaint by filing an “Answer” and “Position Statement” and providing DCR with any evidence that supports its position. An Answer is a Respondent’s opportunity to admit or deny the allegations in the complaint and to set out its defenses. A Position Statement is a Respondent’s opportunity to provide specific, factual responses to each allegation, to provide copies of documents supporting its position and/or version of events, and to identify specific documents and witnesses supporting its position. You will be permitted to review the Respondent’s Answer and Position Statement and to submit any information you have in rebuttal.

After the Respondent(s) have submitted an Answer and Position Statement, the information and evidence submitted by you and the Respondent(s) (collectively called “the parties”) will be reviewed and analyzed by DCR. At this point, DCR may decide to conduct an investigation and assign the case to an investigator. DCR investigators are neutral, and can use several investigative tools to gather evidence including witness interviews, site visits, a review of relevant documentary evidence, and/or a fact-finding conference.

It is important that you preserve all relevant evidence, including electronically stored evidence such as website postings, texts, voice recordings, and email messages, until your case has concluded.

DCR also offers free dispute resolution services to parties who wish to resolve their matter on mutually agreeable terms. A voluntary resolution can be negotiated at any time during the complaint or investigation process. This means that a housing provider who initially declines to participate in the 14-day early mediation process may later request mediation. Please note on your intake form if you are interested in DCR’s free dispute resolution services. Should Respondent concur, DCR will endeavor to set up a mediation.

If DCR commences an investigation and is unable to reach an agreement with Respondent, DCR will complete its investigation and determine whether the FCHA allegations in the complaint are substantiated.

If DCR determines there is sufficient evidence to substantiate your allegation that the FCHA was violated, it will issue a “Notice of Violation.” This notice must apprise the Respondent of the nature of the violation, the acts or omissions supporting such violation, DCR’s proposed remedies and penalties, and advise Respondent of its right to appeal the decision with the Director within 15 days of receipt of the Notice of Violation. Respondent may either agree to the proposed remedies and penalties, or request an appeal. If Respondent fails to respond, the Director may issue a final order imposing the remedies and penalties set forth in the Notice of Violation. The complainant will receive a copy of the Notice of Violation as well. If the respondent appeals to the Division, the Director shall either decide a Respondent’s appeal on the written record, or if it is necessary to resolve material factual disputes, shall provide for a hearing in the Office of Administrative Law.

If DCR determines that the allegations in the complaint are not substantiated, it will advise the parties of the determination and issue a Finding of an Unsubstantiated Complaint. A complainant may appeal a decision that a complaint is unsubstantiated with the Appellate Division of the Superior Court, New Jersey’s intermediate court, within 45 days after you are served with a Finding of an Unsubstantiated Complaint. If you fail to file an appeal within 45 days, you will lose your right to have a Court review the Director’s determination.

If DCR finds that a violation of the FCHA occurred in your case, it can order the Respondent to remedy the harm caused by its conduct. That may include a monetary penalty and relief aimed at preventing FCHA violations, including educating employees about the FCHA and reporting compliance to DCR. Additionally, if Respondent has committed a previous FCHA violation, DCR may require Respondent to provide you with the previously denied unit or a similar rental unit, and return your application fee.

You may withdraw your DCR case at any time so long as the Director has not yet issued a Finding of an Unsubstantiated Complaint. Please note, however, that DCR is the sole entity that has been authorized to resolve FCHA violations.

DCR is designed to be accessible to people regardless of whether they have access to an attorney. Although it is not a requirement, any party that appears before DCR may be represented by an attorney. Attorneys are required to file a Notice of Appearance with DCR.

Retaliation against a person who files a complaint or participates in an investigation at DCR is prohibited by law. Please notify the investigator if, during or after an investigation, you believe that you or someone else has been retaliated against for participating in DCR’s investigation.