UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY

U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED

RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING

ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U

TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS

U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING

U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME

PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR

HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN

HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY

FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING

OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U

AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND

ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING

THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING

FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U

UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY

U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED

RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING

ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U

TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS

U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING

U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME

PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR

HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN

HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY

FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING

OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U

AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND

ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING

THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING

FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U

UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY

U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED

RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING

Fair Housing for 

HOME Participants

U.S. Department of Housing and Urban Development Office of Community Planning and Development
1

Understanding

the Basics

Fair Housing for HOME Program Participants

Understanding

the Basics

“Fair Housing for HOME Program Participants: Understanding the Basics,” describes the Federal fair housing laws and regulations that apply

to HOME participating jurisdictions (PJs), with an emphasis on those requirements that prohibit discrimination in housing based on a person’s

race, color, religion, sex, familial status, national origin, age, or disability. This overview includes a discussion of the Fair Housing Act, which

applies to housing and housing related programs regardless of whether or not they receive Federal financial assistance, and a discussion of the

Federal civil rights laws which apply only to recipients of Federal financial assistance, including HOME PJs.

This publication is the first in the series “Fair Housing for HOME Program Participants.” The purpose of the series is to provide technical assistance to HOME PJs and their housing partners on the fair housing laws and regulations that apply to HOME Program activities. Specifically,

this series reviews the applicable Federal fair housing requirements, illustrates best practices in promoting fair housing, and highlights PJ responsibilities for ensuring compliance with fair housing requirements. For purposes of this publication, the PJ’s “housing partners” include all persons

and entities who use HOME Program funds, including, but not limited to, the PJ and its recipients, state recipients, contractors, subcontractors,

developers (including community housing development organizations), owners, and management agents. Unless otherwise specified, the fair housing

requirements extend to the PJ and all its housing partners. 

Relevant Federal Fair Housing

Requirements

Fair housing protections are guaranteed and regulated

through a myriad of Federal, state, and local statutes, ordinances, regulations, guidelines, and executive orders. Yet, in

spite of the complexity of the legal constructs established to

guarantee the right to fair housing, this right itself is quite

simple to understand and to implement: No person shall be

subjected to discrimination because of race, color, religion, sex,

disability, familial status, age, or national origin.1

Title VI of the Civil Rights Act of 1964

One of the first civil rights laws applicable to recipients of U.S.

Department of Housing and Urban Development (HUD)

funding was Title VI of the Civil Rights Act of 1964. It

prohibits discrimination on the basis of race, color, and

national origin in all Federally assisted programs. As

recipients of HOME Program funding, PJs and their housing

partners are subject to this landmark legislation, and

subsequent civil rights legislation that expanded its coverage

and remedies.2 Title VI provides broad discretion to HUD to

impose record-keeping and reporting requirements to

effectuate its nondiscrimination mandate, and to terminate or

suspend funding to recipients for failure to comply with Title

VI requirements. 

Fair Housing Act

The most commonly known of the fair housing laws is the

Federal Fair Housing Act, or Title VIII of the Civil Rights Act

of 1968. This Act, amended in 1988, prohibits discrimination

against certain classes of people (“protected classes”). The

1 The Fair Housing Act’s implementing regulation at 24 CFR Part 100 uses the term “handicap” when referring to persons with disabilities. 

This publication will use the term “persons with disabilities” to refer to this protected class and the word “disability” to refer to “handicap.”

2 Recent HUD guidance interprets Title VI to include the possibility that recipients may, depending on circumstances, be required to provide

language assistance to persons who, as a result of their national origin, are limited in their English proficiency in order to improve access to

their programs and activities. For more information on this issue, see the proposed guidance, “Guidance to Federal Financial Assistance

Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” published in

the Federal Register on December 19, 2003 (Volume 68, Number 244). This is available online at HUD’s Office of Fair Housing and Equal

Opportunity website at www.hud.gov/offices/fheo/library/lepFRguidance1.pdf.
Fair Housing for HOME Program Participants

2

protected classes are: race, color, religion, sex, national origin,

disability, and familial status.3 The Act and its implementing

regulations at 24 CFR Part 100 define who is protected, what

type of housing is covered by the law, and what types of

actions constitute illegal discrimination. The requirements of

the Fair Housing Act apply to housing regardless of whether

or not it is developed or otherwise assisted with Federal funds.

Although the Fair Housing Act generally requires applicants

and residents to be given equal treatment irrespective of membership in a protected class,

there are certain circumstances when the Act

may require a housing provider to treat

persons with disabilities differently, to

enable them to have equal access

to or enjoyment of housing and other housing

related programs. For example, the Fair

Housing Act directs housing providers to

provide “reasonable accommodations” to persons with disabilities. This means a housing

provider may have to change its rules, policies, or procedures to allow persons with disabilities equal access to housing. In addition,

the Fair Housing Act contains minimal accessibility requirements that apply to the design

and construction of new multifamily housing built for first

occupancy after March 13, 1991. These accessibility requirements are explained in detail in the companion publication of

this series, Fair Housing for HOME Program Participants:

Promoting Fair and Accessible Housing Opportunities in HOME

Projects. 

Redress for victims of housing discrimination has been more

meaningful and more consistent since the passage of the 1988

Amendments to the Fair Housing Act. These amendments

significantly raise the consequences for violating the law by

removing limits on the recovery of damages and permitting

the recovery of attorney’s fees. As a result, damages and settlements have increased substantially, and in some cases have

reached tens of thousands of dollars. Currently, under the law,

a complainant or HUD itself can file a discrimination complaint. An aggrieved person has up to one year after an

alleged discriminatory housing incident to file a complaint.

Section 808(e)(5) of the Fair Housing Act further requires

HUD to “administer [its] programs and activities in a manner

affirmatively to further the policies of [the Fair Housing Act].”

HUD imposes this requirement on recipients of its funds,

including HOME Program PJs. In addition to prohibiting

discrimination in HOME-funded housing, PJs must analyze

impediments to fair housing in their jurisdictions, and take

action to address these impediments. PJs must certify that

they will affirmatively further fair housing in their

Consolidated Plans in accordance with 24 CFR

91.225, 91.325, and 91.425 for local governments, states, and consortia, respectively.

The companion guide in this series, Fair

Housing for HOME Program

Participants: Affirmatively

Furthering Fair Housing, explores these issues

and requirements in detail.

Section 504 of the Rehabilitation

Act of 1973

Section 504 prohibits discrimination based

upon disability in all programs or activities

operated by recipients of Federal financial

assistance, including HOME PJs and their

housing partners. This coverage extends to all aspects of program administration and implementation by PJs, as well as

the actual housing programs that receive HOME funds.

Section 504 and its implementing regulations at 24 CFR Part

8 obligate recipients to make their programs accessible to persons with disabilities, including:

• Providing a policy, practice, or rule modification, or an

accessible feature in a unit or common area, if needed as

an accommodation by an applicant or tenant with a disability, unless doing so would result in a fundamental

alteration in the nature of its program or an undue

financial and administrative burden.4

• Providing auxiliary aids and services necessary for communication with persons with disabilities;

• Operating housing that is not segregated based upon

disability or type of disability unless authorized by

Federal statute or executive order or unless necessary to

provide as effective housing, aid, benefit, or services as

those provided to others;5 and

3 “Familial status” is defined in the section “Discriminatory Housing Practices and Prohibited Actions” on page 3 of this publication.

4 See 24 CFR 8.4, 8.20, 8.24, and 8.33 for further requirements and guidance.

5 See 24 CFR 8.4(b)(i)(iv), and 8.4(c)(1).

No person shall

be subjected to

discrimination

because of race,

color, religion, sex,

disability, familial

status, age, or

national origin.
Understanding the Basics

3

• Performing a self-evaluation of their programs and policies to ensure that they do not discriminate based on

disability. 

In addition, Section 504 regulations establish physical

accessibility requirements when Federal financial assistance is

used for new construction or rehabilitation of housing. The

regulations require a minimum percentage of accessible units.

In order for a unit to be considered accessible under Section

504, it must meet the requirements of the Uniform Federal

Accessibility Standards (UFAS). The Section 504 accessibility

requirements for HOME PJs are in addition to the

requirements imposed by the Fair Housing Act for newly

constructed multifamily housing. See the companion

publication in this series, Fair Housing for the HOME Program

Participant: Promoting Fair and Accessible Housing Opportunities in

HOME Projects, for more information housing accessibility.

Americans with Disabilities Act (ADA)

Title II of the Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities in all

programs, activities, and services of a public entity (i.e., state

or local government; or department, agency, special purpose

district, or other instrumentality of a state, or states, or local

government). The prohibitions against discrimination under

Title II of the ADA are essentially the same as those in Section

504, except they apply to all programs, activities, and services

of a public entity, not just those funded with Federal financial

assistance.

Title III of the ADA prohibits discrimination on the basis of

disability in public accommodations and commercial facilities.

These do not include housing, but do include the rental office

or a facility (such as child care) located in the housing project

that is open to the public. Note that HOME funds can be

used for the development costs of the rental office, but not for

costs of public facilities. 

For more information about ADA and its requirements, see

the Department of Justice website at www.usdoj.gov/crt/

ada/adahom1.htm.

Age Discrimination Act of 1975

This Act prohibits discrimination based upon age in Federally

assisted and funded programs or activities in limited

circumstances. It is not a violation of the Act to use age

distinctions if such distinctions are permitted by statute for

particular programs or if they are a factor necessary for the

normal operation of the program or the achievement of a

statutory objective of the program or activity. Thus, it is not a

violation of the Act for a HOME PJ or its housing partner(s)

to operate elderly-only housing since the HOME statute

permits such housing. 

State and Local Fair Housing Requirements

In addition to Federal legislation, many states and localities

have enacted fair housing legislation. PJs and their housing

partners should become familiar with their own state and local

fair housing laws, in addition to the Federal requirements. PJs

can identify state and local resources through the National

Fair Housing Advocate Online website at

www.fairhousing.com. In addition, on an annual basis, HUD

prepares a list of all state and local jurisdictions whose fair

housing laws are substantially equivalent to the Federal laws.

This list is available from the HUD field offices.

Discriminatory Housing

Practices and Prohibited

Actions

PJs are responsible for ensuring that all housing assisted with

HOME funds is made available on a nondiscriminatory basis,

without regard to race, color, religion, sex, age, national origin, disability, or familial status. 

Protected Classes

All participants in the HOME Program should become familiar with the protected classes under Federal, state, and local

law. While most of these classes are self-explanatory, the definitions for two of the Federal protected classes, familial status

and persons with disabilities, are defined with some specificity

in the law.

Familial Status

In accordance with the Fair Housing Act, a family with children is a household that includes “one or more individuals

who have not attained the age of 18 years domiciled with (a) a

parent or another person having legal custody of such individual or individuals; or (b) the designee of such parent or other

person having such custody, with the written permission of

such parent or other person.” The protections on the basis of

familial status also apply to any person who is pregnant, or is

in the process of securing legal custody of any individual who
Fair Housing for HOME Program Participants

4

6 See 24 CFR 100.20.

7 See 24 CFR 100.201.

8 See 24 CFR 100.202(d).

9 While the specific practices described in this section are based on the Fair Housing Act, note that these unlawful practices, in general, are also

prohibited under the requirements of Title VI of the Civil Rights Act of 1964.

has not attained the age of 18 years.6 Discrimination against

families with children is prohibited, regardless of the ages of

the children, or the number of children in a household. Note,

familial status is defined in terms of the presence or expected

presence of children, and does not include marital status or

sexual orientation. 

Notwithstanding the prohibition against discrimination on the

basis of familial status, state and local governments do have

the right to apply reasonable restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

In general, absent special circumstances, HUD believes that a

maximum of two persons in a bedroom is a reasonable occupancy standard. Bedroom size, unit size, age of children, and

other circumstances might affect the reasonableness of a two

person per bedroom occupancy rule. The following examples

illustrate these circumstances:

• In a unit that has two very large bedrooms, and ample

living space, it might be unreasonable to deny the unit

to five persons;

• It might be reasonable to deny a one-bedroom unit to a

couple with a teenage child; however, it might be unreasonable to deny the same unit to a couple with an infant

child;

• An occupancy policy that limits the number of children

per unit is less likely to be reasonable than one that

limits the number of persons per unit.

For a detailed discussion on establishing lawful occupancy

standards, see “Fair Housing Enforcement—Occupancy

Standards Notice of Statement of Policy,” published in the

Federal Register on December 18, 1998, Volume 63, Number 243.

Persons with Disabilities

Both the Fair Housing Act and Section 504 define a person

with a disability as one who: (1) has a physical or mental

impairment which substantially limits one or more major life

activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. This does not include current, illegal drug users. Persons with drug addiction, other

than addiction caused by current, illegal use of a controlled

substance or alcohol, are considered to have a disability.7 In

other words, it may be lawful to discriminate against current

drug abusers, but may not be lawful to discriminate against

recovering drug abusers. Note, the Fair Housing Act does not

require that a dwelling be made available to “an individual

whose tenancy would constitute a direct threat to the health

or safety of other individuals or whose tenancy would result in

substantial physical damage to the property of others.”8

Persons with disabilities are protected against acts of discrimination in the same ways as other protected classes. In addition, they are entitled to equal access by the mitigation or

elimination of barriers in the built environment, or through

changes in policies, practices, or procedures so that they can

make effective use of their housing. These issues are explored

in detail in the Fair Housing for HOME Program Participants

series in the publications Promoting Fair and Accessible Housing

Opportunities in HOME Projects and Tenant-Based Rental

Assistance. 

Discriminatory Housing Practices Under the

Fair Housing Act9

In general, unlawful discrimination might include any action

in which an individual or class of individuals in a specific protected class is treated differently than others who are not in

that protected class, when the result of that action denies that

individual or class of individuals equal access to or benefit of a

housing opportunity. The provisions of nondiscrimination

reach far beyond the failure to rent or sell a housing unit

based on the protected class status of an applicant. The Fair

Housing Act prohibits discrimination in all types of housing

related transactions, including standard real estate transactions, lending, financing, appraising, insuring, and advertising.

There need not be an intent to discriminate; if an action, even

if neutral on its face, is discriminatory in effect and has a disparate impact on a protected class, it may be unlawful. The person or entity undertaking the action should conduct further

analysis to determine that the action is not unlawful.

Regardless of a person’s status as a member of a protected

class, however, the law does not exempt him or her from

meeting lawful requirements and conditions that might be

imposed in the operation of a housing program or facility.
Understanding the Basics

5

Discriminatory housing practices are prohibited in all

housing—both publicly- and privately-owned or developed

housing. HOME-assisted housing and all of its related

transactions must be provided in a nondiscriminatory manner.

HUD defines unlawful discriminatory actions at 24 CFR Part

100, including:

• Discrimination in the sale or rental of a dwelling;

• Discrimination in the terms and use of housing;

• Discriminatory conduct by members of the real estate

industry;

• Discriminatory advertising; and 

• Discrimination in residential real estate-related

transactions.

These unlawful discriminatory practices are

summarized as follows:

Discrimination in the sale or rental of a

dwelling

Discrimination in the sale or rental of a

dwelling includes any refusal to sell or rent a

dwelling based on the fact that the applicant

is a member of a protected class. This

includes: 

• Refusing to negotiate for the sale or

rental of a unit;

• Failing to accept or consider an offer; 

• Refusing to sell or rent a unit; 

• Failing to process an offer for sale/rental

of a unit;

• Imposing different sales or rental prices;

• Using different qualification procedures or criteria; and

• Evicting or using different eviction criteria.

Discrimination in the terms and use of the housing

Discrimination in the terms, conditions, or privileges of sale or

rental of a dwelling, or in the provision of services or facilities

in connection with the sale or rental includes:

• Using different lease provisions or terms of agreement of

sale, such as security deposits, down payment requirements, or closing requirements;

• Failing or delaying maintenance or repairs;

• Limiting use of privileges, services, or facilities; and

• Denying or limiting services in connection with sale or

rental of a unit because a person failed to provide sexual

favors.

Discriminatory conduct by members of the real estate

industry

It is unlawful for members of the real estate industry to try to

influence housing related decisions of owners and buyers based

on information or perceptions related to the residency of

members of the protected classes, such as:

• Providing inaccurate or untrue information about the

availability of dwellings for sale or rent to any person,

including testers, regardless of whether that person is

actually seeking a unit or not;

• Indicating through words or conduct that a unit is or is

not available for inspection, sale, or rent;

• Failing to process an offer for sale or rental of a unit;

• Representing that there are covenants, deeds, trusts,

or lease provisions that restrict the sale or rental

of a unit because of protected class, or enforcing such restrictions if they do exist; 

• Limiting information about available units for sale or rent;

• Restricting or attempting to restrict choice

in order to perpetuate segregated housing

patterns (steering) within a housing

development or a neighborhood. This

might involve withholding information,

exaggerating information, or

communicating assumptions about where

an applicant might be “comfortable;” 

• Making unavailable or denying a dwelling

through practices, including taking adverse

action against an employee who refuses to

participate in discriminatory treatment; 

• Employing codes and other devices to accept or reject

applicants and limit options;

• Denying or delaying processing of an application; and

• Refusing to provide municipal services or insurance.

Discriminatory advertisements, statements, and notices 

Owners must market available units in a nondiscriminatory

manner. It is unlawful to make, print, or publish, or cause to

be made, printed or published, any statement, notice, or

advertisement that indicates a preference, limitation, or

discrimination based on race, color, religion, sex, disability,

familial status, or national origin, or an intention to make

such a preference, limitation, or discrimination. This

prohibition applies to all printed or published notices and

statements, as well as any oral notices or statements. Written

notices include any documents used with respect to the sale or

The 

Fair Housing Act

prohibits

discrimination in all

types of housing

related transactions,

including standard

real estate

transactions, lending,

financing, appraising,

insuring, and

advertising.
Fair Housing for HOME Program Participants

6

rental of a dwelling unit, such as applications, flyers,

brochures, deeds, signs, banners, posters, or billboards. 

Actions prohibited by this requirement include, but are not

limited to, the following:

• Using words, phrases, photographs, illustrations, symbols, or forms that suggest that dwellings are available,

or not available, to certain people based on race, color,

religion, sex, disability, familial status, or national origin;

• Expressing to agents, brokers, employees, prospective

sellers or renters, or any other person(s) a preference for

or limitation on any purchaser or renter based on race,

color, religion, sex, disability, familial status, or national

origin;

• Selecting media or locations for advertising the sale or

rental of dwellings that are unlikely to attract inquiries

from particular segments of the housing market about

the availability of or occupancy at a property because of

race, color, religion, sex, disability, familial status, or

national origin; and

• Refusing to advertise for the sale or rental of units or

requiring different charges or terms for such advertising

because of race, color, religion, sex, disability, familial

status, or national origin.

Engaging in blockbusting practices 

It is unlawful to induce or attempt to induce a person to sell

or rent a dwelling by representations regarding the entry or

prospective entry into the neighborhood of members of a particular protected class, when motivated by profit (whether or

not this profit is realized). This includes:

• Engaging in activity that conveys that a neighborhood is

“changing;” and

• Encouraging a person(s) to sell or rent a dwelling

through assertions that the entry of persons from a

protected class into the neighborhood will result in

undesirable consequences to the neighborhood such as

the lowering of property values, increase in crime, or

decline in quality of the schools.

Discrimination in the provision of brokerage services

It is unlawful to deny access to, or membership or participation in, any real estate-related service, such as the Multiple

Listing Service (MLS). This includes:

• Setting different fees for access;

• Denying or limiting benefits to members;

• Imposing different standards or criteria for membership

in a real estate sales or rental organization; and

• Establishing geographic boundaries or office location or

residence requirements for access to or membership or

participation in MLS or other broker organization or

service.

Discrimination in residential real estate-related transactions

In addition to the prohibitions against discrimination in the

direct provision of housing, the Fair Housing Act specifically

prohibits discrimination in the provision of any housing related service, including:

• The making or purchasing of loans and providing of

financial assistance for the acquisition, rehabilitation,

construction, maintenance, or repair of a dwelling based

on an applicant’s protected class status; 

• Discriminating in terms or conditions of the provision of

loans secured by residential real estate; 

• The selling, brokering, or appraising of residential real

property in a discriminatory way; and

• For entities that are making loans or other financial

assistance related to the purchase, rental, construction,

or improvement of a dwelling, imposing different policies, practices, procedures, or qualification criteria on

applicants based on protected class status.

PJs must also be certain that its housing partners are following the same procedures and applying the same standards to

all applicants when determining creditworthiness. PJs who sell

their loans on the secondary mortgage market should be

aware that it is illegal to refuse to purchase a loan, or to set

different terms or conditions for purchasing a loan, based on

an individual’s membership in a protected class.

Retaliation and association

In addition to the forms of discriminatory behavior that are

specified under the law, the law also deems the following as

unlawful:

• It is illegal for anyone to threaten, coerce, intimidate or

interfere with anyone exercising a fair housing right or

assisting others who exercise that right; and

• It is illegal to discriminate against someone based on the

fact that they associate with someone who is a member

of a protected class, whether or not that person is a

member of a protected class him or herself.

Special Considerations

The Fair Housing Act covers most private, public, and publicly funded housing. All participants in the HOME Program

should be aware of the special circumstances and exceptions

outlined in this section. 
Understanding the Basics

7

Affirmative Marketing

Advertising and marketing must be conducted in a manner

that ensures equal access to housing opportunities generated

by the use of HOME Program funds. In addition to the

nondiscriminatory advertising guidelines that are imposed by

the Fair Housing Act for all housing providers, public and

private, the HOME Program imposes specific affirmative

marketing requirements, designed to ensure that all HOMEfunded developments are accessible to members of the

protected classes. Effective affirmative marketing procedures

specifically describe the steps that must be taken to advertise

to those tenants who are not likely to apply for the housing

without special outreach. Affirmative marketing may be part

of a larger, more general marketing strategy focused on

reaching all potential tenants.

Requirements

Every PJ and state recipient must adopt affirmative marketing

procedures and requirements for rental and homebuyer

projects containing five or more HOME-assisted

units. The affirmative marketing procedures

must be in place regardless of what specific

activity the HOME funds will finance—

acquisition, rehabilitation, and/or

new construction. The PJ’s

marketing procedures must consist of actions

to provide information and otherwise attract

eligible persons in the housing market area to

the available housing without regard to race,

color, national origin, sex, religion, familial

status, or disability. The affirmative

marketing procedures need not apply to

households with Housing Choice Vouchers or

with tenant-based rental assistance provided

with HOME funds. 

Elements of Affirmative Marketing

Procedures

PJs have an obligation to conduct their own outreach, specify

additional outreach that they will require of owners, and evaluate the impact and success of their affirmative marketing

program. The following elements of a PJ’s or state recipient’s

affirmative marketing procedures are specifically required by

the HOME rule:10

• A description of how the PJ informs, or plans to inform,

the public, owners, and potential tenants about Federal

fair housing laws and the PJ’s affirmative marketing

policy;

• The requirements and practices that each owner of

HOME-funded housing must adhere to in order to carry

out the PJ’s affirmative marketing procedures and

requirements; 

• A statement of procedures to be used by owners to

inform and solicit applications from persons in the housing market area who are not likely to apply for the

housing without special outreach;

• A list of what records the PJ will keep, and what records

the PJ will require owners to keep, regarding efforts

made to affirmatively market HOME-assisted units,

including the records required to assess the results of

these actions; and

• A description of how the PJ will annually assess the success of affirmative marketing action(s) and what corrective actions will be taken where affirmative marketing

requirements are not met.

Affirmative Marketing for Special Needs Housing

PJs may choose to invest HOME funds in a

project(s) that serves targeted populations,

in order to meet the special housing

needs of certain groups of residents, such as persons with disabilities, large

families, the elderly, farm workers, or participants in self-sufficiency programs. Using

HOME funds to provide special needs housing is eligible when the PJ has specifically

articulated its plans to develop special needs

housing in its Consolidated Plan in order to

address a gap in benefits and services to those

persons. When HOME Program funds are

used in conjunction with Supportive Housing

Program funds for the development of permanent housing, however, only homeless persons with disabilities may be assisted, in

accordance with the Supportive Housing Program rules found

at 24 CFR Part 583. When HOME funds are used in special

needs housing, access to this housing and/or assistance may

not be denied on the basis of race, color, religion, gender,

national origin, familial status, or age.

10 See 24 CFR 92.351(a)(2).

The HOME

Program imposes

specific affirmative

marketing

requirements,

designed to

ensure that all

HOME-funded

developments are

accessible to

members of the

protected classes.
Fair Housing for HOME Program Participants

8

HOME-assisted special needs projects must meet all HOME

Program requirements, including, for projects with five or

more HOME-assisted units, the requirement to affirmatively

market the project. Once developed, the HOME-assisted

units in a special needs project must be affirmatively marketed

to all persons with the special need. For housing that is developed for persons with disabilities, the housing must be marketed to all individuals with disabilities and cannot be restricted to persons with specific types of diagnoses or subclasses of

persons with disabilities.11 Advertisements for this type of

housing must clearly state that the housing is open to any person with a disability; however, the advertisement can identify

the specific services that are to be provided to residents.

Further, a good faith effort must be made to inform and solicit

applications from all members of the special needs group

throughout the market area. 

Housing for Older Persons

Certain housing that is designed and operated for older residents are exempt from the provisions the Fair Housing Act

regarding familial status.12 To qualify under this exemption,

the housing must meet the requirements for housing that is

operated for persons 62 and older, or those for housing that is

operated for persons 55 and older.13

• 62 years of age and older. Housing that is intended for,

and solely occupied by persons that are 62 years of age

and older is exempt from the prohibition against discrimination based on familial status. All household

members must be age-eligible. “Underage” occupants

are permitted only if they have occupied the housing

since prior to September 13, 1988, or if they are

employed by the housing provider and reside in the

building in order to perform job functions, such as a

live-in aide for a person with a disability. 

• 55 years of age and older. In order to qualify for an

exemption from the prohibition against discrimination

based on familial status for housing designed and

operated for persons who are 55 years of age or older, all

three of the following conditions must be met:

— 80 percent occupancy by older persons. At least 80

percent of the occupied units in the housing facility

or community for older persons must be occupied

by at least one person who is 55 years of age or

older;

— Intended and operated for older persons. The housing must be intended and operated for persons who

are 55 years of age or older. In order to show this,

the owner or manager of the housing must publish

and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55

years of age or older. These written documents

might include general rules, lease provisions, deed

or other restrictions, and advertising; and

— Verification of occupancy. The housing provider

must be able to verify the age of occupants of the

building through reliable surveys and affidavits. The

verification of age of occupants should be a part of

the normal leasing or purchasing procedures.

Verification can be based on a self-certification by an

adult member of the household, or any state, local,

or internationally issued document that contains

current information about the age or birth of the

possessor, such as a birth certificate, driver’s license,

or passport. 

If an occupant who is 55 years of age or older dies and leaves

his or her property to a surviving spouse or heir(s) under the

age of 55, and the surviving spouse or heir remains in the

unit, that unit must be “counted” in the 20 percent of the

occupied units that can be occupied by persons under age

55.14 Housing with occupants who are not over 55 and who

first occupied the property prior to 1995 (the passage of

HOPA) is not in violation of this rule, provided it was in

compliance with the rule that was in effect at the time of

occupancy.15

11 Under HUD’s regulations implementing Section 504 of the Rehabilitation Act of 1973 a recipient is prohibited from providing individuals 

with disabilities or a class of individuals with disabilities different or separate housing, aid, benefits, or services from that provided to others 

unless such action is necessary to provide the individual with housing, aid, benefit, or services that is as effective as that provided to others. 

See 24 CFR 8.4(b)(1)(iv).

12 These provisions are based on the Housing for Older Persons Act of 1995 (HOPA), which amended the Fair Housing Act provisions relating 

to housing for older persons. See 24 CFR Part 100 Subpart E.

13 The law also permits an exception for housing for older persons that is provided under a Federal or state program with approval by the

Secretary of HUD.

14 Whether or not an underage heir or surviving spouse can occupy the unit upon the death of the 55 or older occupant is a matter of state or

local law or custom and generally is governed by private contractual agreements between developers of housing for older persons and the

individuals who purchased or rented the dwelling.

15 See 24 CFR Part 100 Subpart E for additional guidance on qualifying housing for older persons.
Understanding the Basics

9

Housing that is eligible for the exemption for housing for

older persons includes rental and homeownership housing

facilities and communities that constitute a dwelling or group

of dwellings governed by a common set of rules, such as a

condominium development, mobile home park, or high-rise

rental property, such as a HOME project. A portion of a single building or development does not constitute a housing

facility or community. It is unlawful to operate a single building within a project as housing for older persons. The entire

project must be designated as housing for older persons. 

Newly constructed housing for first occupancy, or

substantially rehabilitated property that was wholly

unoccupied for at least 90 days prior to re-occupancy, need

not comply with the 80-percent rule until at least 25 percent

of its units are occupied. 

Zoning and Occupancy Restrictions

State and local governments retain the right to impose reasonable restrictions regarding the maximum number of occupants

permitted to occupy a dwelling, as previously discussed in the

definition of familial status.

Discrimination Based on Drug Use

Under the Fair Housing Act, it is lawful to refuse to sell or lease

housing to a person who currently, and illegally, uses a controlled substance, or has an addiction caused by current, illegal

use of a controlled substance. In addition, the Fair Housing Act

does not protect a person from discrimination based on a conviction by any court of competent jurisdiction of the illegal

manufacture or distribution of a controlled substance.16

Single Family Housing that is Sold by an Owner 

Single family housing that is sold by an owner is exempt from

the Fair Housing Act when the owner:

• Does not have an interest in more than three single family houses at a time;

• Does not use a real estate broker to assist with the sale

or rental of the property; and 

• Does not publish, or cause to have published, any discriminatory advertisement(s).

Accessible Housing

Housing that is newly constructed and rehabilitated housing

must be made accessible to persons with disabilities, in

accordance with Section 504, and newly constructed

multifamily housing built for first occupancy after March 13,

1991, must meet certain minimal accessibility requirements in

accordance with the Fair Housing Act. The applicability of

the accessibility requirements, and the technical specifications

that must be met to ensure accessibility, are discussed in more

detail in the companion publication in this series, Fair Housing

for HOME Program Participants: Promoting Fair and Accessible

Housing Opportunities in HOME Projects.

Inquiries About Disability17

Under the Fair Housing Act it is unlawful for a housing

provider to inquire about:

• If an applicant for a dwelling has a disability or if a

person intending to reside in a dwelling or anyone

associated with an applicant or a resident has a

disability, or

• The nature or severity of a disability of such persons. 

Housing providers may make the following inquiries, provided

these inquiries are made of all applicants, regardless of

whether the applicant appears to have a disability or says he

or she has a disability:

• An inquiry into an applicant’s ability to meet the

requirements of tenancy; 

• An inquiry to determine if an applicant is a current, illegal drug abuser;

• An inquiry to determine if an applicant qualifies for a

dwelling legally available only to persons with a disability or persons with a particular type of disability;

• An inquiry to determine if an applicant qualifies for

housing that is legally available on a priority basis to

persons with disabilities or to persons with a particular

disability. For example, a HOME housing provider may

ask applicants if they need units with accessible features.

Fair Housing Enforcement 

Any person who believes he or she has been the victim of

unlawful discrimination has the right to seek appropriate

remedies under the Fair Housing Act, Title VI of the Civil

Rights Act of 1964, and/or Section 504. 

16 See 24 CFR 100.10.

17 See 24 CFR 100.202.

For information about filing a complaint of

discrimination, see the HUD Fair Housing and Equality

Opportunity website at

www.hud.gov/complaints/housediscrim.cfm.
Fair Housing for HOME Program Participants

10

Enforcement of the Fair Housing Act

The Fair Housing Act provides redress for discriminatory practices in any aspect of the rental, sales, or financing of housing;

protects against pattern and practice of discrimination in any

aspect of a housing related transaction; and protects against

intimidation and coercion against a person for filing or cooperating in the investigation of a complaint of housing discrimination. Under the Fair Housing Act, any aggrieved person,

including direct and indirect victims of discrimination,18 may

seek remedy for unlawful discrimination by filing a complaint

of discrimination with HUD, in Federal district court, or with

a state and local agency where HUD has determined the state

and local laws are substantially equivalent to the Fair Housing

Act. HUD may also initiate a complaint itself.

HUD reviews and investigates complaints in a manner that

provides all parties an opportunity to be heard and seeks voluntary and informal resolution to complaints, where possible.

When conciliation cannot be reached, and HUD makes a

determination that there is reasonable cause to believe that a

discriminatory housing practice has occurred or is about to

occur, HUD issues a charge of discrimination. Each party is

given an opportunity to have claims decided in a civil action

brought by the Attorney General. If neither party elects to

have the claims decided in Federal court, the case is referred to

an Administrative Law Judge (ALJ). If an ALJ determines

that there was, or is likely to be, an unlawful discriminatory

housing practice, he or she issues an order for appropriate

relief. This might include actual damages, injunctive relief, or

other equitable relief. Civil penalties may be assessed in

amounts up to $60,000. 

An aggrieved person can commence a private civil action in an

appropriate United States district court or state court to

obtain appropriate relief for a discriminatory housing practice.19

If the Federal or state court finds that a discriminatory housing practice has occurred, it can award the plaintiff actual

and/or punitive damages, which are not limited in amount; or

it may grant other types of relief to enjoin the defendant from

engaging in such practice; or order affirmative action as may

be appropriate. 

Enforcement of Title VI of the Civil Rights Act

of 1964

Recipients of Federal funds, including HOME PJs and their

housing partners, are responsible for compliance with Title VI

requirements that prohibit discrimination on the basis of race,

color, or national origin in programs and activities receiving

Federal financial assistance. In addition, Title VI protects

those who file a complaint or cooperate in the investigation of

a complaint from intimidation or retaliation. Victims of

unlawful housing discrimination practices in housing that

receives Federal assistance have the right to seek remedies

under Title VI by filing a complaint with HUD.

In addition, HUD conducts periodic reviews to determine

whether recipients are complying with Title VI and its implementing regulations at 24 CFR Part 1. 

HUD encourages a voluntary resolution of complaints and

instances of noncompliance, and seeks to resolve the issues

through the signing of a voluntary compliance agreement

(VCA) between HUD and the respondent. HUD’s primary

obligation is to ensure that any violations of Title VI are remedied and that actions are taken to ensure that the rights of

other persons are not violated under Title VI.

VCAs are used to resolve individual issues as well as

compliance issues relating to how the recipient conducts its

program. If a recipient does not comply with a signed VCA,

then HUD may refer the case to the Department of Justice

for enforcement. When investigating a complaint, the

recipient of the Federal funds (for the HOME Program, this is

the PJ) is provided a number of opportunities to respond to

the issues, and/or take corrective action to comply. In cases of

a determination of noncompliance, HUD issues a formal

Letter of Determination. Again, the recipient is provided an

opportunity to comment and come into voluntary compliance.

If, upon notice of the finding of noncompliance, the recipient

fails to come into compliance voluntarily, HUD may suspend,

terminate, or refuse to grant or to continue Federal financial

assistance, or seek redress through other means. Affected

funding is limited to the program in which noncompliance is

documented.

18 An indirect victim of discrimination may, for instance, be a resident of a neighborhood or apartment building that remains segregated due to 

the unlawful discriminatory practices of a real estate or rental management agent. 

19 A private civil action can also be brought if there is a breach of a conciliation agreement in connection with a discriminatory housing practice.
Understanding the Basics

11

Enforcement of Section of 504

Section 504 provides redress for any individual who is discriminated against on the basis of disability by a recipient of

Federal financial assistance. Any aggrieved person can file a

complaint with HUD. In addition, HUD conducts periodic

reviews to determine whether recipients are complying with

Section 504. 

HUD encourages a voluntary resolution of complaints and

instances of noncompliance, and seeks to resolve the issues

through the signing of a voluntary compliance agreement

(VCA) between HUD and the respondent. HUD’s primary

obligation is to ensure that any violations of Section 504 are

remedied and that actions are taken to ensure that the rights

of other persons are not violated under Section 504.

VCAs are used to resolve individual issues as well as compliance issues relating to how the recipient conducts its program.

If a recipient does not comply with the VCA, then HUD may

refer the case to the Department of Justice for enforcement.

When investigating a complaint, the recipient of Federal

funds (for the HOME Program, that is the PJ) is provided a

number of opportunities to respond to the issues and/or take

corrective action to comply. In cases of a determination of

noncompliance, HUD issues a formal Letter of Determination.

Again, the recipient is provided an opportunity to comment

and come into voluntary compliance. If, upon notice of the

finding of noncompliance, the recipient fails to come into

compliance voluntarily, HUD may suspend, terminate, or

refuse to grant or continue Federal financial assistance, or seek

redress through other means. Affected funding is limited to

the program in which noncompliance is documented. 

Monitoring and Ongoing Obligations

Recipients must maintain records that demonstrate its compliance with Section 504. In general, these records should

include data showing the extent to which persons with disabilities are beneficiaries of the program(s). These records must

be made available to HUD, as well as to participants, beneficiaries, and other interested persons.

Conclusion

In order to ensure that all people in the United States have

equal access to housing opportunities, Federal law prohibits

discrimination in housing based on a person’s race, color, religion, sex, familial status, national origin, or disability. This

right is protected by a number of civil rights laws, the most

significant of which are the Fair Housing Act, Title VI, and

Section 504. This publication has reviewed in detail the most

fundamental of the provisions in the fair housing regulations—that discriminatory housing practices are prohibited in

all housing—both publicly- and privately-owned or developed

housing, and in all housing related transactions, particularly in

housing that is assisted with Federal funds, such as HOME

funds. Under certain circumstances specified in the Fair

Housing Act, PJs and their housing partners can develop and

manage housing for older persons without violating the prohibition against discrimination based on familial status. In addition, the Fair Housing Act generally requires applicants and

residents to be given equal treatment irrespective of membership in a protected class, however, in some circumstances, the

Act may require a housing provider to treat persons with disabilities differently, for the express purpose of creating for

them equal access to or enjoyment of housing and other housing related programs. 

Additional Resources

The regulations governing the HOME Program can be found

at 24 CFR Part 92. The home page for the HOME Program

is www.hud.gov/offices/cpd/affordablehousing/programs/

home/. From this site, one can access the statute, regulations,

technical guidance, training opportunities, and a wealth of

resources that facilitate the administration of the HOME

Program.

The Fair Housing Act can be found online at

www.usdoj.gov/crt/housing/title8.htm. Its implementing

regulations are at 24 CFR Part 100, et. al., and can be found

online at www.archives.gov/federal_register/index.html.

HUD’s Office of Fair Housing and Equal Opportunity

(FHEO) provides ample guidance on the requirements of the

Fair Housing Act. This information can be accessed from its

homepage at www.hud.gov/offices/fheo/index.cfm or its library

listing atwww.hud.gov/library/bookshelf09/.

For guidance on the requirements related to providing reasonable accommodations, see the Joint Statement of the U.S.

Department of Housing and Urban Development and the

U.S. Department of Justice entitled Reasonable Accommodations

Under the Fair Housing Act, May 14, 2004. This document can

be accessed from the FHEO website at http://www.hud.gov/

offices/fheo/library/huddojstatement.pdf.

See the proposed guidance entitled “Guidance to Federal

Financial Assistance Recipients Regarding Title VI Prohibition
Fair Housing for HOME Program Participants

12

Against National Origin Discrimination Affecting Limited

English Proficient Persons” Federal Register, December 19,

2003 (Volume 68, Number 244). 

For an overview and link to each of the relevant fair housing

laws, regulations, and executive orders, see HUD’s FHEO

website at: www.hud.gov/offices/fheo/FHLaws/index.cfm.

The National Fair Housing Advocate Online homepage is at

www.fairhousing.com/. This site provides an overview of fair

housing issues, including an extensive listing of and links to,

legal resources and other fair housing sites. The Tennessee

Fair Housing Council maintains this site.

About the Series: 

Fair Housing for HOME

Program Participants

The Fair Housing for HOME Program Participants series is

designed to help PJs and their housing partners understand

and comply with Federal fair housing laws and regulations in

the implementation of their HOME Program activities. In

general, these laws:

• Prohibit discrimination in housing and housing related

transactions by PJs and their housing partners; 

• Require PJs to affirmatively further fair housing;

• Prescribe design and construction standards to ensure

equal access to housing by persons with disabilities; 

• Promote the use of minorities and women, and minority

and women business enterprises in Federally funded contracting opportunities; 

• Encourage the creation of employment opportunities for

low-income residents of neighborhoods where HOME

Program activities are undertaken; and

• Require the implementation of affirmative marketing

strategies and outreach to those segments of the populations identified as least likely to apply for the housing

without such outreach.

The Fair Housing for HOME Program Participants series contains

the following publications:

• Fair Housing for HOME Program Participants:

Understanding the Basics. This publication identifies the

protected classes, describes the nondiscrimination

provisions of the fair housing laws, and defines

prohibited discriminatory actions. In addition, it briefly

discusses issues related to affirmatively furthering fair

housing and the provision of housing for persons with

disabilities. (These topics are explored in greater detail

in subsequent publications of the series.) All subsequent

publications are based on the assumption that the reader

is familiar with the fundamental requirements outlined

in this publication.

• Fair Housing for HOME Program Participants: Affirmatively

Furthering Fair Housing describes a PJ’s obligation to

affirmatively further fair housing and reviews eligible

uses of HOME Program funds to promote fair housing. 

• Fair Housing for HOME Program Participants: Creating

Economic Opportunity reviews the requirements designed

to create economic opportunities for minorities and

women, minority and women business enterprises, and

low- and very low-income residents living in HOME

project areas.

• Fair Housing for HOME Program Participants: Promoting

Fair and Accessible Housing Opportunities in HOME Projects

describes the applicability of fair housing laws to rental

and homeownership housing development, new construction, and rehabilitation. This publication provides

guidance on site and neighborhood standards, recordkeeping, and design and construction requirements to

ensure accessibility. 

• Fair Housing for HOME Program Participants: TenantBased Rental Assistance discusses tenant selection criteria

and procedures and reasonable accommodations and

modifications under the Fair Housing Act and program

accessibility under Section 504.

The Fair Housing for HOME Program Participants series will help

managers, program staff, and procurement staff of the PJ and

its housing partners. These entities must comply with fair

housing requirements when administering programs and

developing projects to be funded by the HOME Program. 

The Fair Housing for HOME Program Participants series focuses

on Federal fair housing laws related to housing development

and management that are implemented and monitored by

HUD. It provides guidance on how PJs and their housing

partners can comply with (1) the nondiscrimination mandates

of the civil rights laws (focusing primarily on the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973), and

Title II of the Cranston-Gonzalez National Affordable

Housing Act of 1990; and (2) the affirmatively furthering fair

housing mandate of Section 808(e)(5) of the Fair Housing Act.

The HOME Program is also subject to Title VI of the Civil

Rights Act of 1964 and its implementing regulations at 24

CFR Part 1, which prohibit recipients of Federal assistance

from discriminating on the basis of race, color and national

origin. 

The series does not provide guidance on state and local fair

housing requirements, which may differ from Federal laws.
Understanding the Basics

13

PJs and their housing partners that are unfamiliar with state

and local requirements can identify resources through the

National Fair Housing Advocate Online agency finder at

www.fairhousing.com. Likewise, the series does not provide

guidance on the Americans with Disabilities Act of 1990

(ADA) requirements, which are administered by the

Department of Justice (DOJ). PJs are subject to ADA

requirements, and can get more information about their obligations from the DOJ website at www.usdoj.gov/crt/ada/

adahom1.htm. 

Readers that have specific questions about interpretation of

civil rights or fair housing laws are encouraged to seek the

advice of legal counsel.

HOME Model Program Guides

Fair Housing for HOME Program Participants is a HOME model

program guide published by HUD’s Office of Affordable

Housing Programs. The HOME model program guides provide technical assistance to jurisdictions that are implementing

HOME Program activities. Additional copies of any of the

publications in the Fair Housing for HOME Program Participants

series, as well as other HOME model program guides, can be

obtained from Community Connections Information Center at

1-800-998-9999. For a list of available model program

guides, visit the HOME Program web site at

www.hud.gov/offices/cpd/affordablehousing/ library/

modelguides/index.cfm. 

For more information about the HOME Program, visit

www.hud.gov/offices/cpd/affordablehousing/programs/home/

index.cfm.


U.S. Department of Housing and Urban Development

Office of Community Planning and Development

HUD-2005-10-CPD

May 2005
1

Affirmatively Furthering

Fair Housing

Fair Housing for HOME Program Participants

Affirmatively Furthering

Fair Housing

When a participating jurisdiction (PJ) of the HOME Program prepares its Consolidated Plan, it must certify that it will affirmatively further

fair housing. This certification is an acknowledgement by the PJ that it accepts the obligation to promote fair housing when it accepts U.S.

Department of Housing and Urban Development (HUD) funds. The PJ carries out this certification by implementing a series of steps that address

the three components of the certification. This publication, “Affirmatively Furthering Fair Housing,” describes the meaning of the certification and

provides guidance on (a) preparing an Analysis of Impediments, (b) taking appropriate actions to overcome the effects of impediments to fair housing choice in the jurisdiction that are identified in the analysis, and (c) maintaining records.1 This publication also explains how a PJ can use

HOME funds to support general fair housing efforts.

This publication is part of the series “Fair Housing for HOME Program Participants.” The purpose of the series is to provide technical assistance

to HOME PJs and their housing partners on the fair housing laws and regulations that apply to HOME Program activities. Specifically, the

series reviews the applicable Federal fair housing laws and regulations, illustrates best practices in promoting fair housing, and highlights PJ

responsibilities for ensuring compliance with fair housing requirements. For purposes of this publication, the PJ’s “housing partners” include all

persons and entities who use HOME Program funds, including, but not limited to, the PJ and its recipients, state recipients, contractors, subcontractors, developers (including community housing development organizations), owners, and management agents.

Certification to Affirmatively

Further Fair Housing: 

Fair Housing Planning

As a condition of receiving HOME and other HUD formulabased funding, a participating jurisdiction must submit a

Consolidated Plan that analyzes the jurisdiction’s housing

market conditions, assesses the housing needs of its lowerincome families and other groups within the eligible population, describes a strategy for addressing the identified needs,

and articulates an action plan for investing Federal affordable

housing dollars. As a part of this plan, which is subject to

HUD approval, a PJ certifies that it will affirmatively further

fair housing. In order to affirmatively further fair housing, the

PJ is required to:

• Conduct an analysis to identify impediments to fair

housing choice within the jurisdiction (an “Analysis of

Impediments,” or “AI”);

• Take appropriate actions to overcome the effects of any

impediments identified through that analysis; and

• Maintain records reflecting the analysis and actions in

this regard.2

PJs are not required to submit their analyses to HUD, but

they must conduct and maintain them. In the event HUD

receives a complaint, it will require submission of an AI, or it

may request its submission as part of monitoring. If HUD

believes that a jurisdiction has provided an inaccurate certification as part of its Consolidated Plan, it must notify the PJ that

it believes the certification to be inaccurate and provide the PJ

an opportunity to provide supporting evidence to demonstrate

its accuracy. HUD may reject a certification if, after inspecting the jurisdiction’s documentation supporting the certification and providing the jurisdiction notice and opportunity to

comment, HUD determines the certification to be inaccurate.

Rejection of the certification provides the basis for HUD to

disapprove the jurisdiction’s Consolidated Plan.

1 These three activities are often referred to as “fair housing planning.” 

2 See 24 CFR 91.225, 91.325 and 91.425 for the Consolidated Plan requirements related to affirmatively furthering fair housing certifications

for local governments, states, and consortia respectively.
Fair Housing for HOME Program Participants

2

The Analysis of Impediments

In its simplest form, an Analysis of Impediments addresses the

question: “Do all residents and potential residents of this

jurisdiction have equal access to housing regardless of their

race, color, religion, sex, national origin, disability, or familial

status? If not, why not?”

HUD has defined “impediments to fair housing choice” to

include specific actions as well as the lack of action(s), as follows:

• Any actions, omissions, or decisions taken because of

race, color, religion, sex, disability, familial status, or

national origin which restrict housing choices or the

availability of housing choices; and

• Any actions, omissions, or decisions which have the

effect of restricting housing choices or the availability of

housing choices on the basis of race, color, religion, sex,

disability, familial status, or national origin.

The Fair Housing Planning Guide, published by HUD in 1996,3

provides comprehensive guidance on how to develop an AI

and a plan to overcome the identified impediments. This section summarizes some of the most relevant information from

that guide. The complete guide is available online at HUD’s

Fair Housing and Equal Opportunity Library at

www.hud.gov/offices/fheo/images/fhpg.pdf.

Preparing the Analysis of Impediments

The AI is an analysis of a wide range of actions, existing conditions, and policies that affect housing choice, in both the

public and private housing sectors and markets, and nonhousing issues that affect housing choice and opportunity. It

is not restricted to the design and operation of HUD-funded

programs within a PJ’s jurisdiction. The analysis should

involve:

• A comprehensive review of a state or local jurisdiction’s

laws, regulations, and administrative policies, procedures, and practices; and, for local jurisdictions, those of

the state to which the jurisdiction belongs;

• An assessment of how these laws, regulations, policies,

and procedures effect the location, availability, and

accessibility of housing in the jurisdiction;

• An assessment of conditions, both private and public,

affecting fair housing choice for all protected classes; 

• An assessment of the availability of affordable, accessible

housing in a range of unit sizes; and

• An analysis of whether or not the PJ has sufficient, accurate, and current information and data to understand

and document all of its fair housing impediments. 

PJs have considerable discretion in determining the process by

which they will develop an AI, what is included in the AI,

how they define fair housing and its impediments, and what

actions they will undertake to overcome the effects of those

impediments. To prepare a comprehensive analysis, HUD recommends that PJs undertake this effort, and make these decisions, in a thoughtful and intentional way.

When Must the AI Be Prepared? 

HUD requires each new PJ to conduct an AI. There is no

requirement regarding the timing of updates to the AI. In

general, a PJ should update its AI on an as-needed basis.

When a PJ is developing a new complete Consolidated Plan

(required every three to five years), it examines its housing

needs, including any demographic changes in the jurisdiction.

This, or other changes in the jurisdiction, may result in a need

to make revisions to the AI. Generally, if the original analysis

is thorough, these revisions should be able to be accomplished

by addenda to the original document.

Who Should Undertake the AI?

PJs can use their own staff or contract the work to a third

party to complete the AI. Since developing an AI and taking

actions to overcome the effects of impediments are ongoing

responsibilities, developing in-house expertise has advantages

in the long run. If, however, the PJ does not have staff with

time and/or expertise in fair housing issues, securing a competent third party to undertake the AI might make sense. 

PJs should establish an inclusive process to help avoid the perception of bias, particularly when securing an industry group

or advocacy group to undertake the writing of the AI. The

perspectives of the public sector, affected industry professionals, and members of each protected class must be considered

during the development of the AI if a PJ wants the AI to be,

and be perceived as, fair and unbiased.

What is Included in the AI? 

The impediments to fair housing choice can include a wide

range of actions, existing conditions, and policies that affect

housing choice, in both the public and private housing sectors

and markets, and non-housing issues that affect housing

choice and opportunity. For instance, pervasive discrimination

in the housing market and insurance industry are unlawful

actions that clearly constitute impediments to housing choice.

In addition, while economic and transportation issues may not

appear to be directly related, they frequently do impact

3 U.S. Department of Housing and Urban Development. Fair Housing Planning Guide. Third reprint. HUD-1582B-FHEO. March, 1996.
Affirmatively Furthering Fair Housing

3

housing choice. Likewise, in some jurisdictions, residents with

limited English proficiency based on their national origin

might experience difficulty accessing the housing market. PJs

might choose to include this in their AIs.

PJs will find that the parties involved in the AI process may

disagree about what constitutes an impediment to fair housing

choice. For instance, while most people agree that unlawful

acts of discrimination in the housing market are an impediment to fair housing, there might not be agreement about

whether general attitudes and perceptions about others are an

impediment. The PJ determines how those differences of

opinion will be handled in the context of the AI.

In preparing the AI, there may be areas where a PJ has limited information, such as the rate of discriminatory practices in

the mortgage lending market. The AI should note these areas

of deficiency, and the PJ should consider steps to obtain more

information so it is able to fully understand the impediments

to fair housing choice in the jurisdiction.

What Kind of Process Should the PJ Undertake?

From a practical perspective, PJs should make decisions about

who undertakes the AI, how it is undertaken, and what the

AI will include in anticipation of the need to take actions to

overcome these impediments. PJs should consider a process

that is as inclusive as possible to bolster support for the resulting action plan. PJs might also consider staffing the AI, so

that those who will be responsible for implementing the subsequent actions are able to develop the expertise they will

need to address the identified impediments. 

Elements of the Analysis of Impediments

PJs must make a good faith effort to review and document

their fair housing needs. This analysis should include data

about the housing needs of each of the protected classes. For

many communities, existing data can be used effectively and

obtaining new data may not be necessary. 

It is useful to start the AI process by looking closely at the

PJ’s Consolidated Plan, since it requires the presentation of

specific data that might help the PJ understand its fair housing needs. Exhibit 1 provides a list of data elements that are

required in the Consolidated Plan that should be helpful in

the AI development. 

Exhibit 1

Consolidated Plan Elements to Consider in the Development of the AI

The housing and homeless needs assessment of the Consolidated Plan must include:

U An estimate of the number and type of families in need of housing assistance for persons with disabilities;

U A description of the extent to which any racial or ethnic group and persons with disabilities have disproportionately greater need in comparison to the needs of that category as a whole, and an assessment of that specific need;

and

U An estimate of the number of persons with special needs who are not homeless, and a description of their supportive housing needs.

The housing market analysis of the Consolidated Plan must include:

U A definition of “area of minority concentration” and locations identified by narrative or map;

U A description of the condition, cost of housing, and the housing stock available to serve persons with disabilities;

and

U A description of the special needs facilities and services available in the jurisdiction.

The Strategic Plan must include:

U Supportive housing needs of special needs populations in the jurisdiction.

The Action Plan must include:

U A description of the geographic distribution of the housing assistance for the program year, including whether or

not funds will be provided in areas of minority concentration; and

U Activities that will be undertaken to address special needs of persons identified in Strategic Plan.
Fair Housing for HOME Program Participants

4

Each PJ can determine the types of data that must be

collected and included in the AI; HUD does not prescribe

these elements. In general, a comprehensive AI would include

a review of the following:

• Demographic data regarding the jurisdiction’s population and housing. Most of this data is included in U.S.

Census data provided to the PJ by HUD for preparation

and completion of the Consolidated Plan.

• Home Mortgage Disclosure Act reports to illustrate

mortgage and rehabilitation lending patterns by race

and ethnic group.

• Availability of accessible housing stock for residents with

disabilities. 

• Findings resulting from complaints and fair housing litigation in the jurisdiction. 

— In some jurisdictions, there are several types of

agencies that investigate fair housing complaints,

such as a local fair housing organization, a state or

local human relations commission, or the HUD

field office. Effort should be made to understand

the data generated by all such entities.

— PJs are cautioned to interpret complaints data with

care. A large number of complaints that result in

findings of discrimination might readily be interpreted to mean that the jurisdiction has a problem

with discrimination in the housing market.

However, a lack of complaints might be explained

by a number of different factors, such as: (1) the

jurisdiction may lack an investigative entity; (2) the

general public may be unaware of its fair housing

rights or available recourse; or (3) members of the

protected classes may lack confidence in the investigative entity. Any of these conditions might be

considered an impediment to fair housing choice. 

• Results of any fair housing testing activity in the

jurisdiction, if any are available. Because discriminatory

behavior in the housing market is often very subtle,

testing is one of the most reliable means of determining

the extent and type of discrimination that occurs in the

housing market.

• Occupancy requirements that might unlawfully limit

group homes for persons with disabilities or families

with children.

• Geographic patterns related to the use of Housing

Choice Vouchers and the siting of assisted housing.

• Efforts to assist and serve persons who have limited proficiency in the English language to function more effectively in the housing market and assert their rights

under civil rights laws such as the Fair Housing Act.

In many jurisdictions there is a distinct correlation between

fair housing and affordable housing because the jurisdiction’s

low-income population is disproportionately represented by

members of the protected classes, particularly by racial and

ethnic minorities, large families, and persons with disabilities.

The information in the Consolidated Plan regarding the barriers to affordable housing may be particularly significant to the

AI. While there may be overlap, however, the provision of

affordable housing in and of itself does not necessarily remedy

a lack of fair housing choice, nor is the lack of affordable housing typically the sole impediment to fair housing choice. Any

affordable housing strategy developed by the PJ should be

reviewed from the perspective of promoting fair housing prior

to implementation. 

Exhibit 2 provides a list of issues that a comprehensive AI

would address, although not all of these elements are required. 

Taking Actions to Overcome

the Effects of Impediments

Once the impediments to fair housing choice are identified in

the AI, PJs must take actions to overcome the effects of these

impediments. To meet this requirement, HUD strongly recommends that PJs develop a plan of action that is derived from

the specific issues identified in the AI. Many communities

will find that there are far more impediments to fair housing

than they are able to address in a single year. Similarly, there

are many, many possible activities they could undertake to

support and promote fair housing. A plan of action, with a

defined fair housing objective, will make the task of establishing priorities, taking actions, and evaluating results far easier

for PJs.

A thorough plan of action will specify what actions will be

taken to overcome the impediments identified in the AI, what

resources are available to undertake each activity, who will

undertake each activity, and the timeframe for each action.

By developing a plan in a thoughtful way, the PJ will have a

tool by which it can (a) measure the success of its actions to

overcome the effects of the impediments identified in the AI;

and (b) identify new impediments as they are recognized as

problems. Ideally, the plan would include a methodology for

ongoing review to measure progress.

A PJ should undertake actions to overcome the effects of the

impediments it identifies, whether or not the PJ itself may

have caused or contributed to them. In fact, PJs should consider all actions it might take to overcome impediments that

might have been caused by actions, omissions, decisions, or

lack thereof by the public and the private sector. HUD does

not hold PJs accountable for the impediments themselves, but

it will hold PJs accountable for what actions they choose to

undertake to lessen or eliminate the effects of the impediments.
Affirmatively Furthering Fair Housing

5

Exhibit 2

Sample Elements of a Comprehensive Analysis of Impediments

Introduction and Executive Summary of the Analysis

U Statement of the purpose of the AI;

U Description of the process undertaken to develop the AI, including who led the process, the participants involved,

the methodology used, and the funding source(s); and

U Conclusions of the AI, including the impediments found, and a summary of the actions planned to address these

impediments.

Background Data about the Jurisdiction

U Demographic data, including population by race, ethnicity, and limited English proficiency; income; and

employment;

U Housing market profile, including rent profile, homeownership profile, residential development activity, affordable

housing needs, housing costs, vacancy rates, public housing, availability of accessible housing, and level of

accessibility;

U Maps showing areas of minority concentration, location of assisted housing, and concentrations of low- and very

low-income residents; and

U Other relevant data, such as employment or transportation data that might affect fair housing choice. 

Evaluation of Jurisdiction’s Current Fair Housing Status

U Description of information gathered about discriminatory behaviors in the jurisdiction, including information about

fair housing complaints; compliance reviews where HUD has issued a charge or made a finding of discrimination;

and fair housing discrimination suits filed by the Department of Justice or private plaintiffs;

U Assessment of current public and private fair housing programs and activities in jurisdiction;

U Explanation of reasons for any trends or patterns identified in the review of data, including discussion of fair

housing issues facing each of the protected classes in real estate and real estate related transactions (sale and

rental of housing, appraisal, insurance, and lending activities); and 

U Discussion of other fair housing concerns or problems.

Identification of Impediments to Fair Housing Choice

U Impediments in the public sector

— Description and analysis of zoning, site selection, and property tax policies and practices; 

— Description of building codes and analysis of how they impact accessibility;

— Review and analysis of neighborhood revitalization strategies and relationships to the delivery of municipal and

other services; 

— Analysis of the impact of (1) tenant selection issues by the local public housing authority and other assisted or

insured housing providers, and (2) the sale of subsidized housing and possible displacement; and

— Where there has been a determination of unlawful segregation or other housing discrimination by a court or by

HUD, an analysis of the actions that can be taken by the recipient to help remedy the discriminatory or segregated condition.

U Impediments in the private sector

— Description and analysis of policies and practices related to real estate transactions, including appraisals, insurance, and lending activities.

U Impediments in the public and private sectors

— Fair housing enforcement in the public and private sectors;

— Informational programs by the public and private sectors; and

— Visitability in housing.

Conclusions and Recommendations
Fair Housing for HOME Program Participants

6

PJs also should choose action items that correlate to, and

directly impact, the impediments identified in the AI. For

example, a fair housing month poster contest would be an

inappropriate and insufficient action to overcome the effects of

pervasive discrimination in the housing market. PJs may want

to use one or more of the following strategies to guide their

decisions in choosing actions to undertake. These options are

not necessarily compatible.

• Target high visibility action items. Identify the issues

that are most visible to the general public or to a

targeted group within the housing industry, and address

those first to raise awareness about the fair housing

impediments.

• Target high impact action items. Identify the most

problematic issues, and those that will have the greatest

impact on the fair housing environment. These will not

always be the most politically feasible options.

• Build support. Tackle issues that have wide support from

the diverse constituencies involved in the fair housing

arena. By tackling some of the less controversial action

items first, a PJ can develop relationships with affected

parties, create a successful track record, and position itself

to move on to more controversial action items.

Regardless of which strategy the PJ undertakes, it will be

helpful to:

• Establish priorities and develop a realistic timeframe for action. Delineate several steps to address

impediments identified in the AI and prioritize those

steps for immediate action and others to be undertaken

at a later date.

• Commit sufficient resources and involve others. As

with all else, adequate staff time and funding will be

important considerations. PJs should, wherever possible, involve the private and nonprofit sectors.

Common Impediments to Fair

Housing and Appropriate

Actions 

The same impediments to fair housing choice are evident to

greater or lesser degrees in many jurisdictions. Below are

some examples of common impediments PJs find and steps to

consider when determining what actions to undertake. 

Impediments

Impediments are defined in the Fair Housing Planning Guide4

as “Any actions, omissions, or decisions taken because of race,

color, religion, sex, disability, familial status, or national origin

which restrict housing choices or the availability of housing

choices, or which have the effect of restricting housing choices

or the availability of housing choices on the basis of race, color,

religion, sex, disability, familial status, or national origin.” These

might include:

• Discrimination based on racial or ethnic background in

sales and rental housing markets;

• Lending discrimination or lack of information about

lending practices; 

• Insurance and appraisal policies that reinforce segregated

housing patterns or lack of information about insurance

and appraisal policies;

• Discrimination against families with children;

• Discrimination against persons with disabilities;

• Insufficient multi-lingual marketing efforts targeted to

those who have limited English proficiency;

• Zoning requirements limiting use or size of group

homes, without exceptions for persons with disabilities;

and

• Resistance by neighbors to development of housing for

persons with disabilities (Not In My Back Yard).

Existing conditions can effectively limit housing choices as

well and thereby also constitute impediments to fair housing.

Some common examples include:

• Geographic concentration of racial and ethnic

minorities;

• Geographic concentration of low- and very low-income

persons, and of assisted housing;

• Lack of large rental units to accommodate families with

children; 

• Lack of public transportation in suburban areas that

serves to limit access of households without automobiles

from residential opportunities in those areas. For some

regions, these households may be primarily minority

households. This type of problem can be exacerbated by

the fact that, in many regions, employment opportunities are also expanding in suburban areas.

• Insufficient number of curb cuts in the jurisdiction to

make housing accessible to those with mobility impairments; and

• Lack of accessible housing in the existing housing inventory of the jurisdiction.

Appropriate Actions

There are many appropriate actions that a PJ can take to

overcome the effects of impediments identified in the AI. The

4 U.S. Department of Housing and Urban Development. Fair Housing Planning Guide. Third reprint. HUD-1582B-FHEO. March, 1996. 

Available online at www.hud.gov/offices/fheo/images/fhpg.pdf.
Affirmatively Furthering Fair Housing

7

following list provides some common examples:

• Select sites (or provide an incentive for developers to

select sites) for affordable housing that increase opportunities outside existing areas of minority and ethnic concentration. 

• Use testing in the housing market to uncover unlawful

discrimination. Testing can uncover many different

types and forms of discrimination, such as:

— Outright denial of any available housing when

housing is, in fact, available; 

— Acts of racial, ethnic, or religious steering; 

— Denial of reasonable modifications for persons with

disabilities; 

— Differential rental or security deposit requirements

for families with children; and

— Unreasonable unit-size or unit-configuration occupancy requirements.

• Increase or standardize testing procedures used to determine discrimination against all protected classes. Where

there are no private fair housing agencies, or state or

local governmental agencies that conduct testing, a PJ

might create a system for uncovering housing discrimination and referring complaints. Taking and publicizing

legal action and settling discrimination cases generally

prove to be strong deterrents to unlawful behavior.

• Modify land use requirements to facilitate development

of group homes. Typical modifications might include

addressing the number of unrelated persons who can

reside in one household; the number of group homes

that can be operated in certain residential areas; and

special accommodations or special use provisions for

group housing.

• Use Federal funds for affordable housing to increase the

supply of accessible units and large rental units for

families with children.

• Adopt design standards that embrace the principles of

universal design and visitability. These concepts are discussed in detail in the companion publication Fair

Housing for HOME Program Participants: Promoting Fair

and Accessible Housing Opportunities in HOME Projects.

• Promote the importance of exercising fair housing choice

to all members of the public, particularly members of

the protected classes.

• Educate professionals in the housing and related industries whose members have the greatest impact on fair

housing, such as:

— Real estate professionals, to ensure they fully understand their requirements and liabilities under the

fair housing laws.

— Providers of homeowner insurance, to ensure their

underwriting standards do not discriminate against

certain neighborhoods. For example, in some

regions, racial and ethnic minorities tend to reside

in older neighborhoods. Policies that limit the availability of insurance to older neighborhoods might

have a disparate impact on these protected classes.

— Members of the appraisal industry, to ensure that

they are certified and that professional appraisal

standards expressly prohibit consideration of the

racial or ethnic composition of a neighborhood on

value estimates.

• Educate the public on fair housing issues.

• Develop partnerships with other organizations that have

a common goal of reducing discrimination in housing.

Partnerships can help reduce duplication of effort,

stretch small budgets, and help ensure the consistency of

efforts to overcome fair housing impediments. 

Record-keeping

The PJ is required to maintain records that demonstrate that

it has met its obligation to affirmatively further fair housing,

as certified in its Consolidated Plan. To meet this requirement,

the PJ must, at a minimum, maintain in its files:

• A copy of its AI; and

• Records that show the PJ has taken actions to overcome

the effects of impediments identified in the AI.

In addition, HUD recommends that PJs maintain the following information:

• A copy of its fair housing action plan, if developed;

• A description of the process undertaken to carry out the

AI, and a summary or transcript of all public meetings,

hearings, and citizen comments or other public input; 

• A summary report of all activities related to the AI,

including: a summary of the AI, a list of the actions

taken in the previous program year, and an analysis of

the impact of those actions on eliminating discrimination and providing for fair housing choice; and

• Studies evaluating the effectiveness of the actions, if

undertaken.

The PJ is required to report annually on these efforts as part

of its Comprehensive Annual Performance and Evaluation

Report (CAPER) to HUD on its Consolidated Plan.

Using HOME Funds to

Affirmatively Further Fair

Housing

HOME Program administrative funds can be used to support

(a) a wide range of activities that are designed to affirmatively

further fair housing, in accordance with the PJ’s certification
Fair Housing for HOME Program Participants

8

in its Consolidated Plan; and (b) any of the costs of complying

with the other Federal requirements applicable to the HOME

Program, including promoting fair housing. This means that

HOME funds may be used for undertaking the AI and its

related plan of action, or for the implementation of any of the

recommended action items articulated in the plan, even if they

are neither directly related to HOME-assisted housing, nor do

they address HOME-specific “deficiencies.”

Funds used for fair housing activities are subject to the cap on

administrative funds. This means that no more than ten percent of the PJ’s annual HOME Program allocation plus ten

percent of the program income deposited in the local HOME

Program account during the program year may be used for

reasonable administrative and planning costs, including those

funds used for fair housing-related activities.

The Fair Housing and the HOME Program Participant series

explores specific obligations of the PJ to (a) pass fair housing

requirements on to its housing partners, and (b) to monitor

compliance. Costs related to educating housing partners and

monitoring these obligations are eligible administrative costs

as well. 

Some fair housing-related costs may be eligible project soft

costs when the fair housing activities are directly associated

with the financing or development of new construction, rehabilitation, or acquisition of housing assisted with HOME

Program funds. To be an eligible project cost, the activities

must be for providing information services in relation to a specific HOME-funded project. This might include (a) providing

fair housing information, (b) counseling homeowners or tenants who (will) occupy HOME-assisted housing, or (c) conducting affirmative marketing or outreach for specific HOMEfunded project(s), as required by 24 CFR 92.351. 

Conclusion

Every HOME PJ is required to certify in its Consolidated Plan

that it will affirmatively further fair housing. This means that

it will: 

• Conduct an analysis of impediments to fair housing

choice within the jurisdiction; 

• Take appropriate actions to overcome the effects of any

impediments identified through that analysis; and 

• Maintain records reflecting the analysis and actions. 

The PJ has the discretion to determine who conducts the AI,

how it is conducted, what it will include, and what actions

that it will take to overcome the effects of the impediments

identified. This publication reviewed the choices PJs face in

carrying out this obligation to affirmatively further fair housing, and provided recommendations for actions that might

address typical impediments to fair housing choice.

Additional Resources

Consolidated Submissions for Community Planning and Development

Programs, 24 CFR Part 91, available online at

www.archives.gov/federal_register/ index.html. This regulation contains the requirement that PJs certify that they will

affirmatively further fair housing. 

U.S. Department of Housing and Urban Development.

Consolidated Plan: Questions and Answers. July 2004. Available

online at www.hud.gov/offices/cpd/about/conplan.

HUD. Fair Housing Planning Guide. Third reprint. HUD1582B-FHEO. March, 1996. Available online at

www.hud.gov/offices/fheo/images/fhpg.pdf.

HUD. Memorandum from Assistant Secretary for CPD

Cardell Cooper and Assistant Secretary for FHEO Eva Plaza.

Available online at http://www.hud.gov/offices/fheo/

library/AFFHnotice.pdf. This Memorandum provides guidance on affirmatively furthering fair housing and the accessibility requirements of the Fair Housing Act.

HUD. Memorandum from General Deputy Assistant

Secretary for CPD Nelson Bregon and Assistant Secretary for

FHEO Carolyn Peoples. Available online at

www.hud.gov/offices/fheo/library/finaljointletter.pdf. This

Memorandum discusses how to conduct an analysis of impediments to fair housing choice. It supersedes previous guidance

issued by Assistant Secretaries Cooper and Plaza on February

14, 2000.

About the Series:

Fair Housing for HOME

Program Participants

The Fair Housing for HOME Program Participants series is

designed to help PJs and their housing partners understand

and comply with Federal fair housing laws and regulations in

the implementation of their HOME Program activities. In

general, these laws:

• Prohibit discrimination in housing and housing-related

transactions by PJs and their housing partners; 

• Require PJs to affirmatively further fair housing;

• Prescribe design and construction standards to ensure

equal access to housing by persons with disabilities; 
Affirmatively Furthering Fair Housing

9

• Promote the use of minorities and women, and minority

and women business enterprises in Federally funded

contracting opportunities; 

• Encourage the creation of employment opportunities for

low-income residents of neighborhoods where HOME

Program activities are undertaken; and

• Require the implementation of affirmative marketing

strategies and outreach to those segments of the populations identified as least likely to apply for the housing

without such outreach.

The Fair Housing for HOME Program Participants series contains

the following publications:

• Fair Housing for HOME Program Participants:

Understanding the Basics. This publication identifies the

protected classes, describes the nondiscrimination

provisions of the fair housing laws, and defines

prohibited discriminatory actions. In addition, it briefly

discusses issues related to affirmatively furthering fair

housing and the provision of housing for persons with

disabilities. (These topics are explored in detail in

subsequent publications of this series). All subsequent

publications are based on the assumption that the reader

is familiar with the fundamental requirements outlined

in this publication.

• Fair Housing for HOME Program Participants:

Affirmatively Furthering Fair Housing describes a PJ’s obligation to affirmatively further fair housing and reviews

eligible uses of HOME Program funds to promote fair

housing. 

• Fair Housing for HOME Program Participants: Creating

Economic Opportunity reviews the requirements designed

to create economic opportunities for minorities and

women, minority and women business enterprises, and

low- and very low-income residents living in HOME

project areas.

• Fair Housing for HOME Program Participants: Promoting

Fair and Accessible Housing Opportunities in HOME Projects

describes the applicability of fair housing laws to rental

and homeownership housing development, new construction, and rehabilitation. This publication provides

guidance on site and neighborhood standards, recordkeeping, and design and construction requirements to

ensure accessibility. 

• Fair Housing for HOME Program Participants: TenantBased Rental Assistance discusses tenant selection criteria

and procedures and reasonable accommodations and

modifications under the Fair Housing Act and program

accessibility under Section 504.

The Fair Housing for HOME Program Participants series will help

managers, program staff, and procurement staff of the PJ and

its housing partners. These entities must comply with fair

housing requirements when administering programs and

developing projects to be funded by the HOME Program. 

The Fair Housing for HOME Program Participants series focuses

on Federal fair housing laws related to housing development

and management that are implemented and monitored by

HUD. It provides guidance on how PJs and their housing

partners can comply with (1) the nondiscrimination mandates

of the civil rights laws (focusing primarily on the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973), and

Title II of the Cranston-Gonzalez National Affordable

Housing Act of 1990; and (2) the affirmatively furthering fair

housing mandate of Section 808(e)(5) of the Fair Housing Act.

The HOME Program is also subject to Title VI of the Civil

Rights Act of 1964 and its implementing regulations at 24

CFR Part 1, which prohibit recipients of Federal assistance

from discriminating on the basis of race, color, and national

origin. 

The series does not provide guidance on state and local fair

housing requirements, which may differ from Federal laws.

PJs and their housing partners that are unfamiliar with state

and local requirements can identify resources through the

National Fair Housing Advocate OnLine agency finder at

www.fairhousing.com. Likewise, the series does not provide

guidance on the Americans with Disabilities Act of 1990

(ADA) requirements, which are administered by the

Department of Justice (DOJ). State and local governments

are subject to ADA requirements. PJs can get more information about their obligations from the DOJ website at

www.usdoj.gov/crt/ada/adahom1.htm. 

Readers that have specific questions about interpretation of

civil rights or fair housing laws are encouraged to seek the

advice of legal counsel.

HOME Model Program Guides

Fair Housing for HOME Program Participants is a HOME model

program guide published by HUD’s Office of Affordable

Housing Programs. The HOME model program guides

provide technical assistance to jurisdictions that are

implementing HOME Program activities. Additional copies of

any of the publications in the Fair Housing for HOME Program

Participants series, as well as other HOME model program

guides, can be obtained from Community Connections

Information Center at 1-800-998-9999. For a list of available

model program guides, visit the HOME Program web site at

www.hud.gov/offices/cpd/affordablehousing/library/

modelguides/index.cfm.

For more information about the HOME Program, visit

www.hud.gov/offices/cpd/affordablehousing/programs/home/

index.cfm.


U.S. Department of Housing and Urban Development

Office of Community Planning and Development

HUD-2005-10-CPD

May 2005
1

UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U RENTAL AND HOMEOWNERSHIP

DEVELOPMENT U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE

BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANTBASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY

FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U

RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING

FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U RENTAL AND

Administering Tenant-Based

Rental Assistance

Fair Housing for HOME Program Participants

Administering Tenant-Based

Rental Assistance

“Fair Housing for HOME Program Participants: Administering Tenant-Based Rental Assistance” explores the fair housing-related circumstances

that affect housing providers that house tenants receiving HOME-funded tenant-based rental assistance (TBRA), but who do not receive any other

HOME Program funds. This publication highlights fair housing issues that arise when HOME funds are used to administer TBRA programs.

The publication covers applicant selection criteria; establishing preferences for persons with disabilities; and understanding the reasonable accommodations and modifications requirements that apply to housing occupied by persons receiving HOME Program TBRA. This publication does not provide a full overview of the requirements of the Fair Housing Act and other civil rights laws affecting the HOME Program. 

This publication is part of the series “Fair Housing for HOME Program Participants.” The purpose of the series is to provide technical assistance to

participating jurisdictions (PJs) and their housing partners on the fair housing laws and regulations that apply to HOME Program activities.

Specifically, the series reviews the applicable Federal fair housing laws and regulations, illustrates best practices in promoting fair housing, and

highlights PJ responsibilities for ensuring compliance with fair housing requirements. For purposes of this publication, “housing providers” refer to

those who house tenants receiving HOME assistance, but who otherwise do not receive HOME Program funds or other Federal assistance. The PJ’s

“housing partners” include all persons and entities who use HOME Program funds, including the PJ and its recipients, state recipients, contractors,

subcontractors, developers (including community housing development organizations), owners, and management agents. 

Fair Housing in Tenant-Based

Rental Assistance Programs

Private landlords who house tenants receiving HOME

Program tenant-based rental assistance (TBRA), but who do

not receive any other HOME Program assistance, are subject

to the requirements of the Fair Housing Act, as well as the

requirements of the HOME Program. In general, these

requirements ensure that housing and housing-related services

are provided in a manner that does not discriminate against

persons based on race, color, religion, sex, familial status,

national origin, age, or disability.

When administering a HOME tenant-based rental assistance

program, PJs should be sure that participating housing

providers understand their fair housing obligations and comply with fair housing laws. The companion publication, Fair

Housing for HOME Program Participants: Understanding the

Basics, provides a fuller discussion of these issues in general

terms. This publication explores these fair housing requirements as they apply specifically to private rental housing

providers. This publication includes a discussion of:

• Selecting tenants based on standard, written criteria;

• Providing preferences for persons with disabilities in a

manner consistent with fair housing laws and

regulations; and

• Reasonable modifications and accommodations.

In addition, although private housing providers participating

in a HOME-funded TBRA program are not subject to the

requirements of Section 504 of the Rehabilitation Act of 1973,

the PJ and its recipients and subrecipients are. This publication discusses how to administer a TBRA in a manner that is

accessible to persons with disabilities, in accordance with that

law.

Applicant Selection Criteria

When implementing tenant-based rental assistance programs,

the HOME Program laws and regulations require the PJ or its

state recipient, subrecipient, or contractor (the “TBRA

administrator”) to establish written tenant selection criteria.

The primary purpose of the written criteria is to establish a

sound basis for tenant selection, and an accompanying process

that is nondiscriminatory in effect. This helps to ensure that

the distribution of this scarce resource is fair and equitable and

comports with the requirements of the Fair Housing Act,
Fair Housing for HOME Program Participants

2

Title VI of the Civil Rights Act, and Section 504 of the

Rehabilitation Act of 1973.

Although generally, PJs must treat all income-eligible persons

equally in administering their TBRA programs, the HOME

statute and regulations permit PJs to target their TBRA

resources in order to address the housing needs of specific populations, such as large families or persons with disabilities.

When a PJ chooses to implement preferences for certain

groups, this must be articulated in the PJ’s Consolidated Plan.

Generally, applicant selection procedures that promote fair

treatment of all applicants will:

• Clearly articulate any locally established preferences;

• Identify applicants who meet the selection criteria on a

lottery or a “first come, first served” basis in accordance

with preference policies;

• Provide for the selection of TBRA recipients from a written waiting list in the chronological order of application,

insofar as is practicable;

• Provide immediate written notification to any rejected

applicant of the specific grounds for rejection and maintain records of the rejection; and

• Provide for reasonable accommodations for persons with

disabilities to ensure they have equal access to the selection process.

Preferences for Persons with

Disabilities

In developing selection criteria for TBRA, the HOME

Program permits PJs to establish a preference for persons with

special needs. In addition, it may offer, in conjunction with

TBRA, non-mandatory services that may be appropriate for

persons with a special need or a particular disability. The PJ

may design its program so that it serves the entire community

but gives a preference for persons with a special need(s), or it

may limit its program to serve only special purpose or specific

housing need(s), such as elderly tenants, large families, or a

special needs population that has been identified in the PJ’s

Consolidated Plan. A PJ’s special needs preferences may

target a specific category of individuals with disabilities (e.g.,

persons with HIV/AIDS or chronic mental illness) if the

specific category is identified in the PJ’s Consolidated Plan as

having unmet housing needs and the preference is required to

narrow the gap in benefits and services received by such

persons. The PJ’s written selection criteria should explain

what the preferences are and how the preferences will be

implemented.

HOME TBRA is subject to the provisions of certain fair housing requirements, and preferences must be administered in a

nondiscriminatory manner. This means that if a special needs

preference is established, affirmative marketing of the availability of TBRA across all protected classes within the preference should be carried out. The selection of TBRA recipients is

not subject to the HOME Program affirmative marketing

procedures that must be adopted by the PJ for projects with

five or more HOME-assisted units.

When a PJ chooses to serve a particular group of persons

with specialized housing needs in its TBRA program, the PJ

cannot then restrict access to its other programs for the identified group. For example, a PJ may not determine that since it

will provide a preference to persons with special needs under

its TBRA program, it will therefore limit participation by

those special needs persons in its homeownership or other

affordable housing programs or forms of assistance. In addition, if a PJ has a TBRA preference for persons within a class

or category of disability (such as persons with HIV/AIDS or

chronic mental illness), the PJ cannot discriminate against

persons who fall within that class based on the presence of

other disabilities.

Reasonable Modifications and

Accommodations

In a TBRA program, the tenant is the beneficiary of HOME

Program assistance, not the housing provider. When a tenant

chooses to use his or her HOME TBRA in a privately-owned

unit that has not received any other HOME funds, or any

other Federal assistance, the provisions of the Fair Housing

Act apply to the housing provider; however, the additional

requirements of Section 504 of the Rehabilitation Act of 1973

(Section 504) do not apply to the housing provider. If the

tenant chooses to use his or her TBRA in a unit that is

HOME-funded, or one that receives other Federal assistance,

then the additional requirements of Section 504 also apply to

the housing provider. 

Under the Fair Housing Act, housing providers must make

reasonable accommodations for applicants or residents with

disabilities to enable them to fully enjoy or use their dwelling

and any related amenities afforded to other residents, in accordance with 24 CFR 100.203 and 100.204. In addition, housing providers must permit tenants to make and pay for structural modifications to units or common areas that are needed

to allow them to have effective use of the housing program. 
Administering Tenant-Based Rental Assistance

3

What is a Reasonable Accommodation?

A reasonable accommodation is a change, exception, or adjustment to rules, policies, practices, or services, when such

changes may be necessary to allow a person with a disability

to have equal opportunity to enjoy or use a dwelling, including public and common use areas. The use and enjoyment of

the dwelling would include the person’s right to:

• Participate fully in a program;

• Take advantage of a service;

• Live in a dwelling; or

• Perform a job.

Each accommodation request must be assessed on a case-bycase basis to determine if it is reasonable. (This will be

discussed further in the section of this publication entitled Can

an Accommodation or Modification Request Be Denied?) The

following examples illustrate some of the types of

accommodations that generally are required:

• A building owner has a “no animals” policy. She cannot

deny the use of an assistance animal to an applicant or

tenant with a disability, because the applicant would be

unable to use or enjoy the dwelling unit without the

assistance animal. See Exhibit 1 for a detailed discussion

of assistance animals.

• A large multifamily rental development has a parking

lot that is available on a “first come, first served” basis.

There are a limited number of parking spaces near the

entrance. Due to a mobility impairment, an applicant

cannot walk more than a short distance and requests a

reserved spot near the entrance. The housing provider

must honor this request, since without a parking space

within close walking distance to his unit, the applicant

would not be able to reside in the building. 

Exhibit 1

Assistance Animals as a Reasonable Accommodation

Assistance animals are not pets. They are animals that work, provide assistance, or perform tasks for the benefit of a

person with a disability, or animals that provide emotional support that alleviates one or more identified symptoms or

effects of a person’s disability. Assistance animals—also referred to as “service animals,” “assistive animals,” “support

animals,” or “therapy animals”—perform many disability-related functions, including but not limited to guiding

individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing

minimal protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or

providing emotional support to persons with disabilities who have a disability-related need for such support.

A housing provider may not refuse to allow a person with a disability to have an assistance animal merely because the

animal does not have formal training. Some, but not all, animals that assist persons with disabilities are professionally

trained. Other assistance animals are trained by the owners themselves and, in some cases, no special training is

required. The question is whether or not the animal performs the disability-related assistance or provides the disabilityrelated benefit needed by the person with the disability.

A housing provider’s refusal to modify or provide an exception to a “no pets” rule or policy to permit a person with a

disability to use and live with an assistance animal would violate Section 504 of the Rehabilitation Act and the Fair

Housing Act unless (1) the animal poses a direct threat to the health or safety of others that cannot be reduced or

eliminated by a reasonable accommodation, (2) the animal would cause substantial physical damage to the property of

others, (3) the presence of the assistance animal would pose an undue financial and administrative burden to the

provider, or (4) the presence of the assistance animal would fundamentally alter the nature of the provider’s services.

The fact that a person has a disability does not automatically entitle him or her to an assistance animal. There must be

a relationship between the person’s disability and his or her need for the animal.

A housing provider may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing

the applicant or tenant to keep the assistance animal. However, if the individual’s assistance animal causes damage to

the unit or the common areas of the dwelling, at that time, the housing provider may charge the individual for the cost

of repairing the damage if the provider regularly charges tenants for any damage they cause to the premises.
Fair Housing for HOME Program Participants

4

1 Section 504 and its implementing regulations at 24 CFR Part 8 obligate recipients of Federal financial assistance to make their programs 

accessible to persons with disabilities, including providing a policy, practice, or rule modification, or an accessible feature in a unit or common 

area, if needed as an accommodation by an applicant or tenant with a disability, unless doing so would result in a fundamental alteration in the

nature of its program or an undue financial and administrative burden. See 24 CFR 8.4, 8.20, 8.24, and 8.33 for further requirements and 

guidance.

• A rental management firm typically posts buildingrelated notices on a bulletin board in the elevator bay,

but the notices are not readily visible to a tenant who

uses a wheelchair. A reasonable accommodation might

be to either lower the bulletin board, or to mail the tenant a copy of all posted notices.

What is a Modification?

Under the Fair Housing Act, a modification is any structural

change to the unit that is necessary to allow a person with a

disability equal opportunity to enjoy or use a dwelling, including public and common use areas. The use and enjoyment of

the dwelling would include the person’s right to:

• Participate fully in a program;

• Take advantage of a service;

• Live in a dwelling; or

• Perform a job.

Modifications might include:

• Access ramps for a person who uses a wheelchair;

• Grab bars in a bathroom;

• Visual doorbells and fire alarms;

• Widening doorways for wheelchair access; and 

• Altering a walkway to provide access to a public or

common area.

Who Pays for an Accommodation or

Modification?

Under the Fair Housing Act, a housing provider is required to

provide and pay for accommodations, but is not required to

pay for modifications, or structural changes to the development.1

Accommodations

Typically, an accommodation can be made with little or no

cost to the housing provider. However, in some circumstances

an applicant or resident will require an accommodation that

has a cost and is necessary to the full use and enjoyment of the

property by the tenant. These examples illustrate some

accommodations that might have a cost:

• A person who uses a wheelchair requires a handicapped

parking space, including curb cuts, painting, and signage. Parking arrangements are generally considered

accommodations, not structural changes.

• A person with limited use of her arms is unable to use

the dumpster provided by the housing provider and

requires assistance with disposing of trash. Depending

upon the circumstances, it may be a reasonable

accommodation for the housing provider to provide

trash pick-up service, even if there is some cost for

maintenance staff time. 

In these cases, the housing provider is obligated to bear the

cost of the accommodation, provided it does not impose an

undue financial and administrative burden on the housing

provider. (This will be discussed further in the section of this

publication entitled Can an Accommodation or Modification

Request Be Denied?) 

Modifications

Housing providers must allow reasonable modifications to a

property, including the interior and exterior of the dwelling

and public and common use areas, to enable a person with a

disability to have full use and enjoyment of the premises. The

housing provider is not required to pay for the modification(s).

If the housing provider wishes to make these modifications on

behalf of the tenant, the cost of these modifications can be

passed on to the tenant, either as a direct payment to the

housing provider, or in a series of payments over time. The

tenant can also arrange to have these modifications made on

his or her own. 

Prior to granting a request to make a modification, a housing

provider can impose certain conditions on the tenant:

Satisfactory work. A housing provider may condition permission for a modification on the tenant or applicant providing a

description of the proposed work, as well as reasonable assurances that the work will be done in a workmanlike manner,

and that required building permits will be obtained.

Restoration of unit. If the modification might interfere with a

subsequent tenant’s use and enjoyment of the unit, approval

can be conditioned on the tenant or applicant agreeing to

restore the interior of the unit to its original condition (normal

wear and tear excepted) prior to moving out.

In general, the cost of this “restoration” can be passed on to

the tenant. In some cases, it is reasonable for the housing
Administering Tenant-Based Rental Assistance

5

provider to require a tenant or applicant to pay into an

interest bearing escrow account, over a reasonable period, a

reasonable amount of money (not to exceed the amount

necessary) to ensure that funds are available for the agreed

upon restoration(s). Interest would accrue to the tenant. The

decision to require that money be placed in an escrow account

should be based on the following factors: (1) the extent and

nature of the proposed modification(s); (2) the expected

duration of the lease; (3) the credit and tenancy history of the

individual tenant; and (4) other information that may bear on

the risk to the landlord that the premises will not be restored.

The housing provider may not increase the customarily

required security deposit for the tenant with a disability.

Further, the housing provider cannot require the removal of

modifications to public spaces and common areas. 

Two examples illustrate this issue:

• A person who uses a wheelchair requests and receives

permission from her landlord to widen the doorway to

her bathroom. The tenant hires and pays for a contractor to make the necessary modification. When the tenant moves out, it would be unreasonable for the landlord to ask the tenant to have the doorway restored to

its original condition, since the widened doorway will

not interfere with a subsequent tenant’s use and enjoyment of the unit. 

• A person with a hearing impairment requests the installation of visual doorbells in his unit, at his own expense.

The housing provider agrees. When this tenant moves

out, it would be reasonable for the housing provider to

ask the tenant to remove the visual doorbell, as this

modification might interfere with a subsequent tenant’s

use and enjoyment of the unit.

The Fair Housing Act provides that covered multifamily

dwellings built for first occupancy after March 13, 1991, shall

be designed and constructed to meet certain minimum accessibility and adaptability standards. If the structural alteration(s) needed by the tenant is one that should have already

existed in the unit or public and common area, then the housing provider may be responsible for providing and paying for

the requested structural alteration(s). However, if the

requested structural alteration(s) is not a feature of accessible

design that should have already existed in the building, pursuant to the design and construction requirements under then

Fair Housing Act, then the tenant would be responsible for

paying for the cost of the structural alteration(s) as a reasonable modification. 

Can an Accommodation or Modification

Request Be Denied?

Housing providers are required to make reasonable accommodations, and permit modifications to the property, when these

accommodations and modifications are necessary. To be “necessary,” there must be an identifiable relationship, or nexus,

between the requested accommodation or modification, and

the individual’s disability. For instance, if a tenant has difficulty walking, it would be reasonable for her to make a

request that a parking space near her unit be reserved for her

use. On the other hand, if this tenant were to request an

accommodation in the form of an exception to the “no animals” policy in order to keep a cat, and the tenant does not

provide evidence that the cat is needed as an accommodation

for her disability, the request would not have an identifiable

relationship to the tenant’s disability, and therefore would not

need to be accommodated. 

In determining whether or not there is a nexus between the

disability and the requested accommodation or modification,

housing providers can request documentation of the existence

of a disability, and the need for requested accommodations or

modifications. Typically, this documentation might be in the

form of a letter from a doctor or other professional. Housing

providers cannot, however, ask specific questions about the

nature of a person’s disability. Housing providers’ decisions

about reasonable accommodations and modifications should

be consistent, justifiable, and documented.

The PJ or its housing partner must provide accommodations

unless they are determined to be unreasonable because:

• Doing so would result in a fundamental alteration in the

nature of the program, changing the essential nature of

the provider’s operations, or 

• Doing so would result in an undue financial and administrative burden. The financial resources of the housing

provider, the cost of the accommodations, the benefits to

the requestor of the requested accommodation, and the

availability of other, less expensive alternative accommodations that would effectively meet the applicant’s or

resident’s needs must be considered in determining

whether or not a requested accommodation poses an

undue financial and administrative burden.

If a housing provider refuses the requested accommodation

because it is not reasonable, the housing provider should

discuss with the requestor whether there is an alternative

accommodation that would effectively address the requestor’s

disability-related needs without a fundamental alteration of
Fair Housing for HOME Program Participants

6

the provider’s operations and without imposing an undue

financial and administrative burden. In doing so, the housing

provider should give primary consideration to the

accommodation requested by the tenant or applicant because

the individual with a disability is most familiar with his or her

disability and is in the best position to determine what type of

aid or service will be effective. If the housing provider

suggests an alternative accommodation, the tenant may reject

it if he or she feels it does not meet his or her needs. If an

alternative accommodation would effectively meet the

requestor’s disability-related needs, and is reasonable, the

provider must grant it.

PJs should encourage housing providers who have tenants

receiving TBRA to establish and implement consistent procedures related to reasonable accommodations and modifications, or PJs may want to establish these for all participating

housing providers. HUD strongly recommends that owners

include statements about the right of individuals with disabilities to request reasonable accommodations in all written

notices given to applicants and tenants. 

TBRA Program Accessibility

Although the housing providers in a TBRA program are not

subject to Section 504, the PJ and its TBRA administrator are

subject to Section 504 when they administer a TBRA program

with HOME funds. The TBRA program must be administered in a manner that ensures that the program is readily

accessible to, and usable by, persons with disabilities. In its

administration of the TBRA program, the PJ or TBRA administrator should take the following steps to ensure that it is

operating its TBRA program in a manner that makes the program accessible to persons with disabilities:

• Ensure that the in-take office of the TBRA program is in

a building that is accessible to persons with mobility disabilities;

• Distribute notices of the availability of housing assistance to eligible individuals with disabilities;

• Make notices and application forms available in a variety

of formats, to ensure that persons with disabilities

receive information about the program, and are able to

access the program (see the following section);

• Provide information about the availability of accessible

units to applicants who require accessible units, where

known; and

• Provide information on counseling available to help

those in need of accessible units to find them.

In addition, PJs should be aware that they may need to

provide reasonable accommodations to individuals with

disabilities in order to make it possible for them to participate

in the TBRA program. Such accommodations may include

providing higher rents and sufficient assistance to enable a

person with a disability who needs a live-in aide to rent a unit

with an extra bedroom, in addition to that needed by the

family.

PJ Communications with Individuals with

Disabilities

As recipients of Federal financial assistance, PJs are affirmatively obligated under Section 504 to take appropriate steps to

ensure effective communication with applicants, beneficiaries,

and members of the public who have disabilities. This obligation includes, but is not limited to, the following:

• Furnishing auxiliary aids where necessary, such as sign

language interpreters, TTY devices, note readers, largesized written materials, Braille materials, audio recordings, and other similar services and devices; and

• Having a TTY or equally effective communication system available if the PJ communicates with the public by

telephone.

Note, the PJ is not required to take any action to meet this

obligation, if it will result in a fundamental alteration of its

program or be an undue financial and administrative burden.

Conclusion

When administering a HOME TBRA program, PJs and their

housing partners should take necessary measures to administer

the program in a nondiscriminatory manner. Staff should be

familiar with the fair housing requirements applicable to all

private owners, and work with participating housing providers

to ensure compliance to these rules. Where TBRA is used to

assist special populations of the jurisdiction to meet unmet

housing needs, these preferences should be publicized through

the Consolidated Plan and administered in a nondiscriminatory manner. Housing providers must make all reasonable

accommodations and permit tenants to make modifications

that are necessary for full use and enjoyment of their dwelling.

PJs should be aware of their obligations to provide reasonable

accommodations to enable effective participation in their programs by persons with disabilities and their affirmative obligations to have effective communications.
Administering Tenant-Based Rental Assistance

7

Additional Resources

The regulations governing the HOME Program can be found

at 24 CFR Part 92. The home page for the HOME Program

is www.hud.gov/offices/cpd/affordablehousing/programs/

home/. From this site, one can access the statute, regulations,

technical guidance, training opportunities, and a wealth of

resources that facilitate the operation of the HOME Program.

The Fair Housing Act can be found at www.usdoj.gov/crt/

housing/title8.htm. Its implementing regulations are at 24

CFR Part 100, et. al. and can be found online at

www.archives.gov/federal_register/index.html.

HUD’s Fair Housing and Equal Opportunity Division provides ample guidance on the requirements of the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973. This

information can be accessed from its homepage at

www.hud.gov/offices/fheo/index.cfm or its library listing at

www.hud.gov/library/bookshelf09/.

For guidance on provision of reasonable accommodations

under the Fair Housing Act, see the Joint Statement of the

U.S. Department of Housing and Urban Development and

the U.S. Department of Justice, Reasonable Accommodations

Under the Fair Housing Act, issued May 17, 2004. This statement is available online at www.hud.gov/offices/fheo/

library/huddojstatement.pdf.

For general guidance on administering a tenant-based rental

assistance program with HOME funds, see the HOME

Program model guide Tenant-Based Rental Assistance: A HOME

Program Model, U.S. Department of Housing and Urban

Development, HUD 1658-CPD, January 1997. This, and all

of the HOME Program model guides, are available from the

Community Connections Information Center, telephone

1-800-998-9999. A complete list of available model program

guides is provided on the HOME Model Program Guide

website at www.hud.gov/offices/cpd/affordablehousing/

library/modelguides/index.cfm.

About the Series:

Fair Housing for HOME

Program Participants

The Fair Housing for HOME Program Participants series is

designed to help PJs and their housing partners understand

and comply with Federal fair housing laws and regulations in

the implementation of their HOME Program activities. In

general, these laws:

• Prohibit discrimination in housing and housing-related

transactions by PJs and their housing partners; 

• Require PJs to affirmatively further fair housing;

• Prescribe design and construction standards to ensure

equal access to housing by persons with disabilities; 

• Promote the use of minorities and women, and minority

and women business enterprises in Federally funded contracting opportunities; 

• Encourage the creation of employment opportunities for

low-income residents of neighborhoods where HOME

Program activities are undertaken; and

• Require the implementation of affirmative marketing

strategies and outreach to those segments of the populations identified as least likely to apply for the housing

without such outreach.

The Fair Housing for HOME Program Participants series contains

the following publications:

• Fair Housing for HOME Program Participants:

Understanding the Basics. This publication identifies the

protected classes, describes the nondiscrimination

provisions of the fair housing laws, and defines

prohibited discriminatory actions. In addition, it briefly

discusses issues related to affirmatively furthering fair

housing and the provision of housing for persons with

disabilities. (These topics are explored in greater detail

in subsequent publications of the series.) All subsequent

publications are based on the assumption that the reader

is familiar with the fundamental requirements outlined

in this publication.

• Fair Housing for HOME Program Participants: Affirmatively

Furthering Fair Housing describes a PJ’s obligation to

affirmatively further fair housing and reviews eligible

uses of HOME Program funds to promote fair housing. 

• Fair Housing for HOME Program Participants: Creating

Economic Opportunity reviews the requirements designed

to create economic opportunities for minorities and

women, minority and women business enterprises, and

low- and very low-income residents living in HOME

project areas.

• Fair Housing for HOME Program Participants: Promoting

Fair and Accessible Housing Opportunities in HOME Projects

describes the applicability of fair housing laws to rental

and homeownership housing development, new construction, and rehabilitation. This publication provides

guidance on site and neighborhood standards, recordkeeping, and design and construction requirements to

ensure accessibility. 

• Fair Housing for HOME Program Participants: TenantBased Rental Assistance discusses tenant selection criteria

and procedures and reasonable accommodations and
Fair Housing for HOME Program Participants

8

modifications under the Fair Housing Act, and program

accessibility under Section 504.

The Fair Housing for HOME Program Participants series will help

managers, program staff, and procurement staff of the PJ and

its housing partners. These entities must comply with fair

housing requirements when administering programs and

developing projects to be funded by the HOME Program. 

The Fair Housing for HOME Program Participants series focuses

on Federal fair housing laws related to housing development

and management that are implemented and monitored by

HUD. It provides guidance on how PJs and their housing

partners can comply with (1) the nondiscrimination mandates

of the civil rights laws (focusing primarily on the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973), and

Title II of the Cranston-Gonzalez National Affordable

Housing Act of 1990; and (2) the affirmatively furthering fair

housing mandate of Section 808(e)(5) of the Fair Housing Act.

The HOME Program is also subject to Title VI of the Civil

Rights Act of 1964 and its implementing regulations at 24

CFR Part 1, which prohibit recipients of Federal assistance

from discriminating on the basis of race, color, and national

origin. 

The series does not provide guidance on state and local fair

housing requirements, which may differ from Federal laws.

PJs and their housing partners that are unfamiliar with state

and local requirements can identify resources through

National Fair Housing Advocate Online at

www.fairhousing.com. Likewise, the series does not provide

guidance on the Americans with Disabilities Act of 1990

(ADA) requirements, which are administered by the

Department of Justice (DOJ). PJs are subject to ADA

requirements, and can get more information about their obligations from the DOJ website at www.usdoj.gov/crt/ada/

adahom1.htm. 

Readers that have specific questions about interpretation of

civil rights or fair housing laws are encouraged to seek the

advice of legal counsel.

HOME Model Program Guides

Fair Housing for HOME Program Participants is a HOME model

program guide published by HUD’s Office of Affordable

Housing Programs. The HOME model program guides provide technical assistance to jurisdictions that are implementing

HOME Program activities. Additional copies of any of the

publications in the Fair Housing for HOME Program Participants

series, as well as other HOME model program guides, can be

obtained from Community Connections Information Center at

1-800-998-9999. For a list of available model program

guides, visit the HOME Program web site at

www.hud.gov/offices/cpd/affordablehousing/library/ modelguides/index.cfm. 

For more information about the HOME Program, visit

www.hud.gov/offices/cpd/affordablehousing/programs/home/

index.cfm.



U.S. Department of Housing and Urban Development

Office of Community Planning and Development

HUD-2005-10-CPD

May 2005
1

UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U RENTAL AND HOMEOWNERSHIP

DEVELOPMENT U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE

BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANTBASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY

FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U

RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING

FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U RENTAL AND

Creating Economic

Opportunity

Fair Housing for HOME Program Participants

Creating Economic

Opportunity

The HOME Program requires that participating jurisdictions (PJs) provide equal access to the economic opportunities generated by the use of

HOME Program funds for low- and very low-income residents, and firms that employ low- and very low-income residents. In addition, HOME

Program funds must provide opportunities for minorities and women, entities owned by minorities and women, and minority and women business

enterprises. This publication, “Creating Economic Opportunity,” provides an overview of the employment, training, and contracting requirements

that apply when HOME funds are used. It provides guidance to HOME PJs on how to implement these economic opportunity requirements and

reviews the PJ’s obligations to oversee their housing partners’ compliance with these laws and regulations.

This publication is part of the series “Fair Housing for HOME Program Participants.” The purpose of the series is to provide technical assistance

to PJs and their housing partners on the fair housing laws and regulations that apply to HOME Program activities. Specifically, the series reviews

the applicable Federal fair housing requirements, illustrates best practices in promoting fair housing, and highlights PJ responsibilities for ensuring

compliance with fair housing requirements.

For purposes of this publication, the PJ’s “housing partners” include all persons and entities who use HOME Program funds, including the PJ and

its recipients, state recipients, contractors, subcontractors, developers (including community housing development organizations), owners, and

management agents. Unless otherwise specified, the requirements discussed herein extend to the PJ and all its housing partners. In addition, the

economic opportunity requirements apply to many different sources of U.S. Department of Housing and Urban Development (HUD) assistance,

however, this publication discusses these requirements in terms of the HOME Program only.1

Economic Opportunity

Requirements Overview

HOME PJs and their housing partners must comply with

Federal requirements designed to provide access to economic

opportunities generated with HOME funds. Generally, economic opportunity requirements are targeted to: 

• Low- and very low-income persons, and the businesses

that employ them, through Section 3 of the Housing

and Urban Development Act of 1968, as amended

(“Section 3”) and the applicable regulations at 24 CFR

Part 135;

• Minority business enterprises and women business enterprises (MBE/WBEs), through notification and solicitation activities specified in procurement regulations at 24

CFR 85.36(e), and incorporated into the HOME

Program by reference at 24 CFR 92.350; and

• Minorities and women, and entities owned by minorities

and women, through a minority outreach program

established and overseen by the PJ, pursuant to the

HOME Program regulation at 24 CFR 92.351(b).

Together, these requirements impact training, employment,

and contracting activities undertaken by PJs and their housing

partners. The MBE/WBE outreach requirements also govern

purchasing practices. Section 3 does not apply to purchasing

practices, however, unless the purchase includes labor, such as

installation. Although these requirements are generally

characterized collectively as “the economic opportunity

requirements,” these requirements are distinct. Note, Section

3 is race neutral. It is based solely on income and

geography—that is, proximity to the project site.

1 Section 3 “covered assistance” includes Public and Indian housing development assistance provided pursuant to Sections 5, 9 and/or 14 of the 

1937 Act; and assistance provided under any HUD housing or community development program that meets the applicability criteria described

in this publication, in accordance with 24 CFR 135.5.
Fair Housing for HOME Program Participants

2

Section 3

The purpose of Section 3 of the Housing and Urban

Development Act of 1968, as amended (“Section 3”) is to

ensure that “the employment and other economic opportunities generated by Federal financial assistance for housing and

community development programs shall, to the greatest

extent feasible, be directed toward low- and very low-income

persons, particularly those who are recipients of government

assistance for housing.”2

The implementing regulations for Section 3 are found at 24

CFR Part 135. Every HOME PJ must certify that it will

comply with Section 3 as part of its Consolidated Plan. 

Applicability

Section 3 applies to projects that are a certain scope and size

(in terms of dollar amount), as follows:

Scope

Section 3 requirements apply to work arising in connection

with the construction or rehabilitation of a HOME project,

regardless of how the HOME dollars are actually spent. 

Once construction is completed, contracts related to the

operation (that is, the rental management) of the completed

housing development are not subject to Section 3. In addition,

Section 3 is not applicable when HOME Program funds are

invested in direct assistance to homebuyers, tenant-based

rental assistance, and administration because these are not

construction activities. Further, Section 3 does not apply to

homeowner rehabilitation projects because the low-income

homeowner is the beneficiary of HOME assistance, not a

recipient.

Size

Two monetary thresholds apply to Section 3:

• A PJ or its state recipient or subrecipient invests more

than $200,000 in HOME funds (or HOME funds in

combination with other Section 3 covered assistance,

such as Community Development Block Grant funds)

for a HOME new construction or rehabilitation project;

and

• A contractor or subcontractor is awarded a contract for

work arising in connection with a HOME new construction or rehabilitation project in an amount that exceeds

$100,000. 

If the HOME Program investment (alone or in combination

with other Section 3 covered assistance) in a new construction

or rehabilitation project exceeds $200,000 but no single contractor is awarded more than $100,000, then the Section 3

requirements apply to the training, employment, and contracting activities of the PJ, state recipient, or subrecipient but

not to those of the contractor. This means the hiring and contracting by the PJ, state recipient, or subrecipient that is related to work arising in connection with the HOME new construction or rehabilitation project would be subject to the

Section 3 rules.

Once it is determined that Section 3 applies to a project, the

requirements apply to all contracts for work arising in connection with a HOME new construction or rehabilitation project

over $100,000, including those that are not funded with

HOME funds.

Exhibit 1 provides a number of examples to illustrate the

applicability of Section 3 to HOME new construction and

rehabilitation activities.

Section 3 Goals 

The regulations implementing Section 3 establish minimum

employment and contracting goals which, if met, and no evidence to the contrary exists, constitute compliance with

Section 3. 

Training and Employment Goals

PJs, state recipients, contractors, and subcontractors commit

to employ Section 3 residents for 30 percent of the aggregate

number of new hires for each year over the duration of the

project.3

Within the group identified as Section 3 residents, priority

consideration must be given, where possible, in the following

order: 

• Category 1: Section 3 residents (as defined in Exhibit 2)

who live in the neighborhood in which the

2 See 12 U.S.C. 1701u(b), Section 3 of the Housing and Urban Development Act, as amended.

3 Section 3 requirements do not supersede the prevailing wage rules under Davis-Bacon Act (40 USC 276a-276a-7) and articulated at 24 CFR

92.354 of the HOME rule, including rules about trainees and apprenticeships, in accordance with 24 CFR 135.11. 
Creating Economic Opportunity

3

4 See 24 CFR 135.5.

Exhibit 1

Examples to Illustrate Section 3 Applicability to HOME-Assisted New Construction and Rehabilitation

Project Funding Section 3 Applicability

New Construction— $750,000 HOME funds for Applies to all contracts for work that

homeownership construction exceed $100,000, including the

$250,000 private funds for site privately funded contracts for site

acquisition, demolition, environmental acquisition, demolition, and remediation.

remediation

New Construction— $1.5 million HOME funds Applies to all contracts for work that 

rental $800,000 private funds exceed $100,000 during course of 

project (including contracts issued prior to

construction start). 

Does not apply to maintenance and 

management contracts once facility is 

operational.

Rehabilitation— $250,000 HOME funds for site Applies to all contracts that exceed 

housing to be sold to home- acquisition $100,000, including the privately funded

buyers after rehabilitation $750,000 private funds for construction construction contract.

Rehabilitation— $150,000 HOME funds Applies to all contracts for work that 

rental $150,000 CDBG funds exceed $100,000 because the PJ has 

$1.5 million construction loan financed invested more than $200,000 (in HOME 

by state housing development agency and CDBG funds combined).

New construction— $150,000 HOME funds for the site Does not apply to any contract because

homeownership, where PJ preparation activity the PJ has invested less than $200,000

enters into contract with one $900,000 private funds for construction in HOME funds.

contractor to undertake site 

preparation activities

Rehabilitation— $200,100 HOME funds in rehabilitation Does not apply to any contract because 

homeowner-occupied program—all individual contracts are Section 3 does not apply to homeowner 

less than $100,000 rehabilitation.

Exhibit 2

What is a “Section 3 Resident?”

For the purposes of the HOME Program, a Section 3 resident is:

U A low-income resident (whose annual household income is at or below 80 percent of area median income as

determined by HUD) of the metropolitan area or non-metropolitan county in which the HOME Program funds are

expended.

U A very low-income resident (whose annual household income is at or below 50 percent of area median income as

determined by HUD) of the metropolitan area or non-metropolitan county in which the HOME Program funds are

expended.4
Fair Housing for HOME Program Participants

4

5 See 24 CFR 92.2.

6 See 24 CFR 135.34(a)(2).

7 See 24 CFR 135.36(c)(2)

HOME-funded project is located. For purposes of the

HOME Program, the neighborhood is the geographic

location designated in the jurisdiction’s comprehensive

plans, ordinances, or other local documents. It cannot

encompass the entire area of a unit of local government,

unless the local government has a population less than

25,000.5

• Category 2: Participants in HUD Youthbuild programs

(programs receiving assistance under subtitle D of Title

IV of the Cranston-Gonzalez National Affordable

Housing Act, as amended).

• Category 3: Other Section 3 residents. This would

include low-income residents of the metropolitan area or

non-metropolitan county who do not reside in the

neighborhood, as defined in Category 1.6

Contracting Goals

PJs and their state recipients, subrecipients, contractors, and

subcontractors must commit to award contracts to Section 3

business concerns (as defined in Exhibit 3), as follows:

• At least ten percent of the total dollar amount of all

Section 3 covered contracts over $100,000, for building

trades work arising in connection with HOME rehabilitation and new construction projects; and 

• At least three percent of the total dollar amount of all

other Section 3 covered contracts—that is, contracts for

any work other than building trade work. This might

include, for example, landscaping or professional services

contracts such as architectural, environmental, or legal

services.

PJs, state recipients, subrecipients, contractors, subcontractors,

owners, and developers (Section 3 covered entities) must give

priority consideration, where possible, to Section 3 business

concerns, in the following order of preference: 

• Category 1: Section 3 business concerns that provide

economic opportunities for Section 3 residents in the

neighborhood in which the HOME-funded project is

located.

• Category 2: Applicants selected to carry out HUD

Youthbuild programs.

• Category 3: Other Section 3 business concerns.7

Failure to Meet Section 3 Goals

HUD holds the PJ accountable for compliance with Section 3.

In its written agreement with its housing partners, the PJ

should be sure to articulate the partners’ Section 3 obligations

and establish a monitoring and enforcement mechanism.

When a PJ or its housing partner is unable to meet Section 3

goals, HUD places the burden of proving compliance with

Section 3 on the PJ. The PJ will be expected to demonstrate

why it was not feasible to meet the goals. The PJ has some

flexibility in how it will demonstrate its efforts to meet these

requirements, and monitor its housing partners. Ultimately,

HUD will evaluate the PJ based on its ability to describe the

efforts that it took to meet the hiring and contracting requirements and the impediments incurred despite actions taken.

At a minimum, it is recommended that if a PJ and its housing

partners are unable to meet their Section 3 hiring and contracting goals, the PJ should sponsor or participate in upward

Exhibit 3

What is a Section 3 Business Concern?

A Section 3 business concern is a business entity that is formed in accordance with state law, and licensed under state,

county, or municipal law to engage in the type of business activity for which it was formed. This may include nonprofit

organizations. It must meet one of the following criteria:

U The business is 51 percent or more owned by Section 3 residents; or

U The business’ permanent, full-time employees include persons, at least 30 percent of whom are currently Section

3 residents, or within three years of the date of first employment with the business concern were Section 3 residents; or

U The business may provide evidence of a commitment to subcontract in excess of 25 percent of the dollar award

of all subcontracts to be awarded to business concerns that meet the qualifications set forth above. 
Creating Economic Opportunity

5

8 These required steps are based on 24 CFR 85.36(e), incorporated into the HOME Program by reference at 24 CFR 92.351(b).

9 See 24 CFR 92.351(b).

mobility programs, hire eligible residents in trainee positions

with regard to training and employment, or form Section 3

joint ventures with regard to contracting. 

Outreach to Minorities and

Women

The HOME Program regulations require PJs to establish and

oversee a minority outreach program to ensure the inclusion of

minorities and women, and entities owned by minorities and

women, in the participation of contracting opportunities with

the PJ. In addition, procurement requirements applicable to

the HOME Program require PJs to undertake specific outreach activities to notify minority and women business enterprises (MBE/WBE) of contracting opportunities. Although

similar, these requirements differ in some ways. PJs should,

however, be able to develop one outreach program that readily

addresses both requirements.

Definitions

The PJ has the discretion to define both “entities owned by

minorities and women” and “minority business enterprise” and

“women business enterprise.” The PJ can adopt different definitions for each target group, but for practical reasons, it is

highly recommended that the PJ use the same definition, such

that an “entity owned by a minority” is the same as an

“MBE;” and an “entity owned by a woman/women” is the

same as a “WBE.” The PJ can develop and adopt its own definition(s) for these terms, or use established Federal, state,

local, or quasi-governmental definitions. 

Outreach and Notification Activities

Unlike Section 3, the MBE/WBE outreach activities specified

in the procurement rules at 24 CFR 85.36(e) apply to all contracting opportunities facilitated by HOME-funded activities,

including contracts related to construction, rental assistance,

direct homebuyer assistance, and HOME Program administration. There are no monetary thresholds to trigger these

requirements; they apply to contracts of all sizes.

To ensure that MBEs/WBEs are afforded every opportunity to

participate in HOME-generated contracts, the notification

process is regulated. The minimum required affirmative steps

for PJs and their housing partners are:8

• Placing minorities and women on solicitation lists;

• Assuring that MBE and WBE firms are solicited whenever they are potential sources;

• Dividing total requirements, when economically feasible,

into smaller tasks or quantities to permit maximum participation by small and minority business enterprises,

and women business enterprises;

• Where the requirement permits, establishing delivery

schedules that encourage participation by small and

minority business enterprises, and women business

enterprises;

• Using the services and assistance of the Small Business

Administration and the Minority Business Development

Agency of the Department of Commerce; and

• Requiring the prime contractor, if subcontracts are to be

let, to take all the same affirmative steps listed here.

Development of Outreach Procedures

In addition to the specific notification and solicitation steps

described in the preceding section, the HOME Program

requires each PJ “to establish and oversee a minority outreach

program within its jurisdiction to ensure the inclusion, to the

maximum extent possible, of minorities and women, and entities owned by minorities and women. . .”9

Further, the HOME Program specifies that the PJ’s minority

outreach program must ensure the inclusion, to the maximum

extent possible, of minorities and women, and entities owned

by minorities and women in the following professions:

• Real estate;

• Construction;

• Appraisals;

• Management;

• Banking/Finance;

• Investment banking;

• Underwriters;

• Accountants; and

• Law.

These outreach procedures should be designed to ensure that

minorities and women, and entities owned by minorities and

women who are eligible to perform work generated by the

expenditure of HOME funds, are made aware that contracting

opportunities are being generated. PJs have considerable discretion in how they establish and implement these procedures. 
Fair Housing for HOME Program Participants

6

For most PJs, the required MBE/WBE outreach activities

described in the preceding section will be incorporated into

the PJ’s minority outreach program. Hereafter, for the purposes of this publication, the terminology of the HOME

Program (“minorities and women” and “entities owned by

minorities and women”) will be used to refer to both sets of

requirements, unless otherwise noted. 

Effective outreach procedures will:

Articulate the goals and scope of the minority outreach

program. The PJ should determine the goals and scope of its

outreach program and develop procedures to implement it.

The outreach process should describe how eligible minorities

and women, and entities owned by minorities and women,

should be notified of every contracting opportunity that

results from the expenditure of HOME Program funds. 

Expand beyond the minimum MBE/WBE notification and

solicitation requirements. In addition to the MBE/WBE procurement requirements described in the preceding section, PJs

might choose to incorporate additional notification and solicitation activities in their outreach program, such as:

• Identifying minority and women business enterprises

through a number of locally-based agencies, such as

state and local small business support centers, labor

unions, and employment centers;

• Generating new contacts at job fairs targeted to

minorities and women; and/or

• Requiring all contractors to notify the PJ, in advance, of

any subcontracting opportunities that may be generated

on HOME Program projects.

Be based on the participation needs in the jurisdiction. An

effective minority outreach program should be based on specific knowledge of the pool of potential minority and women

contractors and the contracting opportunities that future

HOME Program projects will generate. 

Articulate roles and responsibilities. The minority outreach

program should be clear about who is responsible for carrying

out each part of the outreach process. For instance, the PJ

may wish to retain responsibility for conducting ongoing

general outreach in order to (a) increase participation of

minorities and women, and entities owned by minorities and

women; and (b) recruit prospective participants from

industries and professions that have not participated

extensively in the past. The PJ may also ask its contractors to

conduct more project-specific outreach to generate

participation in specific contracting opportunities.

Many jurisdictions find that simply making minorities and

women and entities owned by minorities and women aware of

contracting opportunities does not necessarily result in a significant level of participation by them. In addition, minorities

and women are frequently underrepresented in certain professions, such as engineering and architecture, and outreach

alone may not increase participation. With an understanding

of the local labor pool and needs, PJs may choose to develop

an outreach program that provides technical assistance to entities owned by minorities and women, and to minorities and

women in the field, in an effort to increase these segments of

the labor and contracting pool. Such activities might include:

• Providing technical assistance in the certification and

government procurement processes to entities owned by

minorities and women; or

• Seeking creative solutions to problems that small

businesses might have, such as in securing required

bonding or insurance.

Implementation of the

Economic Opportunity

Requirements

PJs can assure smooth implementation of the economic

opportunity requirements with adequate planning, consistent

communication with partners, and careful record-keeping.

This section reviews the implementation issues for training

and employment requirements, and for contracting under

Section 3, MBE/WBE outreach, and minority outreach

programs.

Section 3 Training and Employment

Requirements

There are several steps required of the PJ in its implementation of the training and employment requirements of

Section 3:

1. Determine Section 3 Eligibility of Applicant

The PJ must establish guidelines for itself and its state recipients, contractors, and subrecipients to guide applicant eligibility determinations, apply priority preferences, and articulate

record-keeping needs. The guidelines should:

• Explain that a Section 3 resident is a low- or very lowincome person and a resident of the metropolitan area or

non-metropolitan county, at a minimum. 

• Articulate that the priority preferences for hiring are
Creating Economic Opportunity

7

those who live in the neighborhood of the HOMEassisted project and participants of Youthbuild. The PJ

should provide any additional guidance it chooses to

clarify how these preferences should be applied. 

• Define the neighborhood boundaries of each HOME

project. The PJ might choose an established, commonly

understood boundary (such as a zip code), for administrative ease. 

Next, the PJ should determine the level of documentation

that it will collect, and that it will require contractors to collect, from job applicants and employees to determine that the

person meets the low- or very low-income criteria. At a minimum, HUD expects employed applicants to provide evidence

such as pay stubs or W-2s. Unemployed applicants can provide proof of receipt of unemployment compensation or other

forms of public assistance to demonstrate income eligibility.

PJs can use delivered mail as evidence of residency. PJs can

impose a higher standard of documentation if desired.

PJs need not require contractors to submit this documentation

for review. However, since PJs are responsible to ensure that

these requirements are met, PJs are strongly encouraged to

monitor contractor files on a periodic basis. Contracts with

contractors should include a clause that gives the PJ and

HUD the right to inspect all records related to the project.

2. Determine the Population of “New Hires”

The Section 3 hiring goal applies to new hires only. New hires

are all full-time employees, for permanent, temporary, or seasonal employment opportunities. In most instances, such permanent, temporary, or seasonal workers were not employed by

the hiring entity at the time that entity was selected to receive

HOME Program funds or a HOME-funded contract. PJs

should specify that point in time for their housing partners.

All parties should retain payroll records to document their

determination of new hires. 

3. Recruit Section 3 Applicants

Since the nature of Section 3 is to employ project area

residents if there are any new employment opportunities,

recruiting and hiring strategies are typically neighborhoodbased. PJs and their partners can share this responsibility. For

construction jobs, signs at the upcoming construction site are

typically an effective means of notifying potential applicants of

opportunities with general contractors. Unions10 can be

especially effective at getting the word out, as well.

Additional outreach is needed, however, as the employment

goals apply to all jobs and contracts for work that is related to

a HOME new construction or rehabilitation project, not only

the construction jobs. Section 3 applicants must also be

recruited for management and administrative positions-architectural, engineering, or related professional services required

to prepare plans, drawings, specifications, or work write-ups;

and jobs directly related to administrative support of this

work. Places to advertise to fill these types of positions might

include:

• Job fairs; 

• Faith-based organizations;

• Community centers;

• Related businesses in the neighborhood;

• Social services groups;

• Employment centers; and

• Civic associations.

Section 3 residents should meet the qualifications of the

position to be filled, just like other new hires. PJs and their

contractors are not required to employ persons who are not

qualified to meet the requirements of the position to be filled.

However, if a contractor provides apprenticeships and training

opportunities for other new hires, these same opportunities

should be provided to the Section 3 residents. 

If a contractor is unable to meet the Section 3 hiring goals, it

should consider offering alternative economic opportunities as

a means for demonstrating that it has met the Section 3

requirements “to the greatest extent feasible.”11 Under such a

program, the PJ puts in place economic opportunities other

than training or employment that promote compliance with

Section 3 requirements. For example, as part of the effort to

meet the 30 percent hiring goal, a PJ can set up a training

fund, use “upward mobility” or “bridge” positions to fill

vacancies, or start a mentoring program to help residents

acquire the needed skills to qualify for certain employment

opportunities. 

10 Contracts awarded on Section 3 governed projects are made without regard to affiliation to any Collective Bargaining Unit.

11 See 24 CFR 135.40.
Fair Housing for HOME Program Participants

8

Section 3 and Minority/Women Outreach and

Contracting Requirements 

Both Section 3 and MBE/WBE outreach requirements have

significant impacts on a PJ’s contracting activities and processes, as well as those of its partners. The MBE/WBE outreach

requirements provide specific guidelines on the process of contracting while Section 3 focuses on results. The PJ-developed

minority outreach program may do one or both of these

things. However, since it is locally-developed, this section will

focus only on the Federal requirements. There are several

steps required of the PJ in its implementation of the requirements affecting contracting, for Section 3 and MBE/WBE

outreach:

1. Determine Firm Eligibility

The first step in soliciting either of the targeted populations is

identifying who is qualified. 

Section 3. Businesses seeking Section 3 preferences are

responsible for documenting their eligibility. Unless the PJ

has reason to doubt a firm’s eligibility (for instance, as the

result of a complaint), it can accept the firm’s own certification of eligibility in the form of a notarized statement. The PJ

must retain the certification for monitoring purposes. The PJ

is ultimately responsible to provide this documentation to

HUD should it be monitored.

Outreach to minorities and women. As previously discussed,

the PJ has the discretion to define “minorities,” and “entities

owned by minorities” and “entities owned by women” for the

purposes of establishing and overseeing a minority outreach

program, and to establish the criteria on which it will base eligibility. In addition, the PJ has the discretion to define an

“MBE” and “WBE” for the purposes of meeting the procurement requirements. In most jurisdictions, state and local governments, and quasi-governmental agencies certify MBEs and

WBEs in accordance with state and local requirements and

definitions. If the PJ chooses to use these definitions, these

certifications are sufficient documentation of the eligibility of

an entity owned by minorities or women, and an MBE or

WBE for the HOME Program. 

2. Advertise and Make Solicitations to Targeted Audiences

PJs, state recipients, subrecipients, and contractors should

maintain and solicit lists of qualified Section 3 firms, MBEs

and WBEs, and entities owned by minorities and women, and

make these firms aware of opportunities to bid for HOMErelated work. New businesses are created and existing

businesses change over time. Every new project and

contracting opportunity should be used as an opportunity to

recruit new firms to participate, and to update and maintain

existing contact lists. Since there is substantial overlap in these

lists in most jurisdictions, outreach efforts for these two

groups should be conducted in a coordinated fashion to

provide for an efficient use of resources. 

Implementation Steps for All Economic

Opportunity Requirements

Certain steps in the implementation process can be streamlined for all of the economic opportunity requirements:

1. Make Contractors Aware of Their Obligations

PJs must be sure that their housing partners understand the

Section 3, MBE/WBE, and the minority outreach requirements, as it is the PJ that is held accountable for whether or

not these requirements are met. PJs should take every opportunity throughout the contracting process to inform potential

bidders and selected contractors of their obligations. It is recommended that, at a minimum, these requirements be

reviewed at the following stages of the contracting process:

• Bid solicitations and requests for proposals;

• Pre-bid meetings; and

• Pre-construction conferences.

2. Execute a Contract

Once a contractor is selected, the PJ can assist the contractor

in identifying and using the services of minorities and women,

entities owned by minorities and women, MBE/WBEs, and

Section 3 residents and firms. 

In addition, all contracts subject to the requirements of

Section 3 must include the Section 3 clause verbatim that is

contained at 24 CFR 135.38 and provided as Exhibit 4. It is

advisable to also include contract language that specifies the

MBE/WBE and minority outreach requirements.

Generally, the PJ must rely on reports from its partners to

document that it is in compliance with Section 3, MBE/WBE,

and the minority outreach requirements. It is advisable for PJs

to include contract language that specifies what reports must

be submitted by the contractor, what records the contractor

must retain, and for how long. The contract should also specify the PJ’s remedies in the event that the contractually

required reports have not been submitted and the required

records have not been maintained in the entity’s offices. 
Creating Economic Opportunity

9

Exhibit 4

Section 3 Clause

All Section 3 covered contracts must include the following clause:

A. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and

Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). The purpose of Section 3 is to

ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted project

covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low- income persons,

particularly persons who are recipients of HUD assistance for housing.

B. The parties to this contract agree to comply with HUD’s regulations in 24 CFR Part 135, which implement Section

3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no

contractual other impediment that would prevent them from complying with the part 135 regulations.

C. The contractor agrees to send to each labor organization or representative of workers with which the contractor

has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or

workers’ representative of the contractor’s commitments under this Section 3 clause, and will post copies of the

notice in conspicuous places at the work site where both employees and applicants for training and employment

practices can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number

and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and

the name and location of the person(s) taking applications for each of the positions; and the anticipated date the

work shall begin.

D. The contract agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in

24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the

subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in

24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or

knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135.

E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1)

after the contractor is selected, but before the contract is executed, and (2) with persons other than those to

whom the regulation of 24 CFR part 135 require employment opportunities to be directed, were not filled to

circumvent the contractor’s obligations under 24 CFR part 135.

F. Noncompliance with HUD’s regulations in 24 CFR Part 135 may result in sanctions, termination of this contract

for default, and debarment or suspension from future HUD-assisted contracts.

G. With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of

the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be

performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and

opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts

and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this

contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the

maximum extent feasible, but not in derogation of compliance with Section 7(b).12

12 This paragraph (G) is not applicable to the HOME Program; nonetheless, the regulations require that the Section 3 clause be included 

verbatim in all contracts subject to the requirements of Section 3.
Fair Housing for HOME Program Participants

10

3. Maintain Records

Two types of records should be kept: 

1. Documentation of efforts made by the PJ and its housing partners to comply with Section 3, MBE/WBE, and

minority outreach requirements. This might include

copies of direct mail solicitations, formal advertisements,

flyers or brochures about meetings; sign-in lists from job

fairs and other public meetings; and agendas and/or

meeting notes from meetings with contractors.

2. Documentation of actual Section 3 hiring and all contracting activity. The section below, PJ Oversight

Responsibilities, provides specific data that should be collected to document performance on meeting Section 3,

MBE/WBE, and minority and women contracting

requirements. This data might be found in the form of

reports from contractors; periodic payroll record review

(on-site, or submitted to the PJ); certification identification numbers, or other identifying documentation; and

copies of executed contracts.

Procurement Requirements and Economic

Opportunity

The implementation of Section 3, MBE/WBE, and minority

outreach requirements must be conducted in conformance

with applicable procurement rules. All procurement

transactions carried out by PJs, their subrecipients, and state

recipients are subject to 24 CFR Part 85 and must be

conducted in a manner that provides for and ensures fair and

open competition. Project owners and contractors, on the

other hand, are not subject to the procurement rules of

Part 85.

Meeting Economic Opportunity Requirements for PJs, State

Recipients, and Subrecipients

There are many ways PJs, state recipients, and subrecipients

can conduct competitive procurement processes and also comply with the Section 3, MBE/WBE, and minority outreach

requirements. Solicitations should serve to (1) communicate all

applicable requirements to potential bidders; and (2) create an

open, competitive process through which the bidding agency

can select the lowest, most qualified bidder.

Selected bidders must be capable of performing the work

needed, in conformance with all applicable requirements,

including economic opportunity requirements. The selection process

must be designed to provide PJs with sufficient evidence to

make this determination. If a contractor cannot demonstrate

an ability to meet these requirements, it should not be selected to perform HOME-funded work. At an absolute minimum,

PJs must not enter into any contracts with a contractor upon

notification by HUD that the contractor has been in violation

of the Section 3 regulations.

In order to communicate applicable economic opportunity

requirements, PJs, state recipients, and subrecipients should

be sure that all contract solicitations clearly state: 

• Criteria for determining the eligibility of minorities and

women; entities owned by minorities and women;

MBE/WBEs, if different; or Section 3 firms, as defined

above;

• PJ’s preferences for contracting with Section 3 businesses; 

• Selected contractor’s hiring and contracting obligations,

as they relate to Section 3 and minority outreach; and

• Selected contractor’s reporting obligations, as they relate

to Section 3 and minority outreach.

In the context of a sealed bidding process, in order to determine whether or not a contractor is likely to meet the economic opportunity requirements, PJs should ask contractors

to describe their qualifications in this area as part of the bid

submission. Such evidence might include a description of successful past performance with Section 3 firms and participation of MBEs and WBEs. Absent a track record in this area,

an acceptable plan of action to include these firms should be

provided by the contractor. A knowledgeable staff person

should review these submissions.

When seeking competitive proposals where selection criteria

other than price will also be considered, at a minimum, PJs

should make a determination that a contractor is able to meet

the economic opportunity requirements. However, PJs may

wish to evaluate and compare the quality of these efforts in its

ranking of proposals. In these types of solicitations, PJs should

request additional information, such as:

• A description of past performance in the area of Section

3 and MBE/WBE compliance;

• A description of the contractor’s intended efforts to

advertise or solicit participation of MBEs, WBEs, and

Section 3 firms; 

• Specific commitments by the contractor to contract with

MBEs, WBEs, and Section 3 firms; and

• A plan to partner with others or structure project activities to facilitate participation by MBE, WBE and

Section 3 firms. 

Again, a knowledgeable staff person should review these

submissions.
Creating Economic Opportunity

11

Meeting Economic Opportunity Requirements for Contractors

Although contractors are not subject to the procurement rules

at 24 CFR Part 85, they must comply with Section 3 rules

and they are required to follow the minority outreach procedures established by the PJ. This means that even if a contractor does not publicly bid out contracts, to the maximum

extent possible, it must make every effort to publicize and

maximize contracting opportunities in order to ensure participation by Section 3 firms and MBE/WBEs. In addition, it

must follow the procedures established by the PJ to ensure

that minorities and women and entities owned by minorities

and women are afforded contracting opportunities generated

by the use of HOME funds. With regard to Section 3 compliance, the PJ can implement other economic opportunities to

establish, stabilize, or expand Section 3 business concerns.13

PJ Oversight Responsibilities

The PJ must comply with Section 3, MBE/WBE, and minority outreach requirements in its own operations, and ensure

compliance with these requirements by its housing partners.

In order to meet these requirements and goals, PJs need to

have a system in place to collect appropriate data and submit

annual reports to HUD, monitor activities and record-keeping

by their partners to ensure they are in compliance with the

economic opportunity requirements, and investigate any complaints related to hiring and contracting activity.

Data Collection and Reporting

PJs are required to submit data annually to HUD that document all MBE, WBE, and Section 3 activities undertaken by

themselves and their housing partners. MBE and WBE participation data is captured on Part III of the Annual

Performance Report (Form HUD-40107). Section 3 data is

captured on the Section 3 Summary Report (Form HUD60002). The PJ submits both forms to HUD with the

Consolidated Annual Performance and Evaluation Report

(CAPER). To facilitate completion of these annual reports, PJ

managers should become familiar with the data collection and

reporting requirements and review progress reports on a regular basis, to monitor the PJ’s progress in meeting these goals.

These forms are available online at http://www.hudclips.org/

sub_nonhud/html/forms.htm. The HUD-60002 forms are

submitted online or by mail to the Office of Fair Housing and

Equal Opportunity, Economic Opportunity Division, 451 7th

Street, S.W., Washington, D.C. 20410.

Since much of the same type of data is required for MBE,

WBE, and Section 3 reporting, a single database can be maintained to capture this information. It should include information on eligible MBE, WBE, and Section 3 firms; all their

contracts and subcontracts awarded; the value; and to whom

they were awarded: all employees hired, each employee’s place

of domicile, and his or her eligibility as a Section 3 resident.

Additional data collection may be desired to facilitate implementation of the local minority outreach program.

Exhibit 5 lists the data PJs should collect to meet their reporting requirements.

In addition to reporting on the use of MBE and WBE contractors, PJs must maintain and report to HUD on data

reflecting the participation of Minority Owners of Rental

Exhibit 5

List of Data Needed to Monitor Progress

and Meet Reporting Requirements

U By Project/Activity and location, each contract

and subcontract awarded:

— To whom the contract was awarded

• Company name

• Address

• Trade

U Determination of eligibility as an MBE, WBE, or

Section 3 firm 

— Who made determination?

— When? 

U Award date

U Contract value

U Trade or profession

U Employee data

— List of new hires

• Address

• Eligibility as low-income or very 

low-income

• Race, ethnicity, and gender

U List of all subcontracts, if applicable

13 See the regulations at 24 CFR 135.40(c) for examples of such economic opportunities.
Fair Housing for HOME Program Participants

12

Property in the HOME Program. This data is captured in Part

IV of the Annual Performance Report (Form HUD-40107).

Specifically, PJs must provide information on the number of

HOME-assisted rental property owners, by race, and the

amount of HOME funds invested in the property.

Monitoring

PJs are responsible for maintaining documentation to demonstrate their compliance with the economic opportunity

requirements. In addition to the files that will substantiate

the data collected in the reports, PJs should maintain a copy

of their minority outreach programs and procedures, and any

documentation that demonstrates program implementation. 

In order to ensure compliance by their housing partners, PJs

should periodically monitor their activities and performance.

The monitoring should include an evaluation of: 

• Actual hiring, in relation to goals;

• Actual contracting (in terms of numbers of contracts

and contract value), in relation to goals; and

• Efforts to meet the requirements. 

If reporting is done consistently and accurately, review and

analysis of the submitted data should give the PJ a very good

picture of the status of its partners’ compliance with the economic opportunity requirements. When determining which of

its partners might benefit most from an on-site visit, a PJ

should consider:

• Whether the housing partner is meeting the Section 3

goals;

• Whether the agency’s participation of minorities and

women, and entities owned by minorities and women,

reflects the demographics of the jurisdiction, or the PJ’s

perception of available firms if the contract is trade or

profession-specific;

• Whether the dollar amount of the contract is large;

• Whether the contract is likely to generate jobs or business contract opportunities; and

• Whether or not complaints against that contractor have

been raised.

Corrective Action

HUD will review the PJ’s performance in these areas as part

of its monitoring of HOME Program activities. Instances of

noncompliance will be addressed in the context of standard

monitoring procedures: PJs will be given an opportunity to

respond to findings or concerns identified by HUD, and will

be expected to take corrective action as needed. 

In the event the PJ has evidence that a housing partner has

not met the applicable economic opportunity requirements, it

is expected that the PJ will pursue appropriate remedies. In

addition, the PJ has the responsibility to refer the possible

noncompliance with Section 3 to HUD’s Fair Housing and

Equal Opportunity Office, Economic Opportunity Division for

further review. 

Additional Resources

The regulations governing the HOME Program can be found

at 24 CFR Part 92. The home page for the HOME Program

is www.hud.gov/offices/cpd/affordablehousing/programs/

home/. From this site, one can access the statute, regulations,

technical guidance, training opportunities, and a wealth of

resources that facilitate the operation of the HOME Program.

The regulations governing economic opportunity can be found

at 24 CFR Part 135. These regulations can be accessed

through the Government Printing Office website at

http://www.gpoaccess.gov/cfr/index.html.

The HUD website for economic opportunities can be found at

www.hud.gov/offices/fheo/section3/section3.cfm. This site

includes a link to a data collection summary form that can be

submitted online by recipients.

The Minority Business Development Agency, Department of

Commerce website is www.mbda.gov/. This site provides

information that is useful to minority businesses.

The American Business Women’s Association website is

www.abwa.org/. This is a membership organization of businesses owned and operated by women.

The Native American Business Development Center website is

www.nabdc.org/partners.htm. This group supports businesses

that are owned and operated by Native Americans.

The Women Contractors Association website is www.women

contractors.org/. This group provides information and

assistance to women in construction and construction-related

industries.

The National Minority Supplier Development Council website

is http://www.nmsdcus.org. This site includes a national

directory of minority and women business enterprises.

The National Resource Site for Minority and Women Business

Enterprises website is www.mwbe.com. 
Creating Economic Opportunity

13

About the Series:

Fair Housing for HOME

Program Participants

The Fair Housing for HOME Program Participants series is

designed to help PJs and their housing partners understand

and comply with Federal fair housing laws and regulations in

the implementation of their HOME Program activities. In

general, these laws:

• Prohibit discrimination in housing and housing-related

transactions by PJs and their housing partners; 

• Require PJs to affirmatively further fair housing;

• Prescribe design and construction standards to ensure

equal access to housing by persons with disabilities; 

• Promote the use of minorities and women, and minority

and women business enterprises in Federally funded

contracting opportunities; 

• Encourage the creation of employment opportunities for

low-income residents of neighborhoods where HOME

Program activities are undertaken; and

• Require the implementation of affirmative marketing

strategies and outreach to those segments of the populations identified as least likely to apply for the housing

without such outreach.

The Fair Housing for HOME Program Participants series contains

the following publications:

• Fair Housing for HOME Program Participants:

Understanding the Basics. This publication identifies the

protected classes, describes the nondiscrimination provisions of the fair housing laws, and defines prohibited discriminatory actions. In addition, it briefly discusses

issues related to affirmatively furthering fair housing and

the provision of housing for persons with disabilities.

(These topics are explored in greater detail in subsequent publications of the series.) All subsequent publications are based on the assumption that the reader is

familiar with the fundamental requirements outlined in

this publication.

• Fair Housing for HOME Program Participants: Affirmatively

Furthering Fair Housing describes a PJ’s obligation to

affirmatively further fair housing and reviews eligible

uses of HOME Program funds to promote fair housing. 

• Fair Housing for HOME Program Participants: Creating

Economic Opportunity reviews the requirements designed

to create economic opportunities for minorities and

women, minority and women business enterprises, and

low- and very-low-income residents living in HOME

project areas.

• Fair Housing for HOME Program Participants: Promoting

Fair and Accessible Housing Opportunities in HOME Projects

describes the applicability of fair housing laws to rental

and homeownership housing development, new construction, and rehabilitation. This publication provides

guidance on site and neighborhood standards, recordkeeping, and design and construction requirements to

ensure accessibility. 

• Fair Housing for HOME Program Participants: Tenant-Based

Rental Assistance discusses tenant selection criteria and

procedures and reasonable accommodations and modifications under the Fair Housing Act and program accessibility under Section 504.

The Fair Housing for HOME Program Participants series will help

managers, program staff, and procurement staff of the PJ and

its housing partners. These entities must comply with fair

housing requirements when administering programs and

developing projects to be funded by the HOME Program. 

The Fair Housing for HOME Program Participants series focuses

on Federal fair housing laws related to housing development

and management that are implemented and monitored by

HUD. It provides guidance on how PJs and their housing

partners can comply with (1) the nondiscrimination mandates

of the civil rights laws (focusing primarily on the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973), and

Title II of the Cranston-Gonzalez National Affordable

Housing Act of 1990; and (2) the affirmatively furthering fair

housing mandate of Section 808(e)(5) of the Fair Housing Act.

The HOME Program is also subject to Title VI of the Civil

Rights Act of 1964 and its implementing regulations at 24

CFR Part 1, which prohibit recipients of Federal assistance

from discriminating on the basis of race, color and national

origin. 

The series does not provide guidance on state and local fair

housing requirements, which may differ from Federal laws.

PJs and their housing partners that are unfamiliar with state

and local requirements can identify resources through the

National Fair Housing Advocate OnLine at

www.fairhousing.com. Likewise, the series does not provide

guidance on the Americans with Disabilities Act of 1990

(ADA) requirements, which are administered by the

Department of Justice (DOJ). PJs are subject to ADA

requirements, and can get more information about their

obligations from the DOJ website at www.usdoj.gov/crt/ada/

adahom1.htm. 
Fair Housing for HOME Program Participants

14

Readers that have specific questions about interpretation of

civil rights or fair housing laws are encouraged to seek the

advice of legal counsel.

HOME Model Program Guides

Fair Housing for HOME Program Participants is a HOME model

program guide published by the U.S. Department of Housing

and Urban Development’s Office of Affordable Housing

Programs. The HOME model program guides provide technical assistance to jurisdictions that are implementing HOME

Program activities. Additional copies of any of the publications

in the Fair Housing for HOME Program Participants series, as

well as other HOME model program guides, can be obtained

from Community Connections Information Center at 1-800-

998-9999. For a list of available model program guides, visit

the HOME Program web site at www.hud.gov/offices/cpd/

affordablehousing/library/modelguides/index.cfm. 

For more information about the HOME Program, visit

www.hud.gov/offices/cpd/affordablehousing/programs/home/

index.cfm.

U.S. Department of Housing and Urban Development

Office of Community Planning and Development

HUD-2005-10-CPD

May 2005
1

UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U RENTAL AND HOMEOWNERSHIP

DEVELOPMENT U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE

BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANTBASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY

FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U

RENTAL AND HOMEOWNERSHIP DEVELOPMENT U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING

FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U RENTAL AND

Promoting Fair and Accessible

Housing Opportunities in

HOME Projects

Fair Housing for HOME Program Participants

Promoting Fair and Accessible

Housing Opportunities in

HOME Projects

When undertaking new construction and rehabilitation development activities with HOME Program funds, participating jurisdictions (PJs) and

their housing partners must strive to create housing units that provide real choice to low- and very low-income residents through thoughtful site

selection and architectural design decisions. Newly constructed rental housing must be located in areas that meet specific site and neighborhood

standards. In addition, newly constructed and rehabilitated housing must meet certain accessibility standards to ensure access by persons with disabilities. This publication reviews these fair housing requirements that apply to development activity undertaken with HOME funds. 

This publication is part of the series “Fair Housing for HOME Program Participants.” The series provides technical assistance to PJs and their

housing partners on the fair housing requirements that apply to HOME Program activities. Specifically, the series reviews the applicable Federal

fair housing laws and regulations, illustrates best practices in promoting fair housing, and highlights PJ responsibilities for ensuring compliance

with fair housing requirements. For purposes of this series, the PJ’s “housing partners” include all persons and entities who use HOME Program

funds, including the PJ and its recipients, state recipients, contractors, developers (including Community Housing Development Organizations),

owners, and management agents. Unless otherwise specified, the fair housing requirements extend to the PJ and all its housing partners.

Promoting Greater Housing

Choice

At its core, fair housing is based on the concept that all

Americans should have equal housing choice. In a housing

market with equal housing choice, members of each of the

protected classes have a range of housing options similar to

the range of options afforded to those who are not members of

a protected class. For instance, all low-income residents would

have the same housing choices, in terms of neighborhoods,

housing design, tenure type, accessibility, and bedroom size. 

All housing assisted with HOME funds must be developed in

a manner that facilitates greater choice of housing opportunities, in

accordance with 24 CFR 92.202(a). In promoting greater

housing choice, PJs and their housing partners must, at a minimum, ensure that HOME-assisted housing is open and free

from unlawful discrimination. In addition, PJs should examine local housing markets and design affordable housing programs in a way that fosters greater housing choice for all its

low- and very low-income residents. This may mean that PJs

take affirmative action(s) to overcome or remove the consequences of prior discriminatory actions in the housing market. 

Many factors influence housing choices, but location affects

the desirability and marketability of a property above all else.

The location of HOME-funded housing may impact on the

choices low- and very low-income persons have in selecting

suitable housing. By siting HOME-assisted housing in locations that meet the site and neighborhood standards (found at

24 CFR 92.202), particularly in housing markets where there

is limited affordable housing or where affordable housing is

concentrated in a limited number of neighborhoods in the

jurisdiction, PJs can improve the range of housing choices

available to low- and very low-income residents. 

PJ strategies for increasing housing options for its low- and

very low-income residents should be driven by the jurisidiction’s existing occupancy patterns for low- and very lowincome residents and protected class members. The PJ should

describe these occupancy patterns in its Consolidated Plan. 

Some suggestions for increasing housing choice with HOME

funds in jurisdictions with common housing patterns include:

• Jurisdictions that have undue concentrations of low- and

very low-income residents in a limited number of

neighborhoods might consider expanding housing

choices of their low-income residents by developing
Fair Housing for HOME Program Participants

2

affordable housing in neighborhoods with greater

numbers of middle- and upper-income residents.

• Assistance can be provided in ways to promote desegregation in jurisdictions with housing patterns that are

highly segregated by race or ethnicity. For instance, PJs

might target homebuyer assistance or soft second mortgages to low-income buyers in certain neighborhoods to

promote diversity. 

• In order to promote neighborhood racial and ethnic

diversity, jurisdictions with housing patterns that are

highly segregated by race or ethnicity might conduct

affirmative fair housing marketing to the population

least likely to apply for the housing. This might be

accomplished by using minority press and media to

advertise the availability of units or homes in nonminority neighborhoods. Note, this type of affirmative

marketing is required in HOME projects with five or

more assisted units.

• Jurisdictions whose existing assisted housing is located

almost exclusively in areas of minority concentration

might consider ways to expand choice to other neighborhoods, such as by providing tenant-based rental

assistance. Where HOME housing development funds

are invested, HOME-assisted housing should be sited in

areas that do not reinforce and perpetuate patterns of

existing segregation. The following section on site selection of newly constructed rental housing provides a

more detailed discussion of this issue as it relates to the

rental housing market.

• Jurisdictions with a limited supply of accessible housing

might consider providing a greater number of fully

accessible housing units than the minimum number

required by Section 504 of the Rehabilitation Act of

1973 (“Section 504”). (These requirements are discussed in the section entitled Accessible Housing: Design

and Construction Requirements in this publication.) These

jurisdictions might also choose to address the “visitability” of housing to ensure that persons with disabilities

who occupy the fully accessible units are able to visit

their neighbors. These concepts are discussed more fully

later in this publication.

Site Selection

Consistent with the general requirement that all housing be

developed to promote greater housing choice, there are specific requirements that relate to site selection for Federally assisted properties that are designed to ensure that sites are selected

to provide maximum housing choice to members of protected

classes. Section 504 prohibits the selection of sites where the

result might exclude persons with disabilities, and the HOME

Program regulations require that new construction rental projects meet site and neighborhood standards.

Site Selection and Accessibility

Section 504 prohibits recipients of Federal funds from taking

any actions, including making any site selections, that have

the purpose or effect of excluding qualified individuals with

disabilities from, denying benefits of, or otherwise subjecting

them to discrimination under, any program or activity that

receives Federal financial assistance. In order to ensure that

they do not have the effect of excluding individuals with disabilities from participation in, or denying them the benefits of

the HOME Program, PJs must determine that the sites they

select for the development of affordable housing are available

and accessible to persons with disabilities. This requirement

applies to all housing development site selections, including in

housing rehabilitation programs, where the configuration of

an existing site may preclude the feasibility of incorporating

accessibility features. For instance, rowhouses with little or no

setback may not be able to accommodate an entrance ramp

for a person in a wheelchair. Likewise, it might not be possible to create an accessible entrance route on a property that is

situated on rugged or steep terrain. Under Section 504, if a

site cannot be made accessible to persons with disabilities, it

should not be selected for project funding. In addition, when

purchasing an existing building that was built after March 13,

1991, it is wise to determine whether the building was built

to comply with the design and construction requirements of

the Fair Housing Act. For more information on these requirements, see the discussion that follows in this publication in the

section entitled Accessible Housing: Design and Construction

Requirements. 

Site and Neighborhood Standards for New

Construction of Rental Housing 

The HOME Program requires the PJ to conduct a “site and

neighborhood standards” review when it proposes new construction of rental housing or land acquisition for new rental

construction. The HOME Program rule at 24 CFR 92.202(b)

requires that the PJ make a determination that each site proposed for the new construction of rental housing meets the

site and neighborhood standards that are articulated at 24

CFR 983.6(b). The purposes of the site and neighborhood

standards are to ensure that (1) newly constructed rental housing is located in areas that promote greater housing choice for

low- and very low-income persons in accordance with Title VI

of the Civil Rights Act of 1964 and the Fair Housing Act, and

(2) investments in areas of minority concentration or undue

concentrations of low-income persons are made in the context

of an overall revitalization program.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

3

Prior to investing HOME Program funds in a new construction rental project, PJs need to determine that the site meets

the site and neighborhood standards, as follows:

• The site must be appropriate for the housing proposed.

The site must be adequate in size, exposure, and contour

to accommodate the number and type of units proposed; and adequate utilities (water, sewer, gas, and

electricity) and streets must be available, or be made

available, to service the site.

• The location of the proposed housing must facilitate and

further full compliance with the applicable provisions of

the Fair Housing Act, Title VI of the Civil Rights Act of

1964, Executive Order 11063, and implementing HUD

regulations.

• A project cannot be located in an area of minority concentration, except under certain circumstances

(described in the following bullet), and must not be

located in a racially mixed area if the project will cause a

significant increase in the proportion of minority to nonminority residents in the area. Note, PJs must define

“areas of minority concentration” in their Consolidated

Plans. 

• The project may be located in an area of minority concentration only when:

— Sufficient, comparable housing opportunities exist

for housing minority families, in the income range

to be served by the proposed project, outside of

areas of minority concentration; or

— The project is necessary to meet overriding housing

needs that cannot otherwise be met in the housing

market area.

— Exhibit 1 provides guidance on the application of

these two criteria.

• The site must promote greater choice of housing

opportunities and avoid undue concentration of assisted

persons in areas containing a high proportion of lowincome persons.

• The neighborhood must not be one that is seriously

detrimental to family life or in which substandard

dwellings or other undesirable conditions predominate,

unless there is actively in progress a concerted program

to remedy the undesirable conditions.

• The housing must be accessible to social, recreation,

educational, commercial, and health facilities and

services, and other municipal facilities and services that

are at least equivalent to those more typically found in

neighborhoods consisting largely of unassisted, standard

housing of similar market rents.

• Except for new construction designed for older persons,

travel time and cost via public transportation or private

automobile, from the proposed neighborhood to places

of employment providing a range to jobs for lowerincome workers, must not be excessive.

Accessible Housing: Design

and Construction

Requirements

Once a site has been selected, PJ staff and their housing partners can turn their attention to design and construction issues.

For homeownership and rental housing development, fair

housing design and construction issues focus on accessibility

for persons with disabilities. PJs and their housing partners

must comply with Section 504 of the Rehabilitation Act of

1973, the Fair Housing Act, and HUD’s implementing regulations at 24 CFR Parts 8 and 100, respectively. These laws

and regulations prohibit discrimination based on disability and

establish requirements for physical accessibility in connection

with housing programs. These accessibility requirements apply

to HOME-financed development regardless of the form in

which assistance is provided (such as deferred payment loans,

equity investments, interest-bearing loans, advances, or

grants).

This section describes (1) the scope of applicability and the

accessibility standard that applies to HOME financed rental

and homeownership housing under Section 504; (2) the scope

of applicability and the accessibility standard that applies

under the Fair Housing Act; (3) the scope and applicable standards, and how to apply them, when both Section 504 and

the Fair Housing Act apply to a particular project. This section concludes with a discussion of “visitability” and the standards that would create additional accessibility in all units, so

that any occupant might be able to entertain friends or relatives who use a wheelchair or enable a resident to “age in

place.” 

Since accessibility requirements are defined in technical

specifications that might dictate construction to the inch,

attention to detail often makes the difference between

achieving access and excluding persons with disabilities.

Further, inaccurate or faulty construction might create a

potentially hazardous situation for a person with a disability.

Failure to comply with the accessibility requirements can

result in findings of housing discrimination with assessments

of both punitive and compensatory damages. Needless to say,

mistakes in the design and construction of housing are likely

to be difficult, time-consuming, and costly to rectify.

PJs must ensure that their programs are administered in full

compliance with the accessibility requirements. PJs should

establish policies and practices to monitor compliance of all

covered development that is carried out by their state
Fair Housing for HOME Program Participants

4

Exhibit 1

Considerations in Applying the Sufficient and Comparable Opportunities Test 

of the Site and Neighborhood Standards

To apply the site and neighborhood standards with respect to the existence of sufficient and comparable housing

opportunities outside areas of minority concentration, PJs must assess the overall impact of assisted housing on the

availability of housing choices for low-income minority families in and outside areas of minority concentration. In order

to develop newly constructed rental housing in areas of minority concentration, PJs must determine that either (1)

sufficient, comparable opportunities exist for minority families, in the income range to be served by the proposed project,

outside areas of minority concentration, or (2) the project is necessary to meet overriding housing needs that cannot be

met in the housing market area. In making this assessment, PJs should be guided by the following questions:

Do Sufficient and Comparable Opportunities Exist?

U Is there a reasonable distribution of assisted units such that each year, and over a period of several years, the area

will offer an appropriate balance of housing choices within and outside areas of minority concentration?

— An appropriate balance in any jurisdiction must be determined in light of local conditions affecting the range of

housing choices available for low-income minority families and in relation to the racial mix of the locality’s

population. 

— “Sufficient” does not require that in every locality there be an equal number of assisted units within and outside

the areas of minority concentration.

U Are the units that are within and outside of areas of minority concentrations “comparable opportunities?” That is:

— Do they serve the same household type (such as elderly, persons with disabilities, family, large family)?

— Do they have the same tenure type (owner/renter)? 

— Do they require approximately the same tenant contribution towards rent?

— Do they serve the same income group?

— Are they located in the same housing market?

— Are they in standard condition?

U When assessing the overall impact of HUD-assisted housing on the availability of housing choices for low-income

minority families in and outside areas of minority concentration, can the PJ answer the following questions

affirmatively?

— Are a significant number of assisted housing units available outside areas of minority concentration?

— Is there significant integration of assisted housing projects constructed or rehabilitated in the past ten years,

relative to the racial mix of the eligible population?

— Are there racially integrated neighborhoods in the locality?

— Does the locality operate programs to assist minority families that wish to find housing outside areas of minority

concentration?

— Have minority families benefited from local activities undertaken to expand choice for minority families (such

as, acquisition and write-down of sites, tax relief programs for homeowners, acquisitions of units for use as

assisted housing units) outside of areas of minority concentration?

— Has a significant proportion of minority households been successful in finding units in non-minority areas under

the Section 8 programs?

— Have comparable housing opportunities been made available outside areas of minority concentration through

other programs?

Is the Project Necessary to Meet an Overriding Housing Need?

U Is the proposed project an integral part of an overall local strategy for the preservation or restoration of the

immediate neighborhood?

U Are proposed sites in a neighborhood experiencing significant private investment that is demonstrably changing the

economic character of the area (in other words, is the neighborhood a “revitalizing area”)?

U Are sites outside areas of minority concentration free from discrimination on the basis of race, color, religion, sex,

national origin, age, familial status, or disability? 

Note, the overriding need criteria cannot serve as the basis for finding a site to be acceptable if such discrimination

renders sites outside of areas of minority concentration unavailable or if the use of this standard in recent years has had

the effect of circumventing the obligation to provide housing choice.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

5

recipients, subrecipients, contractors, developers, owners, and

their agents.

Section 504 Design and Construction Standard

For people with disabilities, housing choice is impacted significantly by the physical design of housing. Section 504 of the

Rehabilitation Act of 1973 prohibits discrimination against

persons with disabilities in the operation of programs receiving

Federal financial assistance and imposes requirements to build

accessible housing. Section 504 states that:

No otherwise qualified individual with a disability in the

United States. . . shall, solely by reason of his/her

disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance or any program or activity conducted by any

Executive agency. . .1

HUD regulations implementing Section 504 (found at 24

CFR Part 8) contain accessibility requirements for new

construction and rehabilitation of multifamily housing and

homeownership housing development, and requirements for

ensuring that housing programs themselves are operated in a

manner that is accessible to and usable by persons with

disabilities. The accessibility requirements established in the

Fair Housing Act are discussed in the following section of this

publication, Fair Housing Act Design and Construction Standards.

Scope of Coverage for Development Activities

The Section 504 regulations impose program accessibility

requirements for three types of activity that are often undertaken by HOME Program participants: new construction of

rental multifamily projects; rehabilitation (also referred to as

“alterations”) of existing multifamily rental projects; and

homeownership development. Under Section 504, a multifamily housing project is defined as a project containing five or

more dwelling units. A project is defined as the whole of one

or more residential structures and related common spaces

(such as parking lots) which are covered by a single contract,

or designated as a whole for processing purposes, whether or

not all the units are located in the same building, or on a

common site. In accordance with this definition, five single

family homes covered by a single contract or a single building

with five units each constitute a multifamily housing project. 

For HOME-funded rental housing development (new construction and rehabilitation) programs, in a project where not

all the units are HOME-assisted units, it is the total number

of units in the development—not the number of HOMEassisted units—that is used as the basis for determining the

number of units that must be made fully accessible. The

accessible units may be either HOME-assisted, or not HOMEassisted. In projects that have a combination of HOMEassisted and non-assisted units, PJs can choose to designate

HOME-assisted units as “floating.” This means that rather

than identifying specific units that will always be the HOMEassisted units throughout the period of affordability, property

owners maintain a specified proportion of units as HOMEassisted units. These units in the project are comparable in

design, size, and level of amenities.2 In projects that have

“floating” HOME-assisted units, the accessible units “float” in

and out of the HOME inventory, as do the other units in the

development. Since many individuals with disabilities are also

low-income, as much as practical, HOME property managers

should make every effort to ensure that some accessible units

remain in the HOME-assisted inventory.

Newly Constructed Rental Housing 

The regulations at 24 CFR 8.22 state that for new construction of multifamily rental projects, a minimum of five percent

of the dwelling units in a project (but not fewer than one unit)

must be accessible to individuals with mobility impairments in

accordance with the Uniform Federal Accessibility Standards

(UFAS). UFAS is the standard that applies to facilities that

are designed, built, or altered with Federal funds. An additional two percent of the dwelling units (but not fewer than

one unit) must be accessible to individuals with hearing or

vision impairments.3

1 See 29 USC 794.

2 See HUD Notice CPD 98-2, Allocating costs and identifying HOME-assisted units in multifamily projects, for a more detailed explanation of “fixed”

and “floating” HOME-assisted units. This notice is available online at www.hud.gov/offices/cpd/affordablehousing/lawsandregs/notices/

index.cfm.

3 HUD can prescribe a higher number of required accessible units pursuant to 24 CFR 8.22(c).

The Additional Resources section at the end of this

publication provides information on how to obtain

copies of all of the relevant technical standards. 
Fair Housing for HOME Program Participants

6

Rental Housing with Substantial Alterations

The regulations at 24 CFR 8.23(a) state that if alterations are

undertaken in a project containing fifteen or more units, and

the cost of the alterations is 75 percent or more of the replacement cost of the completed development, then the owner

must follow the new construction provisions (of 24 CFR 8.22,

described in the preceding paragraph): a minimum of five

percent of the units (but not less than one unit) must be made

accessible to persons with mobility impairments, in accordance

with UFAS. In addition, a minimum of two percent of the

units (but not less than one unit) must be made accessible to

persons with hearing or visual impairments.

Rental Housing with Other Alterations

The regulations at 24 CFR 8.23(b) apply when alterations are

not substantial, as described in the preceding paragraph.

Under 24 CFR 8.23(b), alterations to multifamily dwelling

units shall, to the maximum extent feasible, be made readily

accessible to and usable by individuals with disabilities. If

alterations to single elements or spaces of a dwelling unit,

when considered together, amount to an alteration of a

dwelling unit, then the entire unit must be made accessible.

At a minimum, HUD considers alteration of an entire unit to

take place when at least all of the following individual elements are replaced:

• Renovation of whole kitchens, or at least replacement of

kitchen cabinets;

• Renovation of the bathroom, if at least a bathtub or

shower is replaced or added, or a toilet and flooring is

replaced; and 

• Entrance door jams are replaced.

When the entire unit is not being altered, 100 percent of the

single elements being altered must be made accessible.

However, HUD strongly encourages a recipient to make the

entire unit(s) accessible to and usable by individuals with

mobility impairments. Doing so avoids having to make every

element altered accessible, which may result in having partially accessible units that are of little or no value for persons with

mobility impairments. It is also more likely that the cost of

making the units accessible up-front will be less than making

each and every element altered accessible. Once five percent

(5%) or the higher minimum percentage prescribed by HUD,

of the housing units are accessible to and usable by individuals

with disabilities, the PJ no longer has to make additional units

or elements of units accessible. 

Alterations to common areas or parts of facilities that affect

accessibility of existing housing facilities must also be made to

be accessible to and usable by individuals with disabilities, to

the maximum extent feasible.

All alterations must meet the applicable sections of the UFAS

that govern alterations. Further, alterations that require

removing or altering load-bearing structural members are not

required.

Newly Constructed and Rehabilitated Homeownership

Housing

The regulations at 24 CFR 8.29 state that any for-sale housing developed with Federal funds must be made accessible

upon the request of the prospective buyer if an expected occupant has a disability that requires accessibility features. PJs

and their housing partners must remember that a buyer might

request accessible features, and the design must be able to

accommodate such a request. Should a prospective buyer

request a modification to make a unit accessible, the developer

must work with the buyer to provide the specific features that

meet the need(s) of the particular homebuyer or occupant. If

the design features are covered in the accessibility standard

(UFAS, described below), those features must comply with the

standard. The developer shall be permitted, however, to

depart from the standard in order to have the buyer/occupant’s needs met. Note, if the design of a housing unit precludes the developer from making requested changes, the PJ

may be in violation of the Section 504 requirement that the

HOME-funded program be made usable and accessible to persons with disabilities. The requirements for program accessibility are discussed later in this publication. PJs can also

choose to follow the requirements of 24 CFR 8.22 and make

five percent of the for-sale units accessible at construction. 

The HOPE VI Program has developed technical guidance on

how to design and build homeownership structures without

elevators (including town homes) in a way that provides

accessibility. The designs support diverse architectural

features, and the single family nature of neighborhoods.

HUD’s publication, Strategies for Providing Accessibility and

Visitability in HOPE VI and Mixed Income Homeownership

Development is available online through HUD User at

www.huduser.org/publications/pubasst/strategies.html.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

7

Accessibility Standard

The UFAS are a set of design standards that apply to facilities

designed, built, or altered with Federal funds, regardless of

which Federal agency provides funding.4 HUD has adopted

the UFAS standard as the accessibility standard under Section

504.5 A PJ may choose to use a different standard, provided

that it can achieve substantially equivalent or greater access to

and usability of the housing. However, the burden is on the

PJ to establish that the standard meets the minimum regulatory requirements of 24 CFR Part 8 and the accessibility

requirements of UFAS. UFAS contains requirements for scoping (which describe which elements and how many elements

are required to be accessible) and the technical specifications

that dictate the level of accessibility that must be achieved. 

The UFAS-accessible housing standard requires full accessibility of the dwelling unit,6 and the common areas and includes

technical specifications to ensure accessibility for mobility and

sensory impaired persons. Some of the major requirements

included in the UFAS specifications for accessible dwelling

units are: 

• An accessible dwelling unit shall be on an accessible

route;

• At least one full bathroom must be fully accessible,

including toilet, mirror, lavatory, medicine cabinet, and

bathtub or shower; 

• Kitchens must have accessible or adaptable features on

ovens, refrigerator/freezers, dishwashers, storage, and

work surfaces;

• All laundry facilities, whether in the unit or in a

common laundry room, must be on an accessible route.

Washers and dryers in a common space must be frontloading; washers and dryers in a dwelling unit may be

top-loading, but controls must be accessible;

• Living and dining areas must be accessible and on an

accessible route;

• Sleeping areas (the bedroom in a one bedroom unit, and

at least two bedrooms in units with two or more bedrooms) must be accessible and on an accessible route;

• Common spaces and facilities serving individual

accessible dwelling units must be accessible, including

entry walks, parking and public transportation stops (if

provided), trash disposal facilities, and mail boxes;

• Storage, including cabinets, shelves, closets, and drawers

must be accessible;

• All controls for the unit must be in accessible locations,

including heating, ventilation, and air conditioning

controls, and electrical outlets; and

• All accessible spaces must include a 60-inch turning

space (a “T-turn”), including bathrooms and kitchens.

NOTE: This list is not all-inclusive. Architects and

developers must use the actual accessibility specifications

of UFAS to ensure that their housing developments fully

comply with Section 504 and UFAS. 

Common Use Facilities and Accessible Routes

Under UFAS

In order to provide accessibility to the extent needed for

persons with disabilities to have full use and enjoyment of the

4 On July 23, 2004, the U.S. Access Board issued new Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) Guidelines

that cover new construction and alteration of a broad range of facilities in the private and public sectors and serve as the basis for enforceable 

accessibility standards issued by Federal Agencies, including HUD. These Guidelines, once adopted by HUD, will replace the current 

Uniform Federal Accessibility Standards (UFAS). However, they will only apply to new construction and planned alterations and generally 

will not apply to existing facilities except where altered. HUD recipients are not required to comply with the new guidelines until such time 

as HUD adopts them as enforceable standards; however, recipients are free to use them before they are adopted in lieu of the current UFAS. 

Information about the new guidelines may be obtained from the Access Board website at: http://www.access-board.gov/ada-aba.htm

5 See 24 CFR 8.32.

6 For those units that are required to be UFAS-accessible in accordance with 24 CFR 8.22(b) and 8.23, Section 504 includes the concept of

adaptability (defined at 24 CFR 8.3) which means the ability of certain elements of a dwelling unit, such as kitchen counters, sinks, and grab

bars, to be added to, raised, lowered or otherwise altered, to accommodate the needs of persons with or without disabilities, or to accommodate the needs of persons with different types or degrees of disability. However, to ensure that occupants know the existence of adaptable

features, UFAS requires that consumer information be provided in each adaptable dwelling unit available for occupancy. As set forth in

UFAS, the requisite consumer information should contain, at a minimum: (1) notification of the alternate heights available for the kitchen

counter and sink, and the existence of removable cabinets and bases, if provided, under counters, sinks, and lavatories; (2) notification of the

provisions for the installation of grab bars at toilets, bathtubs, and showers; (3) notification that the dwelling unit is equipped to have a visual emergency alarm installed; (4) identification of the location where information and instruction are available for changing the height of

counters, removing cabinets and bases, installing a visual emergency alarm system, and installing grab bars; (5) notification that the dwelling

unit has been designed in accordance with Uniform Federal Accessibility Standards. See UFAS §§ 4.34.3-4.34.4 (1)-(5). However, if a

HUD-assisted provider chooses to build UFAS-adaptable units instead of UFAS-accessible units, the housing provider is responsible for making the unit fully accessible as soon as it is needed by a person with a disability, at the housing provider’s expense. When developing adaptable units, housing providers should plan and budget for their possible conversion to full accessibility.
Fair Housing for HOME Program Participants

8

dwelling, newly constructed and rehabilitated multifamily

HOME projects that are subject to Section 504 must have

accessible routes into and throughout the property and must

provide accessibility to the common areas that are available for

use by residents without disabilities, including parking,

reception and common areas, laundry facilities, mailboxes, and

public transportation stops (if provided). This means that

owners and/or developers must ensure that all elements of the

development are accessible to and usable by persons with

disabilities. This includes the units, accessible routes, and

common use areas as well as one-of-a-kind amenities or

facilities such as the management office, a single public

restroom in the lobby, or the mailroom, if these amenities are

provided. 

In making physical changes to common areas, facilities, and

parking, PJs and their housing partners must follow the

UFAS, or use other methods that provide substantially equivalent or greater access to and usability of the building. In addition to the accessibility requirements for UFAS-accessible

units, UFAS sets forth accessibility standards for common use

areas. The following highlight some of the common area

accessibility provisions of UFAS: 

• If provided, elevators must be on an accessible route and

must contain features to accommodate those with

mobility and sensory impairments when accessible units

are located above or below accessible grade level.

• Entrances that connect by an accessible route to public

transportation stops, to accessible parking and passenger

loading zones, and to public streets or sidewalks if available must be made accessible. For housing with one to

four- family dwellings where accessible entrances would

be extraordinarily costly due to site conditions or local

code restrictions, accessible entrances are required only

to those buildings containing accessible dwelling units.

• The project must have at least one accessible route to

connect the accessible entrances with all accessible

spaces and elements within the dwelling units. 

• At least one of each type of common area and amenity

in each project must be accessible and must be located

on an accessible route to any accessible dwelling unit.

Mechanical rooms and other spaces need not be made

accessible, when their intended use does not require

accessibility by the public, by tenants, or by employees with

physical disabilities. 

NOTE: This list is not all-inclusive. Architects and

developers must use the actual accessibility specifications

of UFAS to ensure that their housing developments fully

comply with Section 504 and UFAS. 

The Section 504 regulations also dictate that, to the maximum extent feasible, accessible units must be distributed

throughout the project and sites, and must be made available

in a sufficient range of sizes and amenities so as not to limit

choice.7 For example, if a project has one-, two-, and threebedroom units, there should be accessible units of each size

throughout the project site. 

In order to ensure that plans for new construction or rehabilitation of rental housing meet the full accessibility standards,

PJs and their housing partners should only contract with

architects, developers and building contractors who are experienced in the accessibility provisions of UFAS, and the accessibility provisions of the Fair Housing Act Guidelines. 

Fair Housing Act Design and Construction

Standard

The Fair Housing Act also establishes accessibility requirements for residential housing to ensure a minimum degree of

accessibility for persons with disabilities. These requirements

apply to all newly constructed housing built for first occupancy after March 13, 1991.8 For housing that is developed with

HOME funds, these requirements apply together with, not in

lieu of, the Section 504 accessibility requirements. 

Scope of Coverage for Development Activities

The Fair Housing Act’s design and construction standards

apply to new construction of “covered multifamily dwellings”

built for first occupancy after March 13, 1991. First occupancy is defined as “a building that has never before been used for

any purpose.” However, the Act’s requirements would also

apply to an addition of five or more dwelling units as long as

this is a new addition to a building and not rehabilitation.9

“Covered multifamily dwellings” is defined as “(1) buildings

having four or more units, if such buildings have one or more

elevators; and (2) ground floor units in other buildings consisting of four or more units.” This means that in buildings

with elevators, all of the units, that is 100 percent, are covered. In buildings without elevators, only the ground floor

71 See 24 CFR 8.26.

8 See 100.200 et. seq.

9 See 100.200 et. seq.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

9

units are covered, but this means 100 percent of the ground

floor units. Note, there can be more than one ground floor in

a development. For example, a building built into a hill with

at-grade entrances on the first and second floor, would have

two ground floors that must meet the Fair Housing Act

requirements. 

The Fair Housing Act requirements apply to privately-owned

housing as well as housing that receives state or Federal funds,

and applies to both rental and homeownership units, as long

as there are four or more units in the building. Types of

dwelling units covered include housing where there may be

sleeping units and shared toilet or kitchen facilities. Examples

of covered units that may be funded by the HOME Program

include apartments, condominiums, single-story townhouses,

assisted living facilities, and single-room occupancy units.

Transitional housing units are considered residences covered by

the Fair Housing Act. Note, however, that non-elevator

townhouses which are multi-story, that have finished living

space on more than one floor, are not typically covered. Such

units are not considered covered multifamily dwellings unless

they have elevators. 

Since the Fair Housing Act applies to both privately-owned

and Federally assisted housing, coverage is determined based

on which dwelling units are “covered multifamily dwellings”

and not whether the project is HOME-assisted. Note, the

Fair Housing Act design and construction requirements do

not apply to rehabilitated housing. 

Accessibility Standard

The Fair Housing Act’s accessible design and construction

requirements consist of seven basic requirements. These

requirements are found in the regulations at 24 CFR

100.205(c):

1. At least one accessible building entrance on an accessible

route;

2. Accessible and usable public and common use areas;

3. Doors that allow passage into and within all premises

being wide enough to allow passage by persons using

wheelchairs;

4. Accessible routes into and through the covered unit(s);

5. Light switches, electrical outlets, thermostats, and other

environmental controls in accessible locations;

6. Reinforced walls in bathrooms for later installation of

grab bars; and

7. Usable kitchens and bathrooms.

The Fair Housing Act does not specify a standard for accessible design; however, the Act and the implementing regulations state that compliance with the appropriate requirements

of the American National Standards Institute (ANSI) A117.1

standard satisfies the Act’s accessibility requirements. On

March 6, 1991 HUD published the final Fair Housing

Accessibility Guidelines in the Federal Register to provide technical guidance on how to meet the specific accessibility and

adaptability design requirements of the Fair Housing Act.

These guidelines, largely based on the ANSI A117.1 standard,

provide guidance on what HUD believes meet the minimum

expectations for compliance under the Fair Housing Act. The

Guidelines are not mandatory, but provide a safe harbor that

will illustrate acceptable methods of compliance with the Fair

Housing Act. 

Other Safe Harbors Under the Fair Housing Act

Currently HUD recognizes the following eight documents as

providing a safe harbor for compliance with the Fair Housing

Act’s design and construction requirements to ensure

accessibility:

• Fair Housing Accessibility Guidelines published on

March 6, 1991 by HUD, and the “Supplemental Notice

to Fair Housing Accessibility Guidelines: Questions and

Answers About the Guidelines,” published June 28,

1994.

• Fair Housing Act Design Manual, published by HUD in

1996 and updated in 1998. 

• ANSI A 117.1-1986 (American National Standard for

Buildings and Facilities: Providing Accessibility and

Usability for Physically Handicapped People), when used

with the scoping requirements contained in the Fair

Housing Act, HUD’s implementing regulations, and the

Guidelines.

• CABO/ANSI A 117.1-1992. (Guidelines for Accessible

and Usable Buildings and Facilities), when used with the

scoping requirements contained in the Fair Housing Act,

HUD’s implementing regulations, and the Guidelines.

• ICC/ANSI A 117.1-1988 (Accessible and Usable

Buildings and Facilities), when used with the scoping

requirements contained in the Fair Housing Act, HUD’s

implementing regulations, and the Guidelines.

• Code Requirements for Housing Accessibility (CRHA),

published by the International Code Council, October

2000.

• International Building Code 2000 (IBC), published by

the International Code Council, as amended by the

2001 Supplement to the International Codes.
Fair Housing for HOME Program Participants

10

• International Building Code 2003 (IBC), published by

the International Code Council. Use of the IBC 2003 as

a safe harbor is conditioned on the following clarification:

— International Code Council interprets Section

1104.1, and specifically, the exception to Section

1104.1, to be read together with Section 1107.4,

and that the Code requires an accessible pedestrian

route from site arrival points to accessible building

entrances, unless site impracticality applies.

Exception 1 to Section 1107.4 is not applicable to

site arrival points for any Type B dwelling units

because site impracticality is addressed under

Section 1107.7.

Because the three editions of the ANSI A117.1 standard

includes only technical requirements, it is necessary to use these

standards with the Fair Housing Act, HUD’s implementing

regulations, and the Fair Housing Accessibility Guidelines for

the scoping requirements.

More information on the technical requirements of the Fair

Housing Act’s design and construction standards is available at

HUD’s Fair Housing and Equal Opportunity (FHEO) division

website at www.hud.gov/offices/fheo, and on the Fair Housing

Accessibility First website at www.fairhousingfirst.org. For

additional information specifically about these model building

codes as safe harbors under the Fair Housing Act, see

www.hud.gov/offices/fheo/disabilities/modelcodes/modelcodes

final.pdf and www.hud.gov/offices/fheo/disabilities/modelcodes/

ibcdraft03.pdf.

Common Use Facilities and Accessible Entrances Under Fair

Housing Act

The Fair Housing Accessibility Guidelines, Fair Housing Act

Design Manual, and ANSI 117.1 provide technical guidance

on meeting the accessibility requirements for units as well as

common use facilities, entrances, and accessible routes. 

Accessible building entrances ensure access into the property.

The Fair Housing Act requires all covered multifamily

dwellings built for first occupancy after March 13, 1991 to

have at least one building entrance on an accessible route.

The Fair Housing Act implementing regulations define the

term “accessible route” as a “continuous unobstructed path

connecting accessible elements and spaces in a building or

within a site that can be negotiated by a person with disabilities

using a wheelchair and usable by persons with other types of

disabilities.” These comprise both interior and exterior

accessible routes. The Fair Housing Accessibility Guidelines

specify one very narrow exception to this requirement: when an

accessible route is infeasible because of the nature of the terrain

surrounding the site (or other unusual site characteristics). The

requirements for site impracticality are described in the

Guidelines, and the burden is on the developer to establish that

the site falls within these requirements. In addition to the

accessible entrance, housing must include accessible routes into

and through the covered unit(s).

Public and common use areas must be readily accessible to

and usable by persons with disabilities.10 This includes the

requirement that all doors of the project (in the public spaces,

as well as in the dwelling unit itself) must allow passage into

and within all premises, being wide enough to allow passage

by persons using wheelchairs.

Applying Both Section 504 and the Fair

Housing Act Requirements

Section 504 and the Fair Housing Act have different requirements as they relate to both the scope of applicability, and the

technical specifications to be met to attain accessibility. In general, Section 504 requires that a fewer number of units must be

made accessible, but the technical specifications apply a much

stricter standard of accessibility. The Fair Housing Act, on the

other hand, has a broader scope and applies to a larger number

of units; in general, it imposes a less strict technical standard.

However, some elements of the Fair Housing Act requirements are stricter than UFAS, and when both Section 504 and

Fair Housing Act requirements apply to the same units in a

project, one cannot presume that compliance with UFAS also

ensures compliance with the Fair Housing Act. The following

are the most significant differences between the two:

• When using Fair Housing Act Guidelines Bathroom

Specification A, then, in addition to meeting

Specification A requirements for the bathroom, all other

bathrooms in the unit, if any, must also meet the

maneuvering and clear floor space requirements; be on

an accessible route; and have usable doors, reinforcements in the walls for grab bars, and accessible switches

and outlets.11 UFAS, on the other hand, requires only

10 See 24 CFR 100.205(a) and (c)(1).

11 Note, when using Bathroom Specification B under the Fair Housing Act Guidelines, there are no additional requirements imposed on any

other bathrooms in the unit because Specification B provides for a higher level of accessibility than Specification A. However, a Specification B

bathroom is not as accessible as a UFAS bathroom, and thus in an UFAS-accessible unit, Specification B is not a substitute for the UFAS

requirements.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

11

one bathroom to be fully accessible. The full accessibility standard is more stringent than that

imposed by the Guidelines for Bathroom

Specification A. UFAS does not require that the

other bathrooms in the unit be on an accessible

route; have accessible doors, light switches, and outlets; or have reinforced walls for grab bars. 

• In dwelling units with two or more bedrooms,

UFAS requires at least two accessible bedrooms;

however, the Fair Housing Act requires an accessible

route throughout the unit, including into all bedrooms. The Fair Housing Act also requires doors

and switches and outlets in all bedrooms to comply. 

When a project is subject to both Section 504 and the

Fair Housing Act, steps must be taken to ensure that the

five percent UFAS-complying units also meet these additional requirements of the Fair Housing Act. 

Where two or more accessibility standards apply, the

housing provider is required to apply both standards, so

that the maximum accessibility is obtained. Therefore,

newly constructed projects that are served by an elevator,

and all ground floor units in a non-elevator building of

four or more units must meet the Fair Housing Act

design and construction requirements and, if the project

has five or more attached or detached units, under Section

504, the project must also include full accessibility (UFAS

standard) for mobility-impaired persons in a minimum of

five percent of its total units, but no fewer than one unit,

whichever is greater. It must also include accessibility for

persons with hearing or vision impairments in an additional two percent of the total units (but no fewer than

one unit, whichever is greater) in accordance with 24 CFR

8.23(a). UFAS units would also have to be dispersed in

terms of unit size and location.

When will both standards apply?

When HOME funds are invested in new

construction of multifamily rental projects with

five or more units, the project must meet the

design and construction requirements of both

the Fair Housing Act and Section 504. In

addition to the UFAS-complying units, in

elevator buildings, all units must comply with

the Fair Housing Act standards; in non-elevator

buildings, only the ground floor units must

comply. Common spaces must be accessible in

accordance with both standards.

Examples to Demonstrate How to Apply Both Standards

Scenario 1: A 40-unit rental building with an elevator is newly

constructed with HOME Program funding. All units are two-bedroom. 

How to apply the standards: This building is required to have a

minimum of five percent of its total dwelling units (two units) be built

to be fully accessible (UFAS standard) to persons with mobility

impairments in accordance with Section 504. The remaining dwelling

units (38 units) must comply with the design and construction

standards of the Fair Housing Act. Two percent of the units (one of the

38) must also be made accessible for persons with vision and hearing

impairments. In addition, common use and common facilities must

be made accessible in accordance with both UFAS and the Fair

Housing Act standard. 

Note: If this building were rehabilitated with HOME funds, the Fair

Housing Act design and construction standards would not apply.

Scenario 2: A 100-unit, two-story garden apartment development

with no elevator is newly constructed with HOME Program funds. The

building is comprised of one- and two-bedroom units. Half of its

dwelling units (50 units) are on the ground floor and half (50 units)

are on the second floor. 

How to apply the standards: Under the requirements of Section 504,

this building is required to have a minimum of five percent of the total

number of units (five units) made to be fully accessible (UFAS

standard) to persons with mobility impairments in accordance with

Section 504. Since the building does not have an elevator, these five

units must be located on the ground floor in order to have an

accessible route. An additional two percent of the total dwelling units

(two units) must be made accessible for people with vision and

hearing impairments. These units may be located anywhere in the

building. In addition, all ground floor units must comply with the Fair

Housing Act design and construction standards, including those made

accessible for persons with mobility impairments under UFAS, and

those made accessible to persons with vision or hearing impairments

if they are located on the ground floor. Common use and common

facilities must be made accessible in accordance with both UFAS and

the Fair Housing Act standard.

Scenario 3: A PJ constructs 50 two-story rental townhouses with

HOME Program funds. 

How to apply the standards: A minimum of five percent of the units

in this building (three units) must be built to be accessible to persons

with mobility impairments in accordance with the UFAS standard, and

an additional two percent of the units (one unit) must be made to be

accessible to persons with a sensory impairment. Common use and

common facilities must be made accessible in accordance with UFAS.

However, this development is not a covered multifamily dwelling for

purposes of the design and construction requirements of the Fair

Housing Act since two-story dwellings are not considered ground floor

units. The builder is free to make the required accessible units single

story. The builder is not required to use a design that includes an

elevator. 

Note: If the townhouses were single-story townhouses (and therefore

all ground floor units), the project would have to comply with both

Section 504 and the Fair Housing Act design and construction

requirements.
Fair Housing for HOME Program Participants

12

To meet both sets of requirements, the units (five percent)

designed to be accessible for persons with mobility impairments using the UFAS standard will meet a stricter degree of

accessibility than what is required under the Fair Housing

Act. In most respects, the UFAS standards exceed the Fair

Housing Act standards. However, these units also need to

incorporate those elements that are stricter under the Fair

Housing Act, as previously discussed. In addition, the two

percent of the units that are made accessible to those with

hearing and/or vision impairments as required under Section

504 must also be made accessible to those with mobility

impairments, to the extent required by the Fair Housing Act. 

Visitability

It is recommended that all design, construction, and

alterations incorporate, whenever practical, the concept of

“visitability” for any units not subject to either the

requirements of Section 504 and/or the Fair Housing Act.

(i.e., most town homes). In simple terms, increasing

accessibility to all housing stock in the nation’s neighborhoods

enables all persons to have visitors by friends, family, and

neighbors who have a disability. In addition, residents who live

in a visitable unit can “age in place”—that is, they are able to

stay in their unit as they grow older and in need of an

accessible home. 

A visitable dwelling unit is one that provides:

• At least one entrance at-grade (no steps), approached by

an accessible route, such as a sidewalk. While the front

entrance is preferable, a side or back entrance is workable; and

• An entrance door and all interior passage doors that are

at least two feet, ten inches wide, offering 32 inches of

clear passage space.

HUD strongly encourages all recipients to use these construction standards for as many units as possible within a project,

whenever it is feasible to do so. Although it is not required,

constructing units to meet a very minimal standard of accessibility that might be needed by a visitor or aging resident generally adds very little cost to housing development. Not only

does this standard improve the quality of life and opportunity

for independence for persons with disabilities, it expands the

availability of housing options for individuals who may require

some, but not complete, accessibility. It will assist project

owners in making reasonable accommodations and reduce, in

some cases, the need for structural modifications or transfers

when individuals become disabled in place. Visitability can

also improve the marketability of units. 

The design and construction requirements under Section 504

or the Fair Housing Act do not apply to homeowner-occupied

rehabilitation programs.12 That said, however, when PJs

invest HOME funds in homeowner-occupied rehabilitation

programs, HUD encourages PJs and their housing partners to

build in accessible design features during rehabilitation to create at least a minimal level of accessibility to the unit, and to

help owners understand the benefits of adaptable design. It is

important because it creates additional accessible units in the

PJ’s housing stock. It also ensures “visitability.” 

Program Accessibility

In addition to its nondiscrimination and physical accessibility

requirements, Section 504 requires that a recipient’s program,

when viewed in its entirety, is usable and accessible to persons

with disabilities. This obligation applies to the PJ and its

housing partners. It includes, but is broader than, the obligation to provide accessible units in accordance with 24 CFR

8.22 and 8.23. This obligation also includes ensuring that:

• All activities, including public hearings, tenant briefings,

and meetings are held in locations that are accessible to

persons with disabilities.

• Information about all programs and activities is

disseminated in a manner that is accessible to persons

with disabilities. Auxiliary aids and special

communication systems should be used for program

outreach, public hearings related to housing programs,

and other program activities.

• Reasonable steps are taken to provide information about

available accessible units to eligible persons with disabilities. A PJ and its housing partners must see that rental

agents make a good faith effort to offer available, accessible units to persons with disabilities before offering

them to applicants who do not have disabilities.

Accessible units should be offered first to persons with

disabilities residing in the development in a non-accessible unit; second, to persons with disabilities on a waiting

list; and third, to others. 

12 The Section 504 regulations apply to recipients of Federal financial assistance, including a state or political subdivision of a state, any public or 

private agency, institution, organization, or other entity or any persons to which Federal financial assistance is extended for any program or 

activity. However, the ultimate beneficiary of the assistance is not considered a recipient. Thus, a family that receives HOME funds for the 

rehabilitation of an owner-occupied unit is not subject to the Section 504 requirements since it is the beneficiary of the HOME funds, not the 

recipient.
Promoting Fair and Accessible Housing Opportunities in HOME Projects

13

• Rules, policies, practices, procedures, and facilities are

modified, as needed, to ensure that persons with disabilities have an opportunity to make effective use of the

housing program, unless such modifications constitute a

financial and administrative burden, or are a fundamental alteration of the housing program.

PJs and their housing partners are strongly encouraged to

conduct self-evaluations of their programs and activities, or

update previously conducted self-evaluations in order to evaluate their compliance with these requirements. Such evaluations are referenced at 24 CFR 8.51. Initially, such self-evaluations were required under Section 504. Although the regulatory deadlines are long past, self-evaluation continues to be an

excellent management tool for ensuring that a recipient’s current policies and procedures comply with the requirements of

Section 504. The self-evaluation process should involve persons with disabilities, as well as agencies or other experts who

work regularly with accessibility standards. A self-evaluation

should include a review of current policies and practices to

determine if they adversely affect the full participation of individuals with disabilities in programs, activities, and services. 

Conclusion

The siting, design, and construction of affordable housing

assisted with HOME Program funds must be executed in a

manner that promotes greater choice of housing opportunities

to ensure that low-income members of each of the protected

classes has a range of housing options similar to the range of

options afforded other low-income households. Newly constructed rental housing can be built only in locations that

meet specific site and neighborhood standards, as determined

by the PJ. Housing that is constructed with HOME Program

funds must be designed and constructed to be accessible to

persons with disabilities, in accordance with the requirements

of both Section 504 and the Fair Housing Act.

Additional Resources

The regulations governing the HOME Program can be found

at 24 CFR Part 92. The home page for the HOME Program

is www.hud.gov/offices/cpd/affordablehousing/programs/

home/. From this site, one can access the statute, regulations,

technical guidance, training opportunities, and a wealth of

resources that facilitate the operation of the HOME Program.

The Fair Housing Act can be found at www.usdoj.gov/crt/

housing/title8.htm. Its implementing regulations are at 24

CFR Part 100, et. al.

Section 504 of the Rehabilitation Act of 1973 can be found

online at www.hud.gov/offices/fheo/disabilities/504keys.cfm.

Its implementing regulations are at 24 CFR Part 8.

Frequently asked questions about real-life application of

Section 504 can be found at www.hud.gov/offices/fheo/

disabilities/sect504faq.cfm.

The Fair Housing Accessibility Guidelines can be found online

at www.hud.gov/library/bookshelf09/fhefhag.cfm. 

A copy of the Uniform Federal Accessibility Standard (UFAS)

is available online at www.access-board.gov/ufas/ufashtml/

ufas.htm.

HUD has issued two reports that analyze the model building

codes that have been identified as safe harbors for compliance

with the Fair Housing Act. For more information, see:

• Final Report of HUD’s Review of Model Building Codes,

published in the Federal Register on March 23, 2000. It

is available online at www.hud.gov/offices/ fheo/disabilities/modelcodes/modelcodesfinal.pdf; and

• Report on the U.S. Department of Housing and Urban

Development’s Review of the Fair Housing Accessibility

Requirements in the 2003 International Building Code.

Issued August 6, 2004. It is available online at

www.hud.gov/offices/fheo/disabilities/modelcodes/ibcdraft03.pdf.

Fair Housing Accessibility FIRST, sponsored by HUD,

promotes compliance with the Fair Housing Act design and

construction requirements by housing professionals. More

information can be found at www.fairhousingfirst.org.

The Access Board is an independent Federal agency devoted

to promoting accessibility for people with disabilities. More

information about its activities, the UFAS standard, and links

to resources for accessible development can be found at

www.access-board.gov/.

The Center for Universal Design is a national research, information, and technical assistance center that evaluates, develops, and promotes universal design in housing, public and

commercial facilities, and related products. More information

can be found at www.design.ncsu.edu/cud/index.html

About the Series:

Fair Housing for HOME

Program Participants

The Fair Housing for HOME Program Participants series is

designed to help PJs and their housing partners understand
Fair Housing for HOME Program Participants

14

and comply with Federal fair housing laws and regulations in

the implementation of their HOME Program activities. In

general, these laws:

• Prohibit discrimination in housing and housing-related

transactions by PJs and their housing partners; 

• Require PJs to affirmatively further fair housing;

• Prescribe design and construction standards to ensure

equal access to housing by persons with disabilities; 

• Promote the use of minorities and women, and minority

and women business enterprises in Federally funded contracting opportunities; 

• Encourage the creation of employment opportunities for

low-income residents of neighborhoods where HOME

Program activities are undertaken; and

• Require the implementation of affirmative marketing

strategies and outreach to those segments of the populations identified as least likely to apply for the housing

without such outreach.

The Fair Housing for HOME Program Participants series contains

the following publications:

• Fair Housing for HOME Program Participants:

Understanding the Basics. This publication identifies the

protected classes, describes the nondiscrimination provisions of the fair housing laws, and defines prohibited discriminatory actions. In addition, it briefly discusses

issues related to affirmatively furthering fair housing and

the provision of housing for persons with disabilities.

(These topics are explored in detail in subsequent publications of this series). All subsequent publications are

based on the assumption that the reader is familiar with

the fundamental requirements outlined in this publication.

• Fair Housing for HOME Program Participants: Affirmatively

Furthering Fair Housing describes a PJ’s obligation to

affirmatively further fair housing and reviews eligible

uses of HOME Program funds to promote fair housing. 

• Fair Housing for HOME Program Participants: Creating

Economic Opportunity reviews the requirements designed

to create economic opportunities for minorities and

women, minority and women business enterprises, and

low- and very low-income residents living in HOME

project areas.

• Fair Housing for HOME Program Participants: Promoting

Fair and Accessible Housing Opportunities in HOME Projects

describes the applicability of fair housing laws to rental

and homeownership housing development, new construction, and rehabilitation. This publication provides

guidance on site and neighborhood standards, recordkeeping, and design and construction requirements to

ensure accessibility. 

• Fair Housing for HOME Program Participants: Tenant-Based

Rental Assistance discusses tenant selection criteria and

procedures and reasonable accommodations and modifications under the Fair Housing Act and program accessibility under Section 504.

The Fair Housing for HOME Program Participants series will help

managers, program staff, and procurement staff of the PJ and

its housing partners. These entities must comply with fair

housing requirements when administering programs and

developing projects to be funded by the HOME Program. 

The Fair Housing for HOME Program Participants series focuses

on Federal fair housing laws related to housing development

and management that are implemented and monitored by

HUD. It provides guidance on how PJs and their housing

partners can comply with (1) the nondiscrimination mandates

of the civil rights laws (focusing primarily on the Fair Housing

Act and Section 504 of the Rehabilitation Act of 1973), and

Title II of the Cranston-Gonzalez National Affordable

Housing Act of 1990; and (2) the affirmatively furthering fair

housing mandate of Section 808(e)(5) of the Fair Housing Act.

The HOME Program is also subject to Title VI of the Civil

Rights Act of 1964 and its implementing regulations at 24

CFR Part 1, which prohibit recipients of Federal assistance

from discriminating on the basis of race, color, and national

origin. 

The series does not provide guidance on state and local fair

housing requirements, which may differ from Federal laws.

PJs and their housing partners that are unfamiliar with state

and local requirements can identify resources through the

National Fair Housing Advocate OnLine at

www.fairhousing.com. Likewise, the series does not provide

guidance on the Americans with Disabilities Act of 1990

(ADA) requirements, which are administered by the

Department of Justice (DOJ). State and local governments

are subject to ADA requirements, and can get more information about their obligations from the DOJ website at

www.usdoj.gov/crt/ada/adahom1.htm. 

Readers that have specific questions about interpretation of

civil rights or fair housing laws are encouraged to seek the

advice of legal counsel.

HOME Model Program Guides

Fair Housing for HOME Program Participants is a HOME model

program guide published by the U.S. Department of Housing

and Urban Development’s Office of Affordable Housing
Promoting Fair and Accessible Housing Opportunities in HOME Projects

15

Programs. The HOME model program guides provide

technical assistance to jurisdictions that are implementing

HOME Program activities. Additional copies of any of the

publications in the Fair Housing for HOME Program Participants

series, as well as other HOME model program guides, can be

obtained from Community Connections Information Center at

1-800-998-9999. For a list of available model program

guides, visit the HOME Program web site at

www.hud.gov/offices/cpd/affordablehousing/library/

modelguides/index.cfm. 

For more information about the HOME Program, visit

www.hud.gov/offices/cpd/affordablehousing/programs/home/

index.cfm.
U.S. Department of Housing and Urban Development

Office of Community Planning and Development

HUD-2005-10-CPD

May 2005
UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY

U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE

U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY

U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL

ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED

RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING

ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U

TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U PPROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS

U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING

U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME

PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR

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ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING

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TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U

CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME PROJECTS

U TENANT-BASED RENTAL ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING

U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING OPPORTUNITIES IN HOME

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FURTHERING FAIR HOUSING U CREATING ECONOMIC OPPORTUNITY U PROMOTING FAIR AND ACCESSIBLE HOUSING

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ASSISTANCE U UNDERSTANDING THE BASICS U AFFIRMATIVELY FURTHERING FAIR HOUSING U CREATING ECONOMIC

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