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June 2015 Policy Study, Number 15-6


The Nanny State Is Expanding And Private-Property Rights Are Decreasing


Fair Housing and Impacts on Private-Property Rights



Under commonly accepted private-property-rights ideas one might think you can control the use of your own property, i.e. if you own a property you may or may not rent it to anyone you want.  This is patently not true.  The government’s regulations for fair housing access – controlling who one can rent to, either within or outside of the Section 8 program – are quite strict.


The Civil Rights Act of 1964 contains a Fair Housing Act, contained in Title VI.  It specifies that discrimination on the basis of race, color, or national origin is prohibited in both the rental and sale of residential property.  All organizations such as PHAs, which accept federal government money or grants, must abide by these regulations.[12]  Age discrimination was added later, as were other targeted classes of people, such as disability, religion, gender, family status, or sexual orientation.


Specifically, the HUD website says, “No one may take any of the following actions based on race, color, national origin, religion, sex, familial status, or handicap:


  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Make housing unavailable
  • Deny a dwelling
  • Set different terms, conditions, or privileges for sale or rental of a dwelling
  • Provide different housing services or facilities
  • Falsely deny that housing is available for inspection, sale, or rental
  • For profit, persuade owners to sell or rent (blockbusting) or
  • Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.”[13]

Two of the reasons an owner can deny renting to someone is if they are “a direct threat to the safety of others” or currently use illegal drugs.  The illegal drug use issue also includes consideration of whether or not an individual has an arrest record and criminal convictions.


Additionally, if the only income a Section 8 applicant has is other government support, such as welfare or social security disability, they may be denied.[14]  This is because if the tenant receives a welfare check and does not pay his or her rent, the landlord is unable to sue the government to “garnish” the income for rent.  In contrast, an employee’s wages may be garnished.  If the potential tenant has a history of not paying his or her rent, has a bad credit history, prior bankruptcies, bad or non-existent references, or has been evicted from other housing, the landlord can also turn down the application.  Finally, except for service-support animals, a landlord may turn down tenants with a pet or charge an additional fee to cover potential pet damage.


When leasing property on the non-governmental market, if an owner uses a rental or management company all of these factors also apply.  Additionally, one may not deny an application because the potential tenant has children, though it is legal to ask for applications from every potential resident over age 18 and to run credit and legal background checks on all tenants.  


If the federal department of Housing and Urban Development is successful at finalizing the proposed Affirmatively Further Fair Housing (AFFH) regulation this summer, the private-property rights of owners will be further eroded.[15]


According to the press release announcing this proposed regulation, “HUD will provide data for every neighborhood in the country, detailing the access African American, Latino, Asian, and other communities have to local assets, including schools, jobs, transportation, and other important neighborhood resources that can play a role in helping people move into the middle class.  Long-term solutions will involve various strategies, such as helping people gain access to different neighborhoods and channeling investments into underserved areas,” said Secretary Shaun Donovan.[16]


State and local governments receiving federal tax dollars through the Community Development Block Grants (CDBG), HOME Investment Partnerships (HOME), Emergency Solutions Grants (ESG), Housing Opportunities for Persons With AIDS (HOPWA), and the PHAs will be required to follow the AFFH rules.[17]


The required analysis and resulting government actions would focus on “improving integrated living patterns and overcoming historic patterns of segregation; reducing racial and ethnic concentrations of poverty; reducing disparities by race, color, religion, sex, familial status, national origin, or disability in access to community assets such as education, transit access, and employment, as well as exposure to environmental health hazards and other stressors that harm a person’s quality of life; and responding to disproportionate housing needs by protected class.”[18]


To implement this regulation, HUD would provide extensive, nationally uniform data and encourage additional regional and local data to be used in establishing fair housing targets, addressing all of the concern areas and groups.  The plan provided by the local/regional group may be rejected if it is substantially incomplete or “includes priorities or goals” found to be “materially inconsistent” with the original data provided.[19] 


The regional Assessment of Fair Housing committees would not have to be contiguous and may cross state boundaries, according to HUD statements.[20]




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