Final Rule on Affirmatively Furthering Fair Housing Released

HUD recently released the final rule implementing the Fair Housing Act of 1968’s obligation for jurisdictions receiving federal funds for housing and urban development to affirmatively further fair housing (AFFH). The Fair Housing Act not only makes it unlawful for jurisdictions to discriminate, but also requires jurisdictions to take actions to undo historic patterns of segregation and other types of discrimination, as well as to take actions to promote fair housing choice and to foster inclusive communities.

Since AFFH has been law, there hasn’t been meaningful guidance on how to comply with it. Since 1998, housing authorities have had to certify that they would affirmatively further fair housing, but they have only been required to complete an analysis of impediments to fair housing choice, take appropriate actions to overcome the effects of impediments, and keep records of those actions. There has been no guidance on what constitutes an impediment to fair housing choice or an appropriate action to overcome it.

Under the new system, the analysis of impediments is replaced by the Assessment of Fair Housing (AFH). The rule provides a standardized framework for program participants to use to identify and examine “fair housing issues” and the underlying “contributing factors” that cause the fair housing issues. HUD will provide each program participant with data covering the local jurisdiction and the surrounding region, and program participants must consider these data when assessing fair housing. HUD will receive, review, and decide whether the AFH can be accepted. Public participation is required in the development of the AFH, and the AFH must be submitted every five years.

The new AFFH system will not begin until HUD publishes a revised version of the proposed Assessment Tool. HUD has yet to publish a revised Assessment Tool reflecting public comment submitted by Nov. 25, 2014. The final AFFH rule can be found here.