A little housing policy inside baseball today. Those of us in the multifamily housing space are waiting for our friends at HUD to act on two matters of interest:
First, as previously noted, HUD issued an advance notice of proposed rulemaking back in June 2018, seeking public comment on whether its 2013 disparate impact rule should be changed in light of the 2015 Inclusive Communities decision issued by the U.S. Supreme Court. In English, the belief is that the Trump Administration will indeed attempt to modify/rescind/alter the disparate impact rule enacted by the Obama Administration five years ago. Based on an order issued by a federal judge last month in a case challenging the Obama-era disparate impact rule, there is a belief that HUD’s new rule will be published on or before December 18, 2018. I will, of course, be following along as to the progress of the underlying litigation as well as what HUD decides.
Also, I have heard from a handful of HUD (and other fair housing officials) that the Department is “working on” new guidance related to assistance animals. As anyone involved in rental housing is aware, the number of emotional support animal reasonable accommodation requests continues to increase significantly, along with the percentage of those accommodation requests that are medically verified by an online health care provider. Again, we want to get it right. We want to approve legitimate assistance animals needed by residents who are truly disabled. We do not, however, want to approve an animal that was “verified” or “registered” pursuant to a certificate purchased over the internet for the low, low price of $69.99 (or $125 if you need it overnight) in an effort to avoid pet fees. The belief in the industry is that HUD is preparing guidance. I don’t have an expected release date, but you will know as soon as I see it.
My point on both of these issues is that the professional apartment industry just wants to confirm the rules of the road. If disparate impact is indeed covered under the law, so be it. I am happy to provide that advice. If HUD confirms that management is permitted to seek supplemental information from an applicant after receipt of what looks like a medical verification purchased with a credit card and doing so does not run afoul of the Fair Housing Act, all the better. And we will continue to proceed on that basis. But uncertainty is not helpful. For anyone.
Just A Thought.