Memo to Members

HUD Proposes to Rescind the Affirmative Fair Housing Marketing Regulations

Apr 21, 2025

A HUD proposal to rescind the affirmative fair housing marketing regulations was listed on the website of the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB). OIRA does not provide a summary of the proposal, unlike what it has done in normal times. This hints at yet another attack on fair housing by the Trump Administration. NLIHC will monitor this proposal and inform Memo readers as it moves from OIRA to HUD for comment. 

The obligation to affirmatively market housing in a way that complies with federal fair housing laws applies to housing insured by the Federal Housing Administration (FHA), assisted with HUD’s Multifamily Assistance programs, and other HUD-subsidized housing, such as the HOME and national Housing Trust Fund programs. The obligation applies to jurisdictions, subrecipients, and project owners. These entities must design and employ marketing plans and/or submit HUD-designed forms that promote fair housing by ensuring outreach to all potentially eligible households, especially those least likely to apply for assistance. Affirmative marketing consists of actions to provide information and otherwise attract eligible persons to available housing without regard to race, color, national origin, sex, familial status (persons with children under 18 years of age, including pregnant women), disability, or religion. The affirmative marketing requirements also apply to projects targeted to people with special needs. 

The affirmative fair housing marketing requirements extend from statute, executive order, and regulation. Statutory authority exists in the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act, and Executive Order 11063, which provide that all federal executive departments and agencies must act to end discriminatory practices in the programs or activities of recipients of federal financial assistance. 

An example of how various FHA and HUD programs are required to comply with affirmative fair housing marketing regulations is a HOME program guidance document, HOMEfires Vol. 14 No. 1, February 2018, summarizing the affirmative marketing procedures for HOME participating Jurisdictions (PJs). The HOME program affirmative fair housing marketing regulations are at §92.351. HOMEfires states that PJs must describe specific steps that must be taken to ensure applicants who are unlikely to apply for housing without special outreach have equal access to housing opportunities generated by the use of HOME program funds. There are five elements that each PJ's marketing procedures must include: 

  1. A description of how the PJ plans to inform the public, subrecipients, owners, and potential tenants about federal fair housing laws and the PJ's affirmative marketing policy;
  2. The requirements and practices that each subrecipient and owner of HOME-funded housing must adhere to in order to carry out the PJ's affirmative marketing procedures and requirements;
  3. A statement of procedures to be used by subrecipients and owners to inform and solicit applications from people in the housing market area who are least likely to apply for the housing without special outreach;
  4. A list of the records the PJ will keep, and the records the PJ will require subrecipients and owners to keep, regarding efforts made to affirmatively market HOME-assisted units, and to assess the results of these actions; and
  5. 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 

PJs must implement their affirmative marketing procedures in projects or programs that they administer directly. PJs must also provide their affirmative marketing procedures to subrecipients that administer all or a portion of the PJ’s HOME program and to owners/developers of HOME projects with five or more HOME-assisted units. The requirement to affirmatively market must be included in the written agreement between the PJ and the subrecipient or owner. The PJ must ensure subrecipients and owners have an understanding of the fair housing practices for advertising and soliciting applications (targeted populations should include those least likely to apply), know what records they must keep to document compliance, and how the PJ will assess the owner's marketing procedures and their success. 

HUD’s Office of Multifamily Housing Programs has a handbook, “Multifamily Asset Management and Project Servicing (4350.1),” which has a chapter noting that one way HUD has implemented its obligation to affirmatively further fair housing (AFFH) is through Affirmative Fair Housing Marketing Plans (AFHMPs). These plans seek to address disparities in exposure to and information about housing options in an attempt to promote fair housing choice and prevent the perpetuation of segregation. The goal of an AFHMP is to achieve a condition in which individuals of similar income levels in the same housing market area have a like range of housing choices available to them regardless of their race, color, national origin, sex, disability, familial status or religion. The plan outlines marketing strategies the property owner must use, including special efforts to attract people who are least likely to apply for housing and to make such people aware of available housing opportunities. The Office of Multifamily Programs developed a form (form HUD-935.2A) that developers must submit. The affirmative fair housing marketing regulations for FHA projects are at 24 CFR Part 200 Subpart M.

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