HOTMA Final Rule - Educational Assistance

A. J. Johnson Partners with Mid-Atlantic AHMA for Affordable Housing Training - May 2024

During May 2024, A. J. Johnson will partner with the Mid-Atlantic Affordable Housing Management Association for training sessions for real estate professionals, particularly those in the affordable multifamily housing field. The sessions will be presented via live webinars.  The following sessions will be presented: May 8: Intermediate LIHTC Compliance  - Designed for more experienced managers, supervisory personnel, investment asset managers, and compliance specialists, this practical program expands on the information covered in the Basics of Tax Credit Site Management. A more in-depth discussion of income verification issues is included, as well as a discussion of minimum set-aside issues (including the Average Income Minimum Set-Aside), optional fees, and use of common areas. The Available Unit Rule is covered in great detail, as are the requirements for units occupied by students. Attendees will also learn the requirements for setting rents at a tax-credit property. This course contains some practice problems but is more discussion-oriented than the Basic course. A calculator is required for this course. May 14: Basic LIHTC Compliance - This training is designed primarily for site managers and investment asset managers responsible for site-related asset management and is especially beneficial to those managers who are relatively inexperienced in the tax credit program. It covers all aspects of credit related to on-site management, including the applicant interview process, determining resident eligibility (income and student issues), handling recertification, setting rents - including a full review of utility allowance requirements - lease issues, and the importance of maintaining the property. The training includes problems and questions to ensure students fully comprehend the material. May 16: The Verification and Calculation of Income and Assets on Affordable Housing Properties - The live webinar provides concentrated instruction on the required methodology for calculating and verifying income and determining the value of assets and income generated by those assets. The first section of the course involves a comprehensive discussion of employment income, military pay, pensions/social security, self-employment income, and child support. It concludes with workshop problems designed to test what the student has learned during the discussion phase of the training and serve to reinforce HUD-required techniques for determining income. The second component of the training focuses on a detailed discussion of requirements related to determining asset value and income. It applies to all federal housing programs, including the low-income housing tax credit, tax-exempt bonds, Section 8, Section 515, and HOME. Multiple types of assets are covered, both in terms of what constitutes an asset and how they must be verified. This section also concludes with problems designed to test the student s understanding of the basic requirements relative to assets. These sessions are part of a year-long collaboration between A. J. Johnson and MidAtlantic AHMA designed to provide affordable housing professionals with the knowledge needed to effectively manage the complex requirements of the various agencies overseeing these programs, ensuring long-term success in the field. Persons interested in any (or all) training sessions may register by visiting either www.ajjcs.net or https://www.mid-atlanticahma.org.

HUD Publishes 2024 Income Limits

On April 1, 2024, HUD published the 2024 income limits for HUD programs as well as for the Low-Income Housing Tax Credit and Tax-Exempt Bond programs. The limits are effective on April 1, 2024.  The limits for the LIHTC and Bond projects are published separately from the limits for HUD programs. LIHTC and Bond properties use the Multifamily Tax Subsidy Project (MTSP) limits and are held harmless from income limit (and therefore rent) reductions. These properties may use the highest income limits used for resident qualification and rent calculation purposes since the project has been in service. HUD program income limits are not held harmless. HUD publishes the 50% and 60% MTSP limits in the same table with the Average Income (AI) limits. AI limits are set at 20%, 30%, 40%, 50%, 60%, 70%, and 80%. Projects in service prior to 2009 may use the HERA Special Income Limits in areas where HUD has published such limits. Projects placed in service after 2008 may not use the HERA Special Limits. Projects in rural areas that are not financed by tax-exempt bonds may use the higher of the MTSP limits or the National Non-Metropolitan Income Limits (NNMIL). According to HUD, the non-metropolitan median income has gone up approximately .78% from 2023 to 2024. Owners of LIHTC projects may rely on the 2023 income limits for all purposes for 45 days after the effective date of the newly issued limits. This 45-day period ends on May 16, 2024. The limits for HUD programs may be found at www.huduser.gov/portal/datasets/il.html. The limits for LIHTC and Bond programs may be found at www.huduser.gov/portal/datasets/mtsp.html.

HUD Expands List of Federally Mandated Income Exclusions

On January 31, 2024, the Department of Housing and Urban Development (HUD) published an updated list of income excluded for HUD-assisted housing programs. Since the Low-Income Housing Tax Credit Program (LIHTC) must follow HUD rules regarding income determination, these exclusions also apply to the LIHTC program. Four new income exclusions were added, and existing exclusions were modified to specifically identify which sources of income are excluded from income calculations and asset determinations. This is the first comprehensive update of income exclusions since May 2014, and it incorporates the Housing Opportunities Through Modernization Act (HOTMA) exclusions. New Income Exclusions HUD has added four types of income that will no longer be counted for affordable housing program purposes. These include specific tax refunds, allowances for children of some veterans, distributions from ABLE accounts, and emergency rental assistance payments. Tax Refunds: The amount of any refund (or advance payment for a refundable credit) issued under the Internal Revenue Code is excluded from income. Such refunds are also excluded from assets for 12 months after being received. Children of Certain Service Members: Allowances paid to children of certain Thailand service veterans born with spina bifida are excluded from income and assets. This is in addition to any allowances paid to children of Vietnam veterans born with spina bifida, children of women Vietnam veterans born with certain birth defects, and children of certain Korean service veterans born with spina bifida. ABLE Account Distributions: Any amount in an Achieving a Better Life Experience (ABLE) account is excluded from income and assets. This includes the value of distributions from and certain contributions to ABLE accounts. Emergency Rental Payments: Payments received by a household under the Emergency Rental Assistance Program, which was part of the Consolidated Appropriations Act of 2021 and the American Rescue Plan Act of 2021, are excluded from income and assets. Modifications to Existing Exclusions In addition to adding new income exclusions, HUD is modifying existing exclusions. AmericorpsVISTA payments: In the past, payments to volunteers under the Domestic Volunteer Service Act of 1973 were always excluded. Now, such payments are included in income if the CEO of the Corporation for National and Community Service determines that the value of the payments, adjusted to reflect the number of hours served by volunteers, is equal to or greater than the federal or state/local minimum wage, whichever is greater. Tribal Trust Settlements: The first $2,000 of per capita payments are excluded unless the per capita payments exceed the amount of the original Tribal Trust Settlement. NAHASDA Benefits: The change more accurately captures the language in the United States Code that describes the exclusion of programs under the Native American Housing Assistance & Self-Determination Act. Individual Development Accounts (IDA): Any amounts in an IDA are excluded from assets, and any assistance, benefit, or amounts earned by or provided to an individual development account are excluded from income. This exclusion was updated to clarify that an IDA is excluded from assets, and any IDA benefits are also excluded from income. This program was defunded in 2017, so the exclusion is moot. It is important to note that HUD s updated list of federally mandated income exclusions is not a comprehensive list of all exclusions from income. Following are the types of income that are expressly excluded by federal law. Other income exclusions, as listed in various HUD Handbooks and Notice H 2023-10/PIH 2023-27, remain applicable. Also note that the exclusions listed below apply to income only, except where noted concerning assets. The value of the allotment provided to an eligible household under the Food Stamp Act of 1977. This exclusion also applies to assets. Payments, including for supportive services and reimbursement of out-of-pocket expenses, for volunteers under the Domestic Volunteer Service Act of 1973 are excluded from income except that the exclusion shall not apply in the case of such payments when the Chief Executive Officer of the Corporation for National and Community Service appointed under 42 U.S.C. 12651c determines that the value of all such payments, adjusted to reflect the number of hours such volunteers are serving, is equivalent to or greater than the minimum wage then in effect under the Fair Labor Standards Act of 1938 or the minimum wage, under the laws of the State where such volunteers are serving, whichever is the greater. This exclusion also applies to assets. Certain payments received under the Alaska Native Claims Settlement Act. This exclusion also applies to assets. Income derived from certain submarginal land of the United States is held in trust for certain Indian tribes. This exclusion also applies to assets. Payments or allowances made under the Department of Health and Human Services Low-Income Home Energy Assistance Program. This exclusion also applies to assets. Income derived from the disposition of funds to the Grand River Band of Ottawa Indians. This exclusion also applies to assets. The first $2,000 of per capita shares received from judgment funds awarded by the National Indian Gaming Commission or the U.S. Claims Court, the interests of individual Indians in trust or restricted lands, and the first $2,000 per year of income received by individual Indians from funds derived in interests held in such trust or restricted lands. This exclusion does not include proceeds of gaming operations regulated by the Commission. This exclusion also applies to assets. Amounts of student financial assistance funded under Title IV of the Higher Education Act of 1965, including awards under Federal work-study programs or the Bureau of Indian Affairs student assistance programs. For Section 8 programs only, any financial assistance in excess of amounts received by an individual for tuition and any other required fees and charges under the Higher Education Act of 1965 from private sources or an institution of higher education (as defined under the Higher Education Act of 1965), shall not be considered income to that individual if the individual is over the age of 23 with dependent children. Payments received from programs funded under Title V of the Older Americans Act of 1965. Payments received on or after January 1, 1989, from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in Re Agent Orange Product Liability Litigation, M.D.L. No 381 (E.D.N.Y.). This exclusion also applies to assets. Payments received under the Maine Indian Claims Settlement Act of 1980. This exclusion also applies to assets. The value of any childcare provided or arranged (or any amount received as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act of 1990. Earned income tax credit (EITC) refund payments received on or after January 1, 1991, for programs administered under the United States Housing Act of 1937, title V of the Housing Act of 1949, Section 101 of the Housing & Urban Development Act of 1965, and Sections 221(d)(3), 235, and 236 of the National Housing Act. This exclusion also applies to assets. Note - while this income exclusion addresses EITC refund payments for certain HUD programs, the exclusion in 26 U.S.C. 6409 excludes Federal tax refunds more broadly for any Federal program or under any State or local program financed in whole or in part with Federal funds. The amount of any refund (or advance payment for a refundable credit) issued under the Internal Revenue Code is excluded from income and assets for 12 months after receipt. Payments by the Indian Claims Commission to the Confederated Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the Mescalero Reservation. This exclusion also applies to assets. Allowances, earnings, and payments to AmeriCorps participants under the National and Community Service Act of 1990. Any allowance paid to children of Vietnam veterans born with spina bifida, children of women Vietnam veterans born with certain birth defects, and children of certain Korean and Thailand service veterans born with spina bifida. This exclusion also applies to assets. Any amount of crime victim compensation that provides medical or other assistance (or payment or reimbursement of the cost of such assistance) under the Victims of Crime Act of 1984 received through a crime victim assistance program, unless the total amount of assistance that the applicant receives from all such programs is sufficient to fully compensate the applicant for losses suffered as a result of the crime. This exclusion also applies to assets. Allowances, earnings, and payments to individuals participating in programs under the Workforce Investment Act of 1988, reauthorized as the Workforce Innovation and Opportunity Act of 2014. Any amount received under the Richard B. Russell School Lunch Act and the Child Nutrition Act of 1966, including reduced-price lunches and food under the Special Supplemental Food Program for Women, Infants, and Children (WIC). This exclusion also applies to assets. Payments, funds, or distributions authorized, established, or directed by the Seneca Nation Settlement Act of 1990. This exclusion also applies to assets. Payments from any deferred U.S. Department of Veterans Affairs disability benefits that are received in a lump sum or in prospective monthly payments. Any amounts (i) not received by the family, (ii) that would be eligible for exclusion under 42 U.S.C. 1382b(a)(7), and (iii) received for service-connected disability under 38 U.S.C. chapter 11 or dependency and indemnity compensation under 38 U.S.C. chapter 13 as provided by an amendment by the Indian Veterans Housing Opportunity Act of 2010 to the definition of income applicable to programs under the Native American Housing Assistance and Self Determination Act (NAHASDA). A lump sum or a periodic payment received by an individual Indian under the class action settlement agreement in the case titled Elouise Cobell et al. v. Ken Salazar et al., 816 F. Supp.2d 10 (Oct 5, 2011, D.D.C), for one year from the time of receipt of that payment as provided in the Claims Resolution Act of 2010. This exclusion also applies to assets. As provided by the Assets for Independence Act, as amended, any amounts in an "individual development account are excluded from assets, and any assistance, benefit, or amounts earned by or provided to the individual development account are excluded from income. An Individual Development Account (IDA) is a special bank account that assists a family in saving for education, purchasing a first home, or starting a business. To enroll in the program, participants must (1) Have a paying job, (2) earn less than 200% of the federal poverty level, and (3) not have more than $10,000 in assets, excluding one car and one home. The owner of the account contributes money from their job to the account. The contributions are matched from the State TANF program or a special state fund. These additional funds are excluded from income or assets. Per capita payments made from the proceeds of Indian Tribal Trust Settlements listed in IRS Notice 2013-1 and 2013-55 must be excluded from annual income unless the per capita payments exceed the amount of the original Tribal Trust Settlement proceeds and are made from a Tribe s private bank account in which the Tribe has deposited the settlement proceeds. Such amounts received in excess of the Tribal Trust Settlement are included in the gross income of the members of the Tribe receiving the per capita payments as described in IRS Notice 2013-1. The first $2,000 of per capita payments are also excluded from assets unless the per capita payments exceed the amount of the original Tribal Trust Settlement proceeds and are made from a Tribe s private bank account in which the Tribe has deposited the settlement proceeds. Individuals and families receiving federal assistance for a major disaster or emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act and comparable disaster assistance that is provided by States, local governments, and disaster assistance organizations. This exclusion also applies to assets. Any amount in an Achieving Better Life Experience (ABLE) account, distributions from, and certain contributions to an ABLE account established under the ABLE Act of 2014, as described in Notice PIH 2019-09/H 2019-06 or a subsequent or superseding notice. This exclusion also applies to assets. Assistance received by a household under the Emergency Rental Assistance Program under the Consolidated Appropriates Act of 2021 and the American Rescue Plan Act of 2021. While all these exclusions will be reflected in a future update of HUD Handbook 4350.3, that update is not yet available. Therefore, owners and managers of properties subject to HUD income and asset exclusions should keep this list handy.

HUD Provides Guidance on Non-Rent Fees for Subsidized Multifamily Housing Programs

In February 2024, the Department of Housing and Urban Development (HUD) provided guidance on existing policies regarding the fees that owners may and may not charge tenants. None of the guidance is new or reflects any change in HUD regulations. The purpose of the guidance is twofold: (1) to remind owners of the current requirements relative to fees and (2) to seek input from stakeholders on any possible changes to the requirements. Following is an overview of existing HUD policy regarding fees in addition to rent. Application Fees: Owners may not require fees or other costs to accept and process applications. These costs are considered project expenses. Charges at Initial Occupancy: Owners may not collect any money from tenants at initial occupancy other than rent and the maximum HUD-allowed security deposit unless they receive HUD approval to do otherwise. Pet Deposit: An owner of housing specifically designed for occupancy by the elderly and persons with disabilities may require tenants to pay a refundable pet deposit. The pet deposit applies only to tenants who own or keep cats or dogs in their units. HUD Handbook 4350.3 outlines the maximum amount of the pet deposit that may be charged by an owner on a per-unit basis. An owner may use the pet deposit only to pay reasonable expenses directly attributable to the pet's presence on the property, including (but not limited to) the cost of repairs and replacements to, and fumigation of, the unit and the cost of animal care facilities. Owners must return the unused portion of a pet deposit to the tenant within a reasonable time after the tenant moves from the property or no longer owns or keeps a pet in the unit. Screening Fees: Owners may not charge applicants for costs associated with screening applicants, including screening for criminal history or verifying income and eligibility. Hence, owners must not require applicants to pay credit report charges, charges for home visits, charges to obtain police reports or other costs associated with the above functions. These costs are considered project expenses. Security Deposit: Owners may collect a security deposit during the initial lease execution. However, the owner must collect a refundable security deposit at the time of the initial lease execution for the following programs:Section 8 New Construction with an AHAP executed on or after November 5, 1979;Section 8 Substantial Rehabilitation with an AHAP executed on or after February 20, 1980;Section 8 State Agency with an AHAP executed on or after February 29, 1980;Section 202/8;Section 202 PAC;Section 202 PRAC; and Section 811 PRAC. Owners may collect the security deposit on an installment basis. The security deposit amount established at move-in does not change when a tenant s rent changes. The amount of the security deposit to be collected is dependent upon: The type of housing program; The date the AHAP or HAP contract for the unit was signed and The amount of the total tenant payment or tenant rent. The HUD Handbook 4350.3, Figure 6-7, outlines the security deposit amount that may be collected for each program. When a tenant transfers to a new unit, an owner may: Transfer the security deposit, or Charge a new deposit and refund the deposit for the old unit. Assistance Animals: Owners may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant or tenant to keep an assistance animal. However, if an assistance animal causes damage to the unit or common areas of the dwelling, the owner may charge the individual for the cost of repairing the damage if the owner regularly charges tenants for any damage they cause to the premises. Attorney/Legal Costs: There may be no lease provision that the tenant agrees to pay all attorney and other legal costs if the owner brings legal action against the tenant, even if the tenant prevails. However, as a party to a lawsuit, a tenant may be obligated to pay attorney s fees or other costs if the tenant loses the suit. Owners may accept payment of court filing, attorney, and sheriff fees from tenants who wish to avoid or settle an eviction suit provided it is permitted under state and local laws, and the fees appear reasonable and do not exceed the actual costs incurred. Bad Behavior: Owners may not charge tenants for bad behavior, such as foul language, noise, or failure to supervise children. Checks Returned for Insufficient Funds: Owners may impose a fee on the second time, and each additional time thereafter, a check is not honored for payment. The owner may bill a tenant only for the amount the bank charges for processing the returned check.HUD or a Contract Administrator (CA) may authorize additional charges if such charges are consistent with local management practices and are permitted under state and local law. Owners of Section 202/8, Section 202 PAC, Section 202 PRAC, and Section 811 PRAC projects may never charge fees for checks returns for insufficient funds. Damages: Whenever damage is caused by carelessness, misuse, or neglect by the tenant, household member, or visitor, the tenant is obligated to reimburse the owner within 30 days of receiving a bill from the owner. The owner s bill is limited to actual and reasonable costs incurred by the owner for repairing the damages. Facilities & Services: Owners may not charge tenants separately for equipment and services included in the rent. Owners may charge tenants for other services or facilities (e.g., cable TV or use of community space in the project) only if all of the following conditions are met:Part C of the most recently approved rent schedule includes the services, facilities, and charges.A schedule of those charges has been posted or distributed to the tenants.The tenant can use those facilities or services if they are optional. If not previously authorized, the charges must be approved by HUD before implementation. Owners may charge for parking only in unsubsidized projects where HUD previously approved it. They may also charge for car heaters in cold climates where parking spaces are equipped with them. Infestation Treatment: Owners may not charge a tenant for the extermination cost unless the owner can demonstrate that the tenant's carelessness or neglect caused the infestation. Keys & Lockouts: Owners may charge tenants for answering lock-out calls and providing extra keys. At the time of move-out, the owner may charge the tenant for unreturned keys. Late Payment of Rent: Owners may charge a late fee if the tenant has been given at least five calendar days as a grace period to pay the rent. The rent must be received by the fifth day, not postmarked on that day. On the sixth day, the owner may charge a fee not to exceed $5.00 for the period of the first through fifth day that the rent is not paid. After that, the owner may charge a fee of $1.00 per day for each additional day the rent remains unpaid for the month. HUD or CAs may approve a higher initial late fee if (1) it is permitted under state and local laws, (2) it is consistent with local management practices, and (3) the total late charge assessed for the month does not exceed $30.00. An owner may deduct accrued, unpaid late charges from the security deposit at the time of move-out if such a deduction is permitted under state and local laws. An owner may not evict a tenant for failure to pay late charges. Owners of Section 202/8, Section 202 PAC, Section 202 PRAC, and Section 811 PRAC projects may never charge late rent payment fees. Meals Fee: Owners of properties for the elderly or persons with disabilities for which HUD approved a mandatory meals program before April 1, 1987, may charge a HUD-approved meals fee. The tenants pay such costs, and the fees are not rent. Meeting Space for Tenant Organizations: An owner may charge a reasonable fee, approved by HUD, as may normally be imposed for using such facilities in accordance with procedures prescribed by HUD for the use of meeting space. Other Charges: Owners may require tenants to pay other charges if:HUD or CA has approved the charges, and The schedule of charges is either:Listed in the lease agreement or Has been distributed to all tenants in accordance with the modification of the lease requirements and procedures listed in paragraph 6-12D of Handbook 4350.3. HUD s Office of Multifamily Housing Programs is seeking feedback from stakeholders regarding these policies. Owners and Agents of affected programs may provide comments and feedback to HUD at AssetManagementPolicy@HUD.gov. Responses are due by March 29, 2024.