HUD Issues Fair Housing Guidance Regarding Local Nuisance Ordinances

HUD’s Office of General Council issued guidance on applying fair housing standards to the enforcement of local nuisance and crime-free ordinances. The guidance primarily focuses on the impact these ordinances may have on domestic violence victims, but also apply to victims of other crimes and to those in need of emergency services who may be subjected to discrimination prohibited by the Fair Housing Act. The guidance also describes how local and state governments and public housing agencies receiving HUD funds should consider these ordinances when conducting their assessments of fair housing under the Affirmatively Furthering Fair Housing regulations.

On August 17, 29 senators, led by Senator Al Franken (D-MN), sent a letter to HUD Secretary Julián Castro urging HUD to provide written guidance regarding how local nuisance ordinances may violate the Fair Housing Act and the Violence Against Women Act (see Memo, 8/22).

Nuisance conduct often includes what is characterized by an ordinance as an “excessive” number of calls for emergency police or ambulance services, typically defined as just a few calls within a specified period of time by a tenant, neighbor, or other third party, whether or not they are directly associated with the property. In some jurisdictions, an incident of domestic violence is defined as a nuisance without regard to whether the resident is the victim or the perpetrator of the domestic violence.

Some ordinances specifically define “excessive” calls for police or emergency services as nuisances even when the person in need of services is a victim of domestic violence or another crime or otherwise in need of police, medical or other emergency assistance.  Even where ordinances expressly exclude victims of domestic violence or other crimes, victims are still frequently deemed to have committed nuisance conduct because police and other emergency service providers may not log the call as domestic violence.

Nuisance ordinances generally require housing providers to abate the alleged nuisance or risk penalties, such as fines, loss of their rental permits, and condemnation of their properties. Some ordinances may require a housing provider to evict a resident and the household after a specified number of alleged nuisance violations within a specific timeframe.

A number of local governments enforce crime-free lease ordinances or promote crime-free housing programs that incorporate the use of crime-free lease addenda. Some of these ordinances operate like nuisance ordinances and penalize housing providers who fail to evict tenants when a tenant, resident, or other person has allegedly engaged in a violation of a law, regardless of whether the tenant or resident was the victim of the violation.  Crime-free lease addenda often do not provide exceptions for cases where a resident or tenant is the victim of domestic violence or another crime.

Some crime-free housing ordinances mandate or strongly encourage housing providers to implement lease provisions that require eviction based on an arrest alone, and some do not even require an arrest or conviction to evict a tenant. HUD points to the General Counsel’s recent fair housing guidance regarding use of criminal records by housing providers (see Memo, 4/11). The guidance states that a local government’s policies and practices to address nuisances, including enactment or enforcement of a nuisance or crime-free housing ordinance, violate the Fair Housing Act when they have an unjustified discriminatory effect, even when the local government had no intent to discriminate.

Thus, when a policy or practice that restricts the availability of housing on the basis of nuisance conduct has a disparate impact on individuals of a particular protected class, the policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the local government, or if such interest could be served by another practice that has a less discriminatory effect. Discriminatory effects liability is assessed under a three-step, burden-shifting standard requiring a fact-specific analysis (see Memo 2/8/13). The HUD guidance discusses at length the three steps that must be used to analyze whether a local government’s enforcement of a nuisance or crime-free housing ordinance results in a discriminatory effect in violation of the Act.

The guidance is at: