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President Issues Fair Housing Memorandum to HUD

On January 26, 2021, President Biden issued a memorandum (the “Memorandum”) to the Secretary of Housing and Urban Development (HUD).

The Memorandum is addressed to the Secretary of HUD, with the request to examine the effects of two rules related to fair housing that were enacted during the previous Administration, with an eye towards rescinding them in the near future.  As of this writing, the President’s nominee is still in the Senate confirmation process, so presumably the Memorandum is directed to the Acting Secretary of HUD.

As background, in 2020 under the prior Administration, HUD issued two controversial rules under the Fair Housing Act.  The first rule repealed the “affirmatively furthering fair housing,” or “AFFH Rule,” which required governmental entities receiving federal housing funds to examine patterns of housing discrimination in their jurisdictions and work to curtail them.  The second rule from the previous Administration amended standards under the Fair Housing Act for determination of disparate impact (the “Disparate Impact Rule”).  This second rule has been stayed by preliminary injunctions in several suits challenging its compliance with the federal Administrative Procedure Act.

The Memorandum directs the Secretary to examine the effects of the AFFH Rule and Disparate Impact Rule in light of HUD’s statutory duty to enforce the Fair Housing Act.  Based on the results of that examination, the Memorandum further direct the Secretary to “take any necessary steps'' to implement requirements for HUD to administer the Fair Housing Act “in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the [Fair Housing Act,] including by preventing practices with an unjustified discriminatory effect.”

Stay tuned for future regulatory action that will certainly come from HUD after it acts on this Memorandum.

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In this blog post concerning legal and regulatory matters of interest to the mortgage industry, Sandler Law Group (SLG) provides general information and industry observations that are not motivated by or concerned with a particular past occurrence or event, or a specific existing legal problem of which SLG is aware. Nothing published herein is intended to constitute legal advice and the use of the blog post by a reader shall not give rise to an attorney-client relationship with SLG. SLG expressly disclaims any representation of accuracy or reliability as to the content of this blog post, as well as any obligation to maintain such content over time or to ensure it is free from errors. Brad Cope is the attorney responsible for the SLG content of this blog post. Unless otherwise noted, the attorneys of SLG are not certified by the Texas Board of Legal Specialization.

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