Hud Proposes to Eliminate Disparate Impact Regulations: What Florida Associations Need to Know

On January 14, 2026, the U.S. Department of Housing and Urban Development (“HUD”) published a proposed rule that would eliminate the federal regulations governing disparate impact claims under the Fair Housing Act (“FHA”). For condominiums and homeowners associations, this development understandably raises important questions about compliance and exposure to liability under both federal and Florida state law.

Disparate impact liability under the FHA prohibits housing practices that appear and are applied neutrally on their face but have a discriminatory effect on individuals based on race, color, religion, sex, disability familial status, or national origin. Housing providers, such as condominium and homeowners associations, may be exposed to disparate impact liability even when the provider has no intent to discriminate if the charging party can prove that the interest relied upon by the provider “could be served by another practice that has a less discriminatory effect.” 24 CFR § 100.500

For example, HUD released a memorandum on April 4, 2016, that explained that blanket criminal history bans could violate the FHA under a disparate impact theory because racial and ethnic minorities are arrested and incarcerated at disproportionate rates compared to their share of the general population. As such, HUD advised that exclusionary policies based on criminal history must be tailored and justified, which likely includes taking into account the nature and severity of the offense and the time elapsed since the conviction.

Importantly, though, the FHA does not explicitly address disparate impact liability. It is instead addressed in HUD’s regulations, published in the Code of Federal Regulations, which are administrative rules created by the agency to implement and interpret the FHA. However, HUD’s January 14, 2026, publication proposes removing the relevant section, 24 CFR § 100.500 in its entirety. HUD’s proposal reflects the policy articulated in Executive Order 14281, issued on April 23, 2025, which asserts that disparate impact liability creates a “near insurmountable presumption of discrimination” based merely on differences of outcomes, even absent discriminatory intent or facially discriminatory policies. The Order consequently directs all federal agencies to deprioritize enforcement of statutes and regulations that include disparate impact liability, review and report on existing regulations that impose such liability, assess pending investigations and civil suits based on disparate impact theories, and evaluate consent judgments and permanent injunctions relying on such theories. Given such conclusion and the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which eliminated judicial deference to agency interpretations of ambiguous statutes, HUD contends that courts, rather than a federal agency, should make determinations related to the interpretation of disparate impact liability under the FHA.

Note that the proposed changes would only eliminate federal regulations, not the Fair Housing Act statute itself or the case law that has previously interpreted it. As HUD stated in its 2013 final rule which added 24 CFR § 100.500, “all federal courts of appeals to have addressed the issue agree that liability under the Fair Housing Act may arise from a facially neutral practice that has a discriminatory effect,” and courts had been applying discriminatory effects standards since at least 1974. The 2013 regulations merely formalized the three-part burden-shifting test that many federal courts of appeals were already using to some degree in order to provide nationwide consistency and greater clarity. Therefore, even if HUD’s regulations are eliminated, federal courts retain the authority to recognize and adjudicate disparate impact claims under the Fair Housing Act based on existing case law and Supreme Court precedent.

At the state level, Florida’s Fair Housing Act, codified at Chapter 760, Florida Statues, remains in effect, and the Florida Commission of Human Relations (“FCHR”), which functions as the state-level counterpart to HUD that investigates housing discrimination complaints, has not issued any publications that indicate an intent to abandon disparate impact. However, Florida Administrative Code Chapter 60Y-6, which implements the Florida FHA, does not contain regulations comparable to HUD’s disparate impact framework under 24 CFR § 100.500. Thus, there is no corresponding state-level regulation for FCHR to remove or amend in response to federal policy changes.

Nevertheless, the absence of state-specific regulations does not necessarily mean disparate impact claims are unavailable under Florida law, which will remain an issue of considerable uncertainty that Haber Law will be monitoring closely.

Given this uncertainty, Florida condominium associations should continue exercising caution and pursuing FHA compliance under both federal and state law. Haber Law is available to review your association’s policies to achieve legitimate association goals while complying with the FHA.

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