HUD’s FAIR HOUSING UPDATE AND CHANGES

By Mark Zinman | Zona Law

The U.S. Department of Housing and Urban Development ("HUD") just announced significant changes to fair housing enforcement and compliance. We are here to break down the news, and how it affects owners and managers. We want to highlight some things about Arizona, in light of the federal changes.

There are the main takeaways:

1. Many of the prior HUD memorandums, including those that address assistance animals and those that address criminal standards, have been rescinded and are no longer valid. For example, all the previous direction given by HUD about assistance animals and criminal standards, is no longer valid. However, no new memorandums have been provided. Therefore, the area of the law is uncertain until we get clarification on how HUD interprets the law. Further, while HUD has changed its stance on these issues, the Arizona Attorney General still has discretion in the cases she takes and how she views such issues. We do NOT suggest changing policies at this time. The reason for this is that while HUD changes it’s view, that is not a change in the law – that is just a change in how they interpret the law. Property owners are still bound by the language of the fair housing act, and more importantly here, to the years of case law. Until new direction is put out, or new cases are published, we do not suggest widespread changes to owner’s policies.

2. HUD announced that the agency will now prioritize cases involving clear evidence of intentional discrimination rather than disparate impact theories. This means that while you must still treat all applicants and residents fairly and equally, HUD will concentrate its resources on investigating overtly discriminatory conduct.

3. HUD did write a new memo saying that public housing authorities (not market-rate properties), must:

a. Screen for criminal history prior to admission into HUD-assisted housing;

b. Monitor assisted households to remove individuals that pose a threat to the safety and peaceful enjoyment of their units; and

c. Deploy resources to ensure the ongoing safety of such properties through physical security features and/or contracted safety services. In other words, the federal government is reaffirming its belief that criminal records and conduct is important to the housing industry. This appears to be a shift from prior administrations.

BIG TAKEAWAY - This does NOT change the law and does not change rulings from prior fair housing lawsuits - it merely indicates how the Trump administration will interpret fair housing issues. Further, this does not change what actions the Arizona Attorney General may take. Also, a person still has an individual right to sue under the Fair Housing Act and could make these same arguments. We do not suggest changes to policies at this time, but we are happy to talk to clients about individual policies that they may wish to review.