Automatically Sealing Records Can Improve Access to Stable Housing

When applying for rental housing, eviction and criminal records follow prospective tenants virtually wherever they go. Tenant screening reports (PDF), generated by screening companies, use publicly available data (such as income, credit, rental and criminal history) to help landlords evaluate applicants. About 90 percent of landlords (PDF) report using tenant screening services to vet prospective tenants. Emerging evidence suggests many landlords view any inclusion of a court record as being disqualifying, regardless of outcome or accuracy of the case. This creates real barriers to housing for those with any criminal or eviction history.

Tenant screening companies can include this information because court records are almost always public data. Yet, court data (PDF) are often unreliable, inaccurate, or outdated. Often, tenant screening reports don’t include relevant information about eviction proceedings, including the outcome of a case. A study of 3.6 million administrative records found 22 percent of eviction records contain ambiguous information or incorrectly represent a tenant’s eviction history.

Automatically sealing or expunging criminal and eviction records—especially those that are inaccurate, misleading, acquitted or dismissed—can reduce the negative economic and social effects for those with court records, giving those in need of stable housing a better chance of finding it.

The status of record expungement and sealing

Currently, most regions require record-holders to seal or expunge files individually by filing a motion. Petitioning the court often comes with filing fees and complex requirements that can necessitate legal assistance. Law firms and legal aid organizations make it clear the process is not easy and can last months, especially for criminal records. 

Additionally, research suggests there’s a discrepancy between records eligible for sealing or expungement and records that are actually sealed or expunged, suggesting that those who are eligible aren’t filing these motions or that courts with a mandate to automatically seal or expunge aren’t doing so.

In Cleveland and Dayton, Ohio, tenants must notify the landlord of their request to seal their eviction record, and the landlord has the right to request a hearing to object. In Dayton, tenants with an eviction case where the landlord won only have to wait six months to file a motion, while in Cleveland, they must wait 5 years and explain any “unusual or mitigating circumstances” that led to the eviction. In Maryland, the waiting period to file a petition is one year. And in Utah, for nonpayment-of-rent evictions, if the notified landlord submits a written objection to a sealing petition, the court is unable to expunge the record.

The standards for criminal records vary significantly across states, but most states impose stringent requirements and lengthy waiting periods. Some states, like Ohio (PDF), offer the prosecutor and victim a chance to object to an applicant’s record being sealed. Iowa imposes waiting periods for misdemeanors and allows only one expungement of a misdemeanor in a person’s lifetime. In New Mexico (PDF), record-holders must file a petition to the court, notifying the district attorney, department of public safety, and the law enforcement agency that arrested them, giving them a chance to object. The court then has the discretion to determine whether justice will be served by expunging the record. Despite the evidence that a previous criminal record doesn’t predict tenant behavior or the likelihood of future crimes (PDF), states impose waiting periods to seal or expunge criminal records, ranging from 1 to 10 years. riods to seal or expunge criminal records, ranging from 1 to 10 years.

Automatic sealing and expunging can advance better outcomes

To combat some of these negative effects, states and cities have passed laws making certain eviction and criminal records eligible to be sealed or expunged. Automatically sealing records reduces the barrier to stable housing, especially for those who don’t have the time, money, or resources to file a motion.  

Methods for automatic sealing and expungement of eviction records vary by state and city. Some places, like Washington, DC, (PDF); Idaho; and Oregon seal records after a case has concluded, either immediately or after a short waiting period. Some states, like Arizona, California, and Nevada (PDF), automatically seal eviction records when a case begins and keep them sealed if the case was dismissed or won by the tenant. Because it’s unclear whether tenant screening companies update their records to reflect sealings or expungements, imposing a waiting period and giving tenant screening companies access to these records can put an applicant at greater risk for being rejected in housing applications.

Automatic sealing laws are more complicated for criminal records, but states with these laws most commonly automatically seal records for more minor convictions like misdemeanors. Recent findings suggest this is effective for those with old or minor records. Waiting periods are often imposed for more-serious crimes, which can prolong housing barriers for those with criminal records, even after they’ve served time. Imposing shorter waiting periods for automatically sealing criminal records can help those with records find stable housing, which is linked to lower rates of recidivism.

Policymakers can reduce the negative effects of court records

Recognizing the large impact of records, states and counties can reduce the negative effects of these records through multiple mechanisms.

• Allowing automatic sealing or expungement of court records: Automatically sealing records helps reduce the impact of past court cases more equitably and efficiently. To protect people in the future, cases can be sealed at filing until a guilty verdict is reached.
• Reducing barriers for record sealing: Although sealing is the most efficient approach, states and counties can also broaden the kinds of records eligible for sealing and expungement and reduce barriers and costs for people wanting to seal their records. While this maintains inequalities in access to record-removal by income, education, and resource access, it can lower barriers overall.
• Regulating the use of court records by screening companies: Given that rental screening companies have little regulation and oversight, it’s unclear whether and how often tenant screening companies update their records to reflect removed records. There’s also little recourse for prospective tenants who find their records have been illegally reported or are misrepresented in tenant screening background checks. Individually disputing records can be a lengthy and difficult legal process, especially if they are misreported by multiple screening companies. States and counties can consider regular oversight of tenant screening companies to understand how and where records are being illegally misattributed and shared, regulate the kinds of data tenant screening companies have access to, and enforce (PDF) updating records to reflect changes in sealing and expungement laws.