HUD Issues Update Notice on COVID-19 Statutory and Regulatory Waivers

person A.J. Johnson today 07/08/2020

On July 2, 2020, the Department of Housing & Urban Development (HUD) issued Notice PIH 2020-05, Rev. 1 "COVID-19 Statutory and Regulatory Waivers and Alternative Requirements for the Public Housing, Housing Choice Voucher, Indian Housing Block Grant and Indian Community Development Block Grant programs, Suspension of Public Housing Assessment System and Section 8 Management Assessment Program."

These waivers provide alternative requirements for Housing Quality Standards (HQS) inspections of Section 8 Voucher units, resident income recertifications, and other requirements.

On April 10, 2020, HUD published Notice PIH 2020-05 using authority granted under the CARES Act to establish waivers and administrative flexibilities to provide relief to PHAs, Indian Tribes,  and Tribally Designated Housing Entities (TDHEs) in response to the COVID-19 pandemic. In this revised Notice, HUD reinstates the waivers and alternative requirements published in the initial notice, provides additional waivers and alternative requirements, extends the periods of availability for previously established waivers and alternative requirements, and issues technical  amendments to several of the previously established waivers and alternative requirements.

Affected entities may choose in implement any or all of these waivers, immediately or at any point during the applicability period. Most provisions of the Notice have been extended through December 31, 2020.

Provisions of the Notice follow:

HQS Waivers

  • PHAs can enter into a Housing Assistance Payment (HAP) contract for tenant-based or PBV units, turn over units to a new family, add new units to a PBV contract, or substitute units on a PBV contract without conducting a HQS inspection through December 31, 2020.
  • In lieu of the HQS inspection, the PHA may accept a certification from the project owner that the owner "has not reasonable basis to have knowledge that life threatening conditions exist" in the units. Units must be inspected within one year of the owner certification.
  • These same alternate requirements apply to PHAs choosing to utilize the alternative inspection flexibility that had previously been provided under the Housing Opportunity Through Modernization Act of 2016 (HOTMA), which allows the PHA to recognize alternative inspection regimes such as REAC. In lieu of a PHA inspection within 15 days, the PHA may accept an owner’s certification of no knowledge of life threatening conditions, and then the unit would have to be inspected within one year of the certification.
  • If an HQS inspection has been conducted but the PHA utilizes the Non-Life Threatening Deficiencies (NLT) flexibility that had previously been provided under HOTMA, project owners can have up to 60 days, instead of 30, to make NLT repairs; this authority runs through December 31, 2020.
  • For units already under a HAP contract, PHAs may delay the required biennial HQS inspections until no later than one year from the date the biennial inspection would have been required absent the waiver.
  • If a tenant notifies a PHA that their unit does not comply with HQS, through December 31, 2020, the PHA may notify the project owner in lieu of conducting an HQS inspection. For life threatening deficiencies, the owner must either correct the deficiency or provide evidence that the deficiency does not exist within 24 hours.  For non-life threatening deficiencies, the project owner must either correct the deficiency or provide evidence that the deficiency does not exist within 30 days of the PHA notification.
  • HUD is waiving the HQS requirement that a leased unit have at least one bedroom or sleeping room for every two people in order to accommodate residents who may need to add household members as a result of the pandemic.

Recertifications of Income and Family Composition for Public Housing & HCV/Section 8

  • PHAs can delay annual re-examinations of family income and composition until December 31, 2020.
  • If a PHA wishes to proceed with recertifications, through December 31, 2020, PHAs may rely on family self-certification and forego reliance on third-party income verification, such as the EIV. HUD is even allowing this self-certification to occur over the phone if the PHA staff creates a contemporary written record.
  • Interim certifications can be used to adjust a family’s tenant portion of rent if they have lost income. Again, PHAs may rely on family self-certifications and need not rely on EIV or other third-party verification through December 31, 2020. Further, PHAs may wish to review and adjust their interim re-examination policies, such as when increases in family income must be reported or how to determine the effective date of the interim recertification.
  • Mandatory EIV monitoring is waived through December 31, 2020. However, families will be responsible if significant discrepancies from their self-certification are later discovered.
  • Additionally, if a PHA’s payment standard increases, PHAs need not wait until the regular family re-examination for a unit to increase the HAP subsidy.

Additional Waivers Applicable to PIH and HCV/Section 8 Programs

  • Section 8 Administrative Plans and Public Housing Admissions and Continued Occupancy Policies (ACOPs) may be temporarily amended without board of director’s approval until September 30, 2020; the PHA must formally adopt any such changes by December 31, 2020.
  • PHA Annual Plan/5-Year Plan submission dates have been extended - PHAs with June 30 and September 30 fiscal year ends now have until October 18, 2020, to submit their annual or five-year plans. PHAs with December 31 fiscal year ends have until January 16, 2021. In addition, plan amendments, except for amendments required by RAD, Section 18, and Section 22 repositioning efforts, may be adopted without an open public meeting of the PHAs board of directors.
  • HUD is still requiring PHAs to notify tenants of policy changes, but 30-day advanced notice is no longer required.
  • PHAs have been given broad latitude to extend a family’s initial voucher, execute HAP contracts up to 120 days after the start of a family’s lease, allow vacancies for more than 180 days, and retain units on a HAP contract even if the unit does not generate subsidy for more than 180 days.
  • COVID-19 qualifies as "good cause" through December 31, 2020, to extend a family’s participation in the FSS program for up to two years.
  • Raises the age of eligibility from 24 to 25 in the Family Unification Program (FUP); extends the length of assistance for a year for youths who were approaching the 36 month cut-off for assistance under FUP; and extends the length of time that a youth has to find a unit under FUP from 90 to 120 days.
  • Extends the period of eligibility for Section 8 homeownership assistance by one year for families approaching their maximum term of assistance prior to December 31, 2020.
  • Public notice for PHAs opening or closing waiting lists can be provided by leaving an outgoing voice message on its answering system and website, if the messages are accessible for hearing, visual, and other communication-related disabilities.
  • Suspends the requirement, through December 31, 2020, the PHAs that own or operate public housing make an annual inspection of each public housing project to determine whether units in the project are maintained to applicable standards and remain safe for residents.
  • Capital Fund obligation end dates and expenditures end dates are extended by one year. PHAs may exceed Total Development Cost (TDC) and Housing Construction Cost (HCC) limits by 25% and may seek HUD approval to exceed these costs by up to 50%.
  • PHAs may use force account labor, rather than contracted labor, for modernization activities.
  • Energy audits are suspended and PHAs need not review utility allowances until December 31, 2020.
  • HUD is temporarily suspending the Public Housing Assessment System (PHAS) and the Section 8 Management Assessment Program (SEMAP) for PHAs with a fiscal year end on or before December 31, 2020; HUD will begin issuing new PHAS and SEMAP scores for PHAs with fiscal year end dates of March 31, 2021.
  • Financial statement submission deadlines have been extended by six months.
  • Through December 31, 2020, PHAs have 90 - rather than 60 - days to submit form HUD-50058 for transactions impacted by these waivers. HUD will provide future guidance regarding reporting work-arounds in the PIH Information Center (PIC) system.

The CARES Act also provides supplemental funding for the Public Housing and HCV programs and additional flexibility to move monies between Operating and Capital Funds. HUD published additional guidance regarding these aspects of the CARES Act on Notices PIH 2020-07 and 2020-08.

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Navigating Solicitation Bans in Apartment Communities: Religious and Political Canvassing Rights

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Village of Stratton (2002) case, highlighting how requirements to obtain permits before engaging in door-to-door advocacy fundamentally conflicts with our conception of a free society. This case built upon decades of precedent established in cases like Lovell v. City of Griffin (1938), Schneider v. State(1939), and Cantwell v. Connecticut (1940), where the Court consistently struck down ordinances requiring permits for door-to-door solicitations, particularly those involving religious expression. Private Property Considerations The application of these constitutional principles becomes more nuanced in the context of private property, such as apartment communities. While public spaces must generally respect constitutional freedoms of expression, private property owners maintain certain rights to control access and activities on their premises. Key factors affecting an apartment community s ability to restrict canvassing include: 1. Property Access Structure: Communities with truly private roads and gated access may have greater latitude in restricting entry than those with public access points. 2. Local and State Regulations: Regulations vary significantly by jurisdiction. Some municipalities specifically exempt religious and political canvassers from solicitation restrictions, while others include them in "no solicitation ordinances. 3. Reasonable Time, Place, and Manner Restrictions: Even when canvassing must be permitted, property owners may implement reasonable restrictions regarding when and how such activities occur, provided these restrictions don t effectively eliminate the ability to canvas. Best Practices for Property Managers Property managers seeking to balance resident privacy with legal compliance should consider these approaches: 1. Review Local Laws: Understand specific municipal and state regulations governing solicitation and canvassing in your jurisdiction, as these vary widely. 2. Differentiate Commercial and Noncommercial Activities: Policies should clearly distinguish between commercial solicitation (which can generally be prohibited) and protected noncommercial canvassing. 3. Implement Reasonable Restrictions: Rather than blanket bans, consider time limitations (e.g., no canvassing after 8 PM) and registration requirements that don t impose undue burdens. 4. Educate Residents: Inform residents about their individual rights to refuse engagement with canvassers while respecting the broader legal framework permitting such activities. 5. Consult Legal Counsel: Given the complex interplay between constitutional rights and property management, seek legal advice when developing solicitation policies. The Resident Perspective Individual residents maintain the right to refuse interaction with canvassers. While the constitutional framework may permit canvassing within the community, no resident is obligated to engage with canvassers who approach their door. Property managers should ensure residents understand they can: Post individual "No Soliciting signs on their specific units Verbally decline conversations with canvassers Report harassment or persistent unwanted contact to management Conclusion The tension between solicitation bans and constitutional protections for religious and political expression creates an ongoing challenge for apartment community management. While complete prohibition of noncommercial canvassing likely exceeds legal boundaries, thoughtful policies can balance resident privacy concerns with constitutional requirements. Property managers should approach this issue with careful consideration of local regulations, the physical structure of their communities, and the important distinction between commercial solicitation and constitutionally protected expression. By developing nuanced policies rather than blanket prohibitions, communities can navigate this complex legal terrain while maintaining a positive living environment for residents. Disclaimer: This article provides general information for educational purposes only and should not be construed as legal advice. Consult with a qualified attorney for guidance on specific situations.

Federal Budget Cuts Threaten Core Affordable Housing Programs Nationwide

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Multifamily Housing Projects Subject to Section 504 of the Rehabilitation Act of 1973

Introduction Section 504 of the Rehabilitation Act of 1973 is a foundational federal civil rights law that prohibits discrimination based on disability in programs and activities that receive federal financial assistance (FFA). In the context of multifamily housing, Section 504 imposes critical accessibility and nondiscrimination requirements on housing providers whose properties are developed, operated, or otherwise supported through federal funds. Understanding which multifamily housing projects are subject to Section 504 is essential for ensuring compliance and upholding the rights of individuals with disabilities. Owners and managers often are unsure whether their property falls under Section 504. This article offers a comprehensive list of properties that must comply with the requirements of the Section 504 statute. Applicability of Section 504 in Multifamily Housing Not all multifamily housing developments fall under the purview of Section 504. Only those properties that receive federal financial assistance whether directly from a federal agency or indirectly through a state or local government are subject to its requirements. The following types of multifamily housing projects are covered: 1. HUD-Assisted Multifamily Housing Multifamily projects that receive funding through programs administered by the U.S. Department of Housing and Urban Development (HUD) are unequivocally subject to Section 504. This includes: Project-Based Section 8 Housing Assistance Payments Section 202 Supportive Housing for the Elderly Section 811 Supportive Housing for Persons with Disabilities HOME Investment Partnerships Program (HOME) Community Development Block Grant Program (CDBG) Housing Opportunities for Persons With AIDS (HOPWA) Projects under these programs must comply with both physical accessibility standards and operational nondiscrimination requirements. 2. Mortgage Insurance Programs Section 504 applies to programs and activities that receive federal financial assistance, including housing programs administered by the Department of Housing and Urban Development (HUD). FHA-insured multifamily properties fall under this category because the Federal Housing Administration provides federal financial assistance through mortgage insurance. FHA insured programs subject to Section 504 include: Section 207 Rental Housing Insurance Section 213 Cooperative Housing Insurance Section 220 Rehabilitation and Neighborhood Conservation Housing Section 221(d)(3) and (d)(4) Mortgage Insurance for Rental and Cooperative Housing Section 231 Housing for Elderly Persons Section 232 Mortgage Insurance for Nursing Homes, Intermediate Care Facilities, and Board and Care Homes Section 234 Mortgage Insurance for Condominiums Section 236 Rental Housing 3. USDA Rural Development (RD) Properties Multifamily properties financed through the U.S. Department of Agriculture's Rural Development programs such as the Section 515 Rural Rental Housing Program also fall within the scope of Section 504. These properties must meet physical accessibility standards, ensure non-discriminatory policies and practices, and provide reasonable accommodations to applicants and residents with disabilities. 4. Low-Income Housing Tax Credit (LIHTC) Projects (Under Specific Conditions) The LIHTC program itself does not constitute federal financial assistance under Section 504. However, when LIHTC developments are combined with other sources of federal funding (such as HOME or CDBG), the portion of the property funded with such assistance or potentially the entire development becomes subject to Section 504 requirements. 5. Public Housing Agencies (PHAs) Section 504 covers public housing developments and programs administered by PHAs, including the Housing Choice Voucher (HCV) program. PHAs are responsible for ensuring that sufficient accessible units are available and that reasonable accommodations are provided to individuals with disabilities. Under the Housing Choice Voucher (HCV) program, when a tenant with a disability requires a modification to a unit to make it accessible, the responsibility for the cost depends on several factors: If the landlord is not receiving federal financial assistance directly (which is typical under the HCV program), they are not subject to Section 504 of the Rehabilitation Act. In this case: The landlord is not required to pay for modifications, but must allow reasonable modifications at the tenant s expense under the Fair Housing Act, unless doing so would pose an undue administrative or financial burden. The PHA may use funds (if available and if policy allows) to pay for modifications as a reasonable accommodation. Other sources, such as state or local programs, nonprofits, or disability advocacy organizations, may also assist with funding. So, unless the PHA steps in or there s an alternative funding source, the cost of a reasonable modification typically falls on the tenant but the landlord cannot legally prohibit the modification if it is reasonable and necessary for the tenant s disability. 6. State and Local Government-Funded Projects Using Federal Pass-Through Funds Any multifamily housing project funded through state or local entities utilizing federal grant programs must comply with Section 504. This includes housing initiatives financed through state housing finance agencies or municipal governments administering federal housing resources. Core Requirements of Section 504 Compliance Multifamily housing projects covered under Section 504 must adhere to various physical, operational, and programmatic accessibility requirements. These include: Accessible Units A minimum of 5% of total units must be fully accessible to individuals with mobility impairments. A minimum of 2% must be accessible to individuals with hearing or visual impairments. Design and Construction Standards New construction and substantial rehabilitation must comply with the Uniform Federal Accessibility Standards (UFAS) or other approved standards. Reasonable Accommodations Housing providers must make reasonable policy and procedural modifications to allow individuals with disabilities equal access to housing and services. Effective Communication Providers must take steps to ensure effective communication with applicants and residents with disabilities, including the provision of auxiliary aids and services when necessary. Conclusion Compliance with Section 504 of the Rehabilitation Act is not optional for multifamily housing providers receiving federal financial assistance. It is a legal obligation and a moral imperative that helps ensure equal access to housing opportunities for individuals with disabilities. Owners, developers, and managers of covered properties must proactively meet physical and programmatic requirements.

Understanding Tariffs and Their Impact on Construction Costs

What Are Tariffs? A tariff is simply a tax imposed on imported goods. When products like building materials enter U.S. ports, paying the applicable tariff is a standard part of the customs process. Historical Context Tariffs have deep roots in American history. From the colonial era through the early 1900s, they served as the federal government s primary revenue source. They were relatively straightforward to enforce even before modern technology, as customs officers could inspect incoming shipments at ports and collect the appropriate fees. The federal government s limited taxing authority under the Constitution meant that a modern income tax was not legally permissible until the 16th Amendment was enacted in 1913. The Decline of Tariffs Despite their historical importance, tariffs have several inherent problems that led to their declining use over the past century: They disadvantaged U.S. agricultural interests and exporters as other countries implemented retaliatory trade barriers. The tax burden fell disproportionately on lower-income individuals who spend more of their income on basic necessities. They couldn t generate sufficient revenue to fund modern government operations. When the global economy faltered in 1930, many nations, including the U.S., implemented protective tariffs with the Smoot-Hawley Act. Most economists view this wave of protectionism as a contributing factor to the severity of the Great Depression. Learning from this experience, the U.S. and other advanced economies gradually reduced trade barriers during the postwar period to foster economic cooperation and peace. Current Tariff Landscape Even during periods of free trade enthusiasm, tariffs never disappeared entirely. They remained relatively low in recent years, dropping to 1.5% in 2017 after decades of bipartisan efforts to establish global trade agreements. The Trump administration increased rates to approximately 3% during his previous term, which President Biden largely maintained. According to the Yale Budget Lab, the Trump administration s announced policies would raise the average tariff to 22.5% higher than during the Smoot-Hawley era and roughly equivalent to 1909 levels. Implementation Authority The scale of newly announced tariffs is significantly larger than previous ones. They affect nearly all goods from every country worldwide and invoke emergency authority not previously used for this purpose. Tariffs Impact on Construction Costs Tariffs increase construction costs through several key mechanisms: Direct price increases on imported construction materials like steel, aluminum, lumber, and other building products. These higher costs are typically passed along to developers and ultimately to end consumers. The specific impact depends on several factors: Which materials are targeted The tariff rate percentages Availability of domestic alternatives Proportion of imported versus domestic materials used The recent tariffs on imports from China (20%), Mexico, and Canada (25%) have significant implications for construction. According to the National Association of Home Builders, these tariffs could increase builder costs by approximately $7,500 to $10,000 per home for residential construction. This impact is substantial because approximately 7% of all goods used in new residential construction are imported. Critical materials like softwood lumber come predominantly from Canada (72% of imports), while gypsum for drywall is mainly sourced from Mexico (74% of imports). Multifamily Construction Impact For multifamily construction specifically, with 46% of materials sourced from these countries and 35-50% of project costs tied to finished materials, tariffs could increase material costs by 7.5%, potentially raising total construction budgets by 3-4%. Broader Effects Beyond core construction materials, reciprocal tariffs may also influence other building-related imports, such as carpeting, electrical outlets, security equipment, furniture, and tools. Projects that have already been awarded but are not yet started are likely to experience the most significant impact. Industry forecasts suggest the construction industry will feel the brunt of tariff policy changes in late 2025 and early 2026. Meanwhile, due to tariff-related inflation concerns, the Federal Reserve is expected to maintain stable interest rates through most of 2025. Recent Developments Homebuilders have been relieved, as Canada and Mexico were exempted from the latest round of tariffs, protecting key lumber and drywall component imports. Additionally, a carveout exists for lumber and copper imports. These tariff developments are challenging the U.S. housing market, which is already struggling with supply constraints and affordability issues. Developers with affordable multifamily housing projects in the pipeline or underway but for which materials have not yet been purchased should prepare for these possible increases. Developers facing this uncertainty should take a proactive, strategic approach. Here are some of the steps they should consider: 1. Lock in Pricing Where Possible Negotiate Early Procurement Contracts: Secure pricing and delivery timelines now for materials that may be subject to tariffs. Bulk Purchasing: If financially feasible and storage is available, purchase critical materials before the tariff is implemented. 2. Revisit and Update Budgets Include Contingency Allowances: Adjust budgets to account for a potential spike in material costs (e.g., steel, aluminum, electrical components). Run Revised Pro Formas: Model project feasibility under different tariff scenarios to understand the margin of financial risk. 3. Communicate with Key Stakeholders Inform Lenders and Syndicators: Ensure your financial partners know potential cost escalations and any resulting impact on project viability or timelines. Coordinate with HFAs and Local Agencies: If the deal includes LIHTCs or public funding, discuss possible adjustments or relief options (e.g., basis boosts, revised gap financing). 4. Evaluate Alternative Materials and Suppliers Source Domestic Alternatives: Tariffs often target imported materials. Switching to local or tariff-exempt sources could mitigate cost hikes. Value Engineering: Reassess design specs to identify non-critical elements where substitutions could reduce costs. 5. Monitor Policy and Industry Updates Stay Informed: Watch for updates on tariff decisions and industry responses through trade associations (e.g., NAHB, NMHC). Engage in Advocacy: Support efforts to exempt affordable housing materials from tariffs or seek policy carve-outs. 6. Build Schedule Flexibility Buffer Time for Delays: Tariffs often disrupt supply chains, so build in extra time for procurement and delivery to avoid construction slowdowns. 7. Document Impacts Track Cost Changes: Keep records showing cost increases due to tariffs this can be useful when requesting additional funding or extensions from oversight bodies. Being proactive can help developers manage risk rather than be blindsided by rising costs. In this environment, a smart developer remains nimble, communicates clearly, and plans for the worst while hoping for the best.

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