President Joe Biden has directed the United States Department of Housing and Urban Development (HUD) to re-examine the the 2020 Trump-era rule which limited the role of the federal government in encouraging local government to affirmatively further the goals of the Fair Housing Act to prevent housing discrimination. Also, under review is the 2020 HUD rule regarding implementation of the “disparate impact” standard of the Fair Housing Act.
Although the Fair Housing Act does not specifically mention the housing practices, policies and services of condominiums, homeowners associations, and housing cooperatives, the courts and HUD have long- recognized that the Fair Housing Act applies to prohibit discrimination with respect to owners and residents of such communities. The federal fair housing law prohibits discrimination based on race, color, national origin, religion, sex, disability, and familial status. Community association boards are also required to affirmatively take action to prevent harassment and a hostile housing environment caused by the conduct of owners, residents and managers.
In a memorandum issued on January 26, 2021, President Biden explained that the housing policies and practices of the federal government during much of the 20th century “systematically supported discrimination and exclusion in housing and mortgage lending”.
Although the Fair Housing Act was enacted more than 50 years ago in 1968 to lift barriers that created separate and unequal neighborhoods on the basis of race, ethnicity, and national origin, access to housing and the creation of wealth through homeownership have remained “persistently unequal in the United States”, according to the memo.
President Biden declared that it is the policy of his Administration that the federal government “shall work with communities to end housing discrimination, to provide redress to those who have experienced housing discrimination, to eliminate racial bias and other forms of discrimination in all stages of home-buying and renting, to lift barriers that restrict housing and neighborhood choice, to promote diverse and inclusive communities, to ensure sufficient physically accessible housing, and to secure equal access to housing opportunity for all.”
In the final months of the Trump Administration, HUD issued a rule entitled “Preserving Community and Neighborhood Choice” and a rule entitled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard”. President Biden’s January, 2021 Memorandum instructed HUD to determine the effect these rules has had on HUD’s statutory duty to affirmatively further fair housing and to ensure compliance with the Fair Housing Act. Based on that examination, the President further instructed HUD to “take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirement that HUD administer its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act including by preventing practices with an unjustified discriminatory effect.”
In anticipation that HUD will be more active in enforcing the fair housing laws in coming years, boards and managers of condominiums, homeowner associations and housing cooperatives should be mindful of the fair housing implications of the community rules, practices and policies. This includes actions such as enforcement of rules and covenants, collecting assessments, review of architectural change requests, review of requests for reasonable accommodations and modifications based on disability, use of common areas, and providing community services.
Posted by Thomas Schild Law Group, LLC which represents condominiums, homeowner associations, and housing cooperatives throughout Maryland (including Montgomery County, Prince George’s County, Howard County, Frederick County, and Baltimore) and Washington, D.C.