HUD Housing Programs: Tenants’ Rights (The Green Book): 13.5.3.6 Families with Children
The FHA states that housing providers cannot discriminate on the basis of familial status.
The FHA states that housing providers cannot discriminate on the basis of familial status.
The FHA prohibits housing providers from discriminating against individuals simply because they are immigrants.483 Thus, individuals cannot be subjected to more demanding standards because of their national origin or perceived immigration status.
Given the longstanding inequities in our criminal justice system, housing policies that take adverse actions against individuals with criminal backgrounds can have fair housing implications for members of protected classes who are denied or excluded from housing. Such policies may include blanket bans on admission for any person with a conviction or an arrest, or the application of “one strike” policies.495
The FHA does not designate voucher holders, or source of income generally, as a protected class. Despite the fact that the FHA does not have explicit protections for voucher households, fair housing issues may arise in the context of the Voucher program to the extent that the program serves members of protected classes, including racial and ethnic minorities, families with children, and persons with disabilities.
The following section discusses fair housing issues advocates may encounter in their practice, such as the duty to affirmatively further fair housing, harassment, and nuisance and crime-free ordinances and policies.
The duty to affirmatively further fair housing refers to the obligation to promote desegregation proactively—an obligation that requires more than just merely prohibiting discrimination.548 The text of the FHA imposes an obligation on the HUD Secretary to affirmatively further fair housing (AFFH).549 In fact, the FHA requires all federal agencies and executive departments to affirmatively further fair housing, and to cooperate with the HUD Secretary to accomplish this objective.
In 2015, HUD issued its final AFFH rule (AFFH Rule),578 which has since been repealed through subsequent rulemaking in 2020, as discussed infra. The AFFH Rule created a new fair housing planning framework called the Assessment of Fair Housing (AFH).
Municipalities nationwide have enacted nuisance property ordinances or “crime-free housing” programs that penalize tenants and landlords based on occurrences such as calls to 911, instances of alleged criminal activity, or noise.593 Such laws and programs often impose penalties – such as fines, fees, threatened condemnation, or even loss of a rental prope
The FHA protects tenants from harassing conduct to the extent that the harassment is based upon one’s membership in a protected class.
The text of the FHA permits “aggrieved persons” to seek relief under the statute. An “aggrieved person” includes any person (as defined by the statute) who: (1) claims injury as the result of a “discriminatory housing practice”; or (2) who believes that person will be injured as a result of a “discriminatory housing practice that is about to occur.”641
Members of protected classes who experience housing discrimination can assert the FHA as an affirmative defense. Individuals who have been discriminated against may assert fair housing rights as a defense to termination during administrative proceedings—including informal hearings for Section 8 participants and grievance procedures for public housing residents. Additionally, if a housing provider has pursued an eviction action in court, that individual can assert the FHA as an affirmative defense to the eviction, or move for summary judgment on the basis of FHA rights.
Aggrieved persons can file a housing discrimination complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO). Information about filing a fair housing complaint can be found on HUD’s website.646
An “aggrieved person” under the FHA can also elect to pursue FHA claims in state or federal court.658 There is no requirement that an aggrieved person exhaust administrative remedies before seeking a judicial remedy.659 However, a complainant is not barred from pursuing judicial remedies simply because an administrative complaint has been filed, except: (1) when an administrative law judge has already begun a hearing related to the same allegations,660
This chapter covers the rules for establishing rent for the major HUD-subsidized and assisted programs, including public housing, Section 8 Project-Based housing, Housing Choice Vouchers, Section 236 properties, and Section 221(d)(3) Below Market Interest Rate (BMIR) properties.1 Appendix 4A, located at the end of the chapter, provides a quick overview of the basic rules.
For public housing and all types of Section 8, the United States Housing Act and regulations list specific kinds of payments that are excluded from annual income for rent-setting purposes. Other HUD rental programs also exclude certain items from annual income, as determined by HUD.344 These exclusions cover a wide variety of income, including that of minors and students, foster care, live-in aides, scholarship funds for resident household members, and certain lump-sums.
A HUD regulation excludes student financial assistance from income for some HUD programs.356 However, since 2006 Congress and HUD have established a rather large exception to that general rule for tenants receiving Section 8, whether through Vouchers or project-based assistance.
Congress and HUD have established rules that include deductions or exclusions for certain earned income.
Previously Unemployed Household Members.
HUD’s FAQs deal with a number of questions regarding the relationship between the pre-1999 EID and the current public housing EID.411 The most important point is that a tenant’s receipt of benefits under EID program in effect prior to October 1, 1999 does not preclude receipt of EID benefits under the current program.412 Moreover, receipt of the former 18-month EID does not count against the four-year limit imposed by the current rules.413
A household member receiving the EID cannot use the disregarded income in calculating the limitation for the child care expense deduction.414 The child care expense deduction is capped at the amount of earned income that the PHA actually includes in the annual income determination.415 Thus, for example, a single head of household who is the sole wage-earner and whose only earned income is fully disregarded for the first 12 months of employment may not be able to deduct any child care expense
PHAs may offer public housing tenants the alternative of paying the full rent otherwise due and having the PHA deposit the rent overage in an individual savings account (ISA).417 The statute and regulations provide that amounts deposited in ISAs may be withdrawn only for the purpose of purchasing a home, paying education costs of family members, moving out of public or assisted housing, or paying any other expense authorized by the PHA for the purpose of promoting the economic self-sufficiency of residents of public housing.
After determining annual income, owners and PHAs apply certain additional deductions to arrive at adjusted annual income. Either the annual income or the adjusted income may then be used to determine the tenant’s rent for the programs using income-based rents.422 For Section 221(d)(3) BMIR tenants without additional rental assistance who pay a budget-based rent, or for unassisted LIHTC tenants who pay a formula rent, the concept of adjusted income is inapplicable.423
Federal statute and regulations establish certain mandatory deductions.
PHAs may also adopt optional additional deductions from income in determining the rents of public housing tenants.452 Such policies must be in writing453 and must be included in the PHA Annual Plan.454 The statute provides numerous examples of such deductions, including: excessive travel expenses for employment or education-related travel (not to exceed $25 per family per week); disregards of all earned income, or amounts earned by particular