Less guidance, same law

For nearly six decades, the Fair Housing Act has served as a cornerstone of U.S. housing policy, making it illegal to discriminate against renters based on race, color, religion, sex, or national origin. While the statute itself remains intact, federal enforcement priorities—and the guidance property managers have long relied on—may be less defined.

Recent actions by the U.S. Department of Housing and Urban Development (HUD), including revisions to disparate impact standards and the rescission of multiple Fair Housing and Equal Opportunity guidance documents, have raised a pressing question across the industry: What, if anything, should managers do differently now?

Eileen Wirth, CPM^®

Across the industry, awareness of HUD’s shifts is uneven, clarity remains elusive, and few experts recommend immediate policy changes. Instead, the conversations point to a more practical throughline—why consistency, documentation, and state and local law matter more than ever, even as federal guidance grows quieter. This article explores where the real risks remain, how enforcement may continue outside HUD, and why “wait and see” does not mean “do nothing.”

“I think those who manage affordable housing may be more aware of the changes,” says Eileen Wirth, CPM^®, of MEND, Inc., in Moorestown, New Jersey. “Many of us sign up for HUD alerts, but those managing conventional apartments may not be aware that these updates are available to them.”

While large firms and managers with legal support tend to stay informed, smaller operators may not see federal guidance changes until confusion or risk forces the issue.

Awareness without clarity

Leslie Tucker

Leslie Tucker, a partner at Williams Edelstein Tucker, P.C. and a leader at The Fair Housing Institute, says industry associations are working to keep members informed—but information alone does not equal clarity.

“I think industry associations are doing their best to keep their members updated on HUD updates, regulation changes, and new notices that are being published,” she says. “However, those companies who are not involved in associations or who don’t subscribe to other resources may not be as informed as they should be.”

Even among well-informed companies, Tucker sees persistent uncertainty about what the rescission of guidance actually means in practice. “Many of my clients are still very confused as to what the administration’s position shift means for them,” she says.

That confusion is not necessarily prompting immediate policy changes. In fact, experts consistently caution against abrupt shifts in screening, accommodation, or marketing practices simply because HUD has stepped back from certain forms of guidance.

To change—or not to change

Despite HUD’s shift away from prioritizing disparate-impact enforcement, property managers do not need to consider wholesale revisions to compliance programs.

Billy Cannon

“So far, I have not recommended policy changes related to disparate impact, criminal history screening, assistance animals, or LEP policies,” Tucker says. “Nothing that HUD has published has mandated such changes.”

She emphasizes that HUD’s deprioritization does not eliminate disparate impact liability. “There is still very much a basis to bring a fair housing claim,” she says, noting that such cases are actively investigated outside of HUD by Fair Housing Assistance Program (FHAP) agencies and pursued through private litigation.

Billy Cannon, managing principal at Offit Kurman, shares a similar view. “There should not be any drastic changes needed in light of HUD’s shift,” he says. While some managers may feel they have more flexibility in certain jurisdictions, Cannon stresses that any changes must be tempered by state and local fair housing laws and regulations.

From an operational standpoint, the consensus is clear: The absence of federal guidance does not equate to the absence of risk.

State law still sets the floor

For managers operating in states with robust fair housing laws, HUD’s retrenchment may have little practical effect.

Ted Thurn

When asked whether she has observed operational impacts from the withdrawal of HUD guidance, Wirth says: “In New Jersey, no.” She points to the state’s Fair Chance in Housing Act, which governs criminal screening and applies to all rental housing. “Resident screening must follow these guidelines,” she explains, regardless of federal enforcement shifts.

Cannon reinforces this point, noting that state and local jurisdictions may continue enforcement consistent with the retracted guidance. “They may view it as a way to serve as an important bulwark in defending the Fair Housing Act,” he says.

For Ted Thurn, IREM’s senior director of government affairs, this layered regulatory environment makes consistency more important, not less. “Just because the federal government is going through a shift in fair housing enforcement doesn’t mean it’s abandoned,” Thurn says. “There’s still also state and local, and they should still be compliant.”

The void left behind

While experts advise against immediate policy changes, they also acknowledge that the rescission of guidance has created a vacuum—particularly around assistance animals, marketing practices, and LEP protections.

“Rescission of assistance animal and marketing guidance has left a void,” Tucker says. “Managers are unsure how to proceed.” In the absence of replacement guidance, she recommends maintaining existing policies. “There is simply no basis for making changes at this point.”

Thurn describes the situation as a gray area. HUD may have withdrawn guidance on LEP protections, he notes, but “underlying civil rights law, including protections against national origin discrimination, still applies.”

That gray area can be especially challenging for smaller operators. Thurn estimates that roughly “80% of owners and operators are mom-and-pop operations,” many without in-house legal counsel.

Training in an era of uncertainty

If policies are not changing, will training? Here again, the answer is nuanced. Cannon says his firm is not changing how it trains property managers. “The Fair Housing Act remains in place,” he says, adding that enforcement priorities may not last beyond the current administration.

Tucker agrees that training should not shift simply because HUD’s focus has changed. “Disparate impact cases will not stop,” she says. “They will just be brought in forums outside of the HUD complaint process.”

Thurn, however, sees the potential for a subtle pivot. With HUD emphasizing intentional discrimination, training may focus more heavily on decision-making processes, documentation, and consistency. “Training could pivot toward intent, consistency, and documentation,” he says, with scenario-based learning playing a larger role.

What hasn’t changed

Across all four interviews, one refrain is constant: The Fair Housing Act itself remains intact.

“A common thread is that legal obligations under fair housing haven’t really changed,” Thurn says. “What’s changed is the availability of HUD’s interpretive guidance.”

Cannon echoes that sentiment, reminding managers that obligations related to reasonable accommodations and nondiscrimination “remain in place.”

For Wirth, professional ethics fill some of the gap left by federal guidance. As an IREM member, she points to the organization’s Code of Ethics—particularly its provisions on compliance, equal opportunity, and duty to tenants. “Treating everyone fairly and consistently is important,” she says.

Consistency as the safest path forward

In an environment marked by uncertainty and unpredictability, documentation and uniform application of policy emerge as the strongest defenses.

“With those benchmarks removed, property managers should take this time to reassess and confirm that their policies are grounded in enforceable law,” Cannon advises. He stresses that consistency and documentation “should remain among the strongest defenses to discrimination claims.”

Thurn’s advice is even more direct: “Call your attorney. Make sure you’re following your internal policies, you’re documenting, you’re communicating clearly.”

Until clearer federal guidance emerges—or enforcement priorities shift again—property managers are left to navigate fair housing compliance with fewer signposts. What remains, however, is a shared understanding across the industry: Fair housing obligations endure, even when the guidance does not.