Biden administration keeps campaign promise to restore Obama-era fair housing rules

July 5-11, 2021

BCN Staff – June 27, 2021


In keeping a promise to restore an Obama-era fair housing rule implemented by former U.S. Housing and Urban Development Secretary Ben Carson, the Biden administration has taken the first step in that direction.


Earlier this month, new HUD Secretary Marcia Fudge announced that HUD published an interim final rule with the Federal Register to restore the implementation of the Fair Housing Act’s Affirmatively Furthering Fair Housing (AFFH) requirement. The publication provides a robust definition of the duty to affirmatively further fair housing, to which many HUD grantees must certify compliance. 


Additionally, Fudge said HUD is committed to providing communities that receive federal funding with the technical support they need to meet their long-standing fair housing obligations. In addition to barring housing discrimination, the Fair Housing Act requires HUD and its funding recipients, such as local communities, to also take affirmative steps to remedy fair housing issues such as racially segregated neighborhoods, lack of housing choice, and unequal access to housing-related opportunities. 


To fulfill this requirement, HUD in 2015 under former President Barack Obama promulgated a rule that compelled each covered funding recipient to undertake a defined fair housing planning process. Funding recipients were required to complete an assessment of fair housing issues, identify fair housing priorities and goals, and then commit to meaningful actions to meet those goals and remedy identified issues, with HUD reviewing each assessment. 


Under Carson, the Trump administration had suspended implementation of this rule and eliminated the 2015 rule’s procedural requirements, redefining the regulatory requirement so it was no longer consistent with the actual Fair Housing Act guidelines.


In December, after issuing an apology for decades of racist policies that included steering, redlining, and creating covenants that prohibited nonwhite people from living in certain communities, the influential National Realtors Association vehemently opposed the implementation of new fair housing rules backed by former President Donald Trump and Carson.


After repealing new fair housing rule in July, President Trump during his presidential campaign cited the former Obama era law as a threat to suburban voters, which some housing advocates claimed was a racially charged appeal to white voters. If implemented, the new HUD rules would allow local officials to have significantly more jurisdiction in determining what qualifies as fair housing, which critics say could open the door in the current tight housing market to further discrimination against black and minority home buyers seeking to move to the suburbs.


In opposition, NAR said the rule change threatened to strip away the rule’s original civil rights purpose mandated by the 1968 law – which ironically the association opposed. In Arkansas, the influential Arkansas Realtors Association (AR) has 28 independent local realtor boards and associations and serves as the state arm of Washington, D.C.-based NAR. 


“The National Association of Realtors is disappointed that HUD has taken this step, which significantly weakens the federal government’s commitment to the goals of the Fair Housing Act,” former NAR President Vince Malta said in January. “The viability of our 1.4 million members depends on the free, transparent and efficient transfer of property in this country, and NAR maintains that a strong, affirmative fair housing rule is vital to advancing our nation’s progress toward thriving and inclusive communities.


Under the restored fair housing regulatory definition announced by Fudge, municipalities and other HUD funding recipients that must regularly certify compliance with Fair Housing Act’s requirements and commit to taking steps to remedy any unique issues. To support compliance with those rules, HUD will provide a voluntary process that funding recipients can choose to use to identify the fair housing concerns that exist locally and commit to specific steps to remedy them. As with the Obama-era regulations, HUD will also again provide technical assistance and support to funding recipients that carry out this voluntary fair housing planning process.


“More than 50 years since the Fair Housing Act’s passage, inequities in our communities remain that block families from moving into neighborhoods with greater opportunities,” said Secretary Fudge. “As a former mayor and Member of Congress, I know firsthand the importance of giving localities the tools they need to ensure their communities have access to safe, affordable housing near quality schools, transportation, and jobs. Today, HUD is taking a critical step to affirm that a child’s future should never be limited by the ZIP code where they are born.”


Fudge said the updated rule is one of the ways in which HUD fulfills its legal mandate under the Fair Housing Act to “affirmatively further” the purposes of federal housing law. Additionally, it is consistent with President Biden’s January 26 executive order directing HUD to examine the Trump administration’s fair housing rules and take all steps necessary to implement the Fair Housing Act’s requirement that the federal agency administer its programs in a manner that affirmatively furthers fair housing. 


The interim final rule will go into effect on July 31, 2021. HUD will take comments for 30 days after publication and may act on them prior to the effective date of the rule. HUD said it intends to undertake a separate rulemaking to build upon and further improve the 2015 rule by instituting a new fair housing planning process and framework that increases efficiency and improves outcomes for communities across the country.



CDC extends eviction ban


In addition to the repeal of the Trump-era fair housing rules, the Supreme Court agreed Tuesday (June 29) that the Centers for Disease Control and Prevention lacked authority to implement a blanket, nationwide eviction moratorium. Although the court declined to lift the ban immediately, the ruling means the current moratorium should expire at the end of July. 


Earlier in the week, the Biden administration had directed the CDC to extend the executive order banning evictions for certain renters until July 30, 2021.  The CDC extension, the second under President Biden, is a temporary eviction moratorium to protect public health and prevent further spread of COVID-19, although a U.S. District Court judge for the District of Columbia on May 4 struck down the nationwide ban, saying it was unlawful and exceeded federal authority. 


After the ruling, the U.S. Department of Justice, under Attorney General Garland Merrick, immediately filed an appeal. The D.C. District Court then issued a temporary stay, meaning the CDC eviction ban stays in place until Tuesday’s 5-4 Supreme Court ruling. When the eviction moratorium was approved by Congress in early 2020 under the CARES Act expired last summer, the CDC acting on behalf of the U.S. Department of Health and Human Services (HHS) and an executive order by former President Trump, implemented its own nationwide eviction moratorium.


“This is a victory for property rights,” Oppler said. “For more than a year, mom-and-pop property owners have been pushed toward financial ruin as they upkeep their properties and pay their taxes and mortgages with no income of their own. With the pandemic waning and the economy improving, it is time to restore the housing sector to its healthy, former function. Property owners also deserved this absolute clarity from our federal court system regarding property rights in America to avoid similar financial harm in the future.


“This ruling keeps in place certainty for tenants for another month while offering helpful clarity to struggling housing providers,” continued Oppler. “It is now critical that the nearly $50 billion in rental assistance NAR helped secure gets out to those who need it most.”


That federal eviction ban applies to all residential rental properties nationwide, not just those receiving federal assistance. It also prohibits evictions based upon nonpayment of rent when, among other things, a tenant expects to earn less than $99,000 in income, would be homeless if evicted and is unable to pay full rent due to substantial loss of household income. Notably, the CDC moratorium does not purport to prohibit evictions based on other grounds, such as a tenant holding over after the expiration of a lease.


At least six lawsuits have arisen around the country challenging the CDC’s moratorium in federal court. The Georgia and Alabama state Realtors associations, part of the NAR, along with two housing providers and their property management companies, filed the lawsuit in defense of property owners around the country struggling to pay bills without rental income. NAR supported the lawsuit and, separately, helped secure nearly $50 billion in rental assistance provided by Congress to help tenants pay their bills, saying the ban was no longer needed.


Prior to the expiration of the original CDC moratorium, Congress extended it by an additional 30 days. The CDC has since extended the moratorium itself three times. Tenants and landlords can find application and declaration forms for the temporary halt on evictions here:


The Federal Housing Administration (FHA) also announced more measures on June 25 to help homeowners with FHA-insured mortgages who are struggling financially due to the COVID-19 pandemic. These measures will provide additional, immediate relief while also expanding outreach and home retention options for struggling homeowners who are disproportionately people of color, said Fudge. 


PHOTO CAPTION: (Photos by Daily Record Staff)


As Arkansas' rental market continues to grow with addition of the newly constructed The Residences at Harbor Town, the Biden administration recently reinstated key parts of the Fair Housing Act that prohibits discrimination. The Residences luxury apartments offer designer features such as electric fireplaces, granite countertop, spacious balconies and light walnut flooring. They are now leasing.