The Washington Report

On September 16th and 17th, the U.S. Department of Housing and Urban Development (HUD) circulated two memoranda outlining the new goals and priorities of the Office of Fair Housing and Equal Opportunity (FHEO) respecting fair housing enforcement. Both HUD memoranda are internal documents directed to HUD FHEO staff. Each removes prior HUD opinions and guidance on the meaning of the Fair Housing Act. These prior materials and guidance deal with such topics as: appraisal discrimination; protections for persons with Limited English Proficiency; reasonable accommodations for disabled persons’ use of assistance animals; and municipal land-use practices.

The September 16th memorandum (“Fair Housing Act Enforcement and Prioritization of Resources”) explains the current Administration’s views on prior positions. For example, the memo asserts that the FHA protects everyone equally (i.e., “protected classes” are not limited to minority groups), so that, for example, HUD investigations of appraisal and financial discrimination claims should not consider whether the complained of practices occurred in or harmed a “protected-class concentrated area.”

The September 16th memo also makes clear that the HUD will not use the disparate-impact theory of liability. Rather, FHEO staff must prioritize resources for cases with strong evidence of intentional discrimination against a “bona fide purchaser or renter,” suggesting that cases brought by fair housing organizations and/or testers are also not to be pursued. Additionally, the September 16 memo requires that, before a conciliation or charge is issued by FHEO, a detailed “priority memorandum” must be provided to the political leadership at headquarters for approval.

The September 17th memorandum (“Notice of the Withdrawal of FHEO Guidance Documents”) lists additional guidance FHEO has determined should not be enforced or  otherwise relied upon by HUD. This includes Executive Order 13988 which drew on the Supreme Court’s Bostock decision to mandate that all federal agencies interpret prohibitions on sex discrimination in federal laws to include discrimination based on sexual orientation and gender identity. FHEO’s legal interpretation on the permissibility of special purposes credit programs under the Fair Housing Act has also been withdrawn.

State and local enforcement and private litigation, however, are unlikely to be significantly affected by these new HUD positions. Since the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, courts determining the meaning of statutory provisions no longer give great deference to agency interpretations, but rather follow those interpretations only to extent they are persuasive, consistent over time, and have sound reasoning.

On October 9, the United States Senate passed the bipartisan Renewing Opportunity in the American Dream to Housing Act of 2025 (ROAD to Housing Act) as part of its version of the National Defense Authorization Act (NDAA).

The legislation represents a comprehensive federal response to housing challenges, targeting barriers that have made it increasingly difficult for families to achieve homeownership. With housing costs consuming an ever-larger share of family budgets nationwide, the bill offers a multi-pronged approach to increasing supply, reducing barriers to development, and creating new pathways to homeownership.

The ROAD to Housing Act includes provisions designed to meet America's diverse housing needs:

• Building More Homes and Cutting Red Tape: Helps communities overcome zoning and other barriers, streamlines environmental reviews for housing projects, and creates grants for communities that build more homes.
• Opening Doors to Homeownership: Removes barriers that make it harder to get smaller mortgages, improves the home appraisal process, helps families save for homes, and ensures veterans know about their home loan benefits.
• Supporting Housing Innovation: Updates rules and financing for manufactured and modular homes and encourages new building technologies that make housing more affordable.
• Helping Communities Recover from Disasters: Permanently authorizes disaster recovery efforts to help communities rebuild while incorporating resilience measures to reduce repetitive losses and maintain insurability.

Introduced by Senate Banking Committee Chair Tim Scott and Ranking Member Elizabeth Warren, the ROAD to Housing Act was previously passed unanimously by the Senate Committee on Banking, Housing, and Urban Affairs. Senators Scott and Warren offered an amendment to include the bill in the NDAA.

"NAR applauds the Senate for passing this bipartisan legislation that addresses housing supply, affordability and homeownership pathways," says Shannon McGahn, executive vice president and chief advocacy officer for NAR. "At a time when homeownership increasingly feels out of reach, this legislation offers meaningful, pragmatic solutions to restore opportunity for millions of American families. We commend Chair Senator Tim Scott and Ranking Member Elizabeth Warren for their bipartisan leadership on this critical issue. We look forward to working with Congress and the administration to enact this vital legislation and help preserve the American dream of homeownership for future generations."

NAR previously sent a letter of strong support for the bill to Committee Chair Tim Scott and Ranking Member Elizabeth Warren.

The NDAA now advances to the House, where differences between the House and Senate versions will be resolved.