N.J. Admin. Code § 13:5-1.9 - Withdrawal of conditional offer

(a) A housing provider may withdraw a conditional offer based on an applicant's criminal record only if the criminal record check is conducted consistent with the requirements at N.J.A.C. 13:5-1.8, and only if the housing provider determines, by preponderance of the evidence, that the withdrawal is necessary to fulfill a substantial, legitimate, and nondiscriminatory interest.

1. The determination of whether an interest is substantial, legitimate, and nondiscriminatory requires a case-specific, fact-based inquiry, where "substantial interest" means a core interest of the entity that has a direct relationship to the function of that entity, "legitimate" means that a justification is genuine and not false or pretextual, and "nondiscriminatory" means that the justification for a challenged practice or policy does not itself discriminate based on a protected class.

(b) Should the applicant have a criminal record of an offense that may be taken into consideration, the housing provider shall perform an individualized assessment of the application in light of the following factors:

1. The nature and severity of the criminal offense;

2. The age of the applicant at the time of the occurrence of the criminal offense;

3. The time that has elapsed since the occurrence of the criminal offense;

4. Any information produced by the applicant, or produced on the applicant's behalf, in regard to the applicant's rehabilitation and good conduct since the occurrence of the criminal offense;

5. The degree to which the criminal offense, if it reoccurred, would negatively impact the safety of the housing provider's other tenants or property; and

6. Whether the criminal offense occurred on or was connected to property that was rented or leased by the applicant.

(c) A housing provider must establish, by a preponderance of the evidence, that the withdrawal is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.

(d) If a housing provider withdraws a conditional offer, the housing provider shall provide the applicant with written notification that includes, with specificity, the reason or reasons for the withdrawal and an opportunity to appeal the denial by providing evidence to the housing provider demonstrating inaccuracies within the applicant's criminal record, evidence of rehabilitation, or other mitigating factors. The Model Notice of Withdrawal made available by the Division on its website must be a standalone document, written in at least size 12 font, and must include an acknowledgment that the applicant has received the notice, whether physically or electronically. This form shall be made available in English, Spanish, and in any other language the Director deems appropriate. A housing provider that provides the applicant with a will be liable pursuant to the Act if the applicant provides evidence that the criminal record is inaccurate and the housing provider fails to confirm the accuracy of the information before continuing to rely upon it.

Notes

N.J. Admin. Code § 13:5-1.9

Adopted by 54 N.J.R. 76(a), effective 1/3/2022