Affirmative Fair Housing Marketing Requirements for HOME Properties

The HOME final rule (24 CFR 92.351[a]) requires Participating Jurisdictions (PJs) and state recipients to develop, adopt, and follow written affirmative marketing procedures and requirements for rental and homebuyer projects containing five or more HOME-assisted units, regardless of the specific activity the HOME funds will finance. Affirmative marketing requirements also apply to all HOME-funded programs (e.g., homeowner rehabilitation, homebuyer assistance, and tenant-based rental assistance). The PJ, its subrecipients, and project owners it funds must implement the written affirmative marketing procedures for the program or project.

The objective of affirmative marketing is to ensure that PJs, subrecipients, and project owners design and employ marketing plans 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 any of the fair housing protected classes. The affirmative marketing requirements also apply to projects targeted to persons with special needs. If a PJs written agreement with a project owner permits a rental housing project to limit tenant eligibility or to have a tenant preference in accordance with HOME program rules, the PJ must have affirmative marketing procedures and requirements that apply in the context of the limited/preferred tenant eligibility for the project.

The AM procedures must describe specific steps that must be taken to ensure applicants who are unlikely to apply for the housing without special outreach have equal access to housing opportunities generated by the use of the HOME program funds. There are five elements that each PJ or state recipient’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 PJs 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 PJs affirmative marketing procedures and requirements;
  3. A statement of procedures to be used by subrecipients and owners to inform and solicit applications from persons in the housing market area who are least likely to apply for the housing without special outreach;
  4. A list of what records the PJ will keep, and what 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 actions and what corrective actions will be taken when affirmative marketing requirements are not met.

PJs must implement their affirmative marketing procedures in project or programs that they administer directly. PJs must also provide their affirmative marketing procedures to subrecipients that administer all or a portion of the PJs 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 (targeting populations should include those least likely to apply), know what records they must keep documenting compliance, and how the PJ will assess the owner’s marketing procedures and their success.

The HUD field office may request that a PJ provide the marketing procedures during monitoring and may evaluate whether the PJ is ensuring that subrecipients and owners comply with its procedures. Consequently, PJs must evaluate subrecipients and owners’ records during onsite monitoring to ensure compliance and documentation.

There is no submission requirement for affirmative marketing procedures in the HOME regulations. However, as a best practice, HUD recommends that affirmative marketing procedures be included in the Consolidated Plan, so that the procedures are subject to public review and comment. PJs should review their affirmative marketing procedures at least every five years to determine if they are still appropriate to the market, or more frequently if the demographics and market conditions of the jurisdiction have changed significantly.

A key takeaway from these requirements is that it is the PJ that is responsible for preparing the affirmative marketing procedures, and making those procedures know to subrecipients and owners. All owners of HOME-assisted projects should carefully review the written agreement and ensure that the affirmative marketing procedures in the agreement are being followed.