September was a busy month for the U.S. Department of Housing and Urban Development (HUD), as HUD issued two guidance documents relevant to enforcement of the Fair Housing Act. While it is too early to determine all the implications for homeowners associations (HOAs), HOAs are subject to the Fair Housing Act and should therefore be aware of the content of these documents and stay up to date on the resulting impacts. We will write additional articles addressing certain effects of these new guidance documents with more specificity but first wanted to provide this brief overview of the guidance documents as their issuance is newsworthy for entities subject to the Fair Housing Act, to include HOAs.
The September 16, 2025 guidance document, titled “Fair Housing Act Enforcement and Prioritization of Resources,” in HUD’s words “outlines the Office of Fair Housing and Equal Opportunity’s (FHEO) role under the United States Constitution and Fair Housing Act; explains why FHEO must prioritize resources for cases with strong evidence of intentional discrimination; and articulates how future enforcement efforts will proceed.”[1] In short, the document sets forth HUD’s current position suggesting prior HUD guidance documents were leveraged in an ideological manner rather than a manner consistent with federal law and calls for resources to be redirected to cases with the strongest evidence of intentional discrimination. It also lists numerous materials to be removed from FHEO’s “Guidance Repository” and should no longer be used for intake, investigations, cause determinations, or any other official purpose. While this new guidance document does indicate a noteworthy shift in the prioritization of enforcement efforts, it does not alter that fact that HOAs must still act prudently not to run afoul of the Fair Housing Act and refrain from participating in discrimination to avoid liability.
The September 17, 2025 guidance document titled “Notice of the Withdrawal of FHEO Guidance Documents,” informs the public and the Department’s stakeholders of the withdrawal of various prior guidance documents, some of which are very relevant to HOAs.[2] This document sets forth some background regarding the nature of “guidance statements,” explaining that they do not carry the force of the law but rather may include “interpretive rules, which advise the public of an agency’s interpretation of the statutes and regulations it administers; and general statements of policy, which advise the public about an agency’s intended use of its discretionary authority.” This document also lists the prior guidance materials withdrawn. We expect that at least a few on the list which might immediately catch the eyes of HOA boards include the April 25, 2013 “FHEO Notice 2013-01: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-funded Programs”, the January 28, 2020 “FHEO 2020-01: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.”, as well as prior guidance regarding criminal records. While we recommend HOA boards review this new Notice of the Withdrawal of FHEO Guidance Documents in its entirety, the withdrawal of the two animal-related documents justifies its own article in the future. It is worth noting that these withdrawals are not necessarily final, but the guidance document does provide that the withdrawn documents shall not be relied upon while review of the withdrawn documents is ongoing.
Again, while these new guidance documents are noteworthy, nothing therein changes the fact that HOAs must be careful to avoid engaging in discriminatory conduct or otherwise violating the Fair Housing Act, lest they incur liability.
These new guidance documents do not mean that challenges to HOA actions under the Fair Housing Act will not occur, even if the conduct challenged is not of the type which these guidance documents call to be prioritized. Moreover, nothing in the new guidance documents changes the fact that HOAs are subject to their own state-specific fair housing statutes. That said, the guidance documents do indicate an interesting shift in priorities and interpretations by HUD, the practical impacts of which are to be determined. If your HOA is presented with a potential fair housing or discrimination issue, it is prudent to consult with counsel.
This article is not intended to be an exhaustive discussion of applicable law regarding the Fair Housing Act, recent guidance documents, nor any guarantee of the outcome of any litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding this topic. Please contact us at 803.724.5000 for further information.
Suzannah Hayes
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
[1] https://www.hud.gov/helping-americans/fair-housing-act-overview#Enforcement
[2] Id.