HUD Issues New HOTMA Implementation Guidance
On September 29, 2023, HUD published Housing Notice 2023-10, Implementation Guidance: Sections 102 and 104 of the Housing Opportunity Through Modernization Act of 2016. The Notice contains implementation guidance for everything but the Section 104 asset limitation. HUD will provide additional guidance on the asset limitations at a later date. HUD does affirm that the asset limitations will apply to the Section 202/8 program. While HOTMA does go into effect on January 1, 2024, HUD recognizes that PHAs and owners will need time to put all the new policies into place. The Notice provides guidance on these delayed timeframes, including the requirement that MFH owners (owners of Project-Based Section 8 properties and other properties governed by the HUD Office of Multifamily Housing) update Tenant Selection Plans and EIV Policies & Procedures by March 31, 2024. HUD also published a List of Discretionary Policies to Implement HOTMA. This identifies areas in which owners have policy discretion; owners must state in the Tenant Selection Plan how they will exercise such discretion. Owners and managers of impacted properties should obtain a copy of the Notice and the list of discretionary policies. We will be updating the HOTMA training provided by A. J. Johnson Consulting Services to include this new guidance and will publish updates of the changes on our website.
HUD Delays NSPIRE Implementation for Certain Programs
The U.S. Department of Housing and Urban Development (HUD) has announced an extension of the compliance date for the National Standards for the Physical Inspection of Real Estate (NSPIRE) for select programs to October 1, 2024. This extension is applicable to the HOME Investment Partnerships Program (HOME), Housing Trust Fund (HTF), Housing Opportunities for Persons with AIDS (HOPWA), Emergency Solution Grants (ESG), and Continuum of Care (COC) programs. The purpose of this extension is to provide jurisdictions with additional time to implement these standards, which will govern inspections and evaluations of HUD-assisted housing. NSPIRE plays a crucial role in helping HUD streamline and consolidate its inspection standards and procedures. Additionally, it incorporates provisions of the Economic Growth and Recovery, Regulatory Relief, and Consumer Protection Act into all of HUD's programs. Programs other than those noted above that are subject to NSPIRE must still adopt the new standard by October 1, 2023.
A. J. Johnson Partners with Mid-Atlantic AHMA for October Affordable Housing Training
During the month of October 2023, A. J. Johnson will be partnering with the Mid-Atlantic Affordable Housing Management Association for a Low-Income Housing Tax Credit (LIHTC) training intended for real estate professionals, particularly those in the affordable multifamily housing field. The session will be presented via live webinar. The following session will be presented: October 18: Intermediate LIHTC Compliance - Designed for more experienced managers, supervisory personnel, investment asset managers, and compliance specialists, this 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 relating to 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. This session is part of the year-long collaboration between A. J. Johnson and MidAtlantic AHMA that is designed to provide affordable housing professionals with the knowledge needed to effectively manage the complex requirements of the various agencies overseeing these programs. Persons interested in this training session may register by visiting either www.ajjcs.net or https://www.mid-atlanticahma.org.
Medical Marijuana - Is It a Fair Housing Issue?
Medically prescribed marijuana use is permitted in 37 states and the District of Columbia, specifically for medical purposes. In addition, 18 states (Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Vermont, Virginia, and Washington) have also legalized recreational marijuana. Property managers often inquire about whether individuals can be denied housing based on their marijuana use, considering the drug s legal status in the state where the property is located. The answer is both "yes" and "no." Recreational marijuana users may be denied occupancy, but individuals with a physician s prescription for medical marijuana should not automatically face denial. While the Fair Housing Act (FHA) does not explicitly address drug use in housing, the legislative history used by HU, courts, and tribunals to interpret the law clearly indicates that the exclusion of current illegal drug users does not apply to individuals using controlled substances that are legally prescribed by a physician. According to an office House of Representatives report, "the exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act for a medical condition under the care of or by prescription from, a physician." The report also asserts that "the use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance." However, there are limitations to this protection for medical marijuana use: The marijuana must be legally prescribed by a physician for a specific medical condition authorized by state law. The person must use the marijuana solely for the prescribed condition. Usage should be confined to the person s own apartment and not common areas. The individual must not possess or cultivate more than the maximum amount permitted by law. Selling or distributing marijuana to others is not allowed. In contrast, recreational marijuana users do not enjoy the same legal protections as medical marijuana users, and they may face housing denial. However, this legal landscape can be complex. For this reason, managers should thoroughly explore state and local laws in places where recreational marijuana is legal. Property managers also need to consider one important factor when renting to individuals using medical marijuana. If the property is designated as non-smoking, permitting the smoking of medically prescribed marijuana on the premises would not constitute a "reasonable accommodation" as it fundamentally alters the property s operations. Medically prescribed marijuana can be consumed in various forms, including food, pills, powder, topicals, and tinctures. Bottom Line: While medical (and even recreational) marijuana is permitted in many states, only users of medical marijuana are protected by the Fair Housing Act. And even users of medical marijuana must follow specific rules when using the marijuana at properties. Owners and managers of multifamily properties should develop written policies governing the use of medical marijuana at their properties, and those policies should be carefully reviewed by attorneys familiar with state and local laws relating to the issue of medical marijuana.
GAO Study is Critical of HUD Oversight of the Housing Trust Fund Program
The U.S. Government Accountability Office (GAO) was asked by members of Congress to examine the use and oversight of funds from the Housing Trust Fund (HTF) Program. In August 2023, the GAO published its findings in a report titled, "Affordable Housing - Improvements Needed in HUD s Oversight of the Housing Trust Fund Program." The report examines (1) the number and production rate of HTF units; (2) how selected grantees have used HTF and other funding sources; and (3) HUD s HTF oversight and reporting. What GAO Found As of March 1, 2022, HTF grantees had developed 2,186 rental units (in 263 projects) for households with extremely low incomes (not exceeding 30% of the area median). For the 12 selected grantees GAO reviewed, HTF accounted for about 10 percent of the total funds for 70 completed projects. Equity from investors in Low-Income Housing Tax Credits (LIHTC) was the largest funding source. 43 of the projects were new construction (with an average per unit development cost of $262,732), 26 of the projects were rehabilitation (with an average per unit development cost of $188,758), and one project was acquisition only ($34,590 per unit). Average costs vary widely from state to state, with California being the highest ($359,593 per unit) to Mississippi being the lowest ($144,614 per unit). Interestingly, the average per-unit development cost for projects with nonprofit developers was about $40,000 higher than costs for projects with for-profit developers. The reason for this appears to be that nonprofit organizations focus more on populations that are more costly to serve, such as special needs tenants who may require additional or enhanced facilities. The selected grantees were the state agencies responsible for administering the HTF program in Arizona, California, Georgia, Maine, Massachusetts, Minnesota, Mississippi, New York, North Dakota, Tennessee, and Utah. HUD monitors compliance with HTF funding commitment and expenditure deadlines, but weaknesses exist in its oversight and reporting. Specifically, HUD has not - Monitored grantee compliance with requirements for reporting project completion dates or data on total project units in HUD s information system; Effectively communicated requirements for grantees to obtain cost certifications for completed HTF projects; Conducted or scheduled a comprehensive assessment of fraud risks; and Disclosed limitations in its external HTF reports that could lead to misinterpretation of project cost and funding data. HUD officials are drafting procedures for better monitoring of HTF grantees. Implementation of these procedures will begin in 2024. HUD annually allocates HTF grant funds to states using a formula to determine grant amounts. The formula considers the shortage of rental homes affordable and available to very low-income and extremely low-income (ELI) renter households and the extent to which such households are living in substandard housing or spending more than 50% of their income on rent. The program has a minimum annual grant of $3 million for each of the 50 states and the District of Columbia. In 2022, 21 states and DC received less than $5 million and 23 states received between $5 million and $25 million. Allocations for the remaining seven states ranged from $26 million (Pennsylvania) to $132 million (California). By statute, all HTF funds must benefit very low- or extremely low-income households. HUD has indicated that at least 80% of the funds must be used for the production, rehabilitation, preservation, or operation of rental housing. 75% of the funds for rental housing must benefit ELI families or families with incomes at or below the poverty line. HTF rental units must adhere to income and rent restrictions for an affordability period of 30 years. The largest source of federal assistance for developing affordable rental housing is the LIHTC program, which provides federal income tax credits to encourage private equity investments in the construction or rehabilitation of affordable rental housing. LIHTC equity represents about 40% of total funding. A high percentage of HTF projects also utilize HOME funds, which is the largest HUD-administered program that funds housing development. About 57% of HTF units completed have been efficiency or one-bedroom units, about 26% are two-bedroom units, and about 17% have three or more bedrooms. Almost all HTF activity has been rental since low-income and ELI households may have difficulty obtaining mortgages for homeownership. Most completed HTF units (about 80%) are in projects located in metropolitan areas. Grantees generally use HTF funds to target special populations and build permanent supportive housing. Nine of the 12 selected grantees awarded HTF funds to projects that targeted special populations. Special populations include individuals experiencing homelessness, formerly incarcerated individuals, older adults, and veterans. Weaknesses Identified in the Study HUD identified two weaknesses in HUD s oversight of project completion requirements: Project Completion Deadline: HUD does not have procedures for reviewing whether HTF grantees are entering completion information into the HUD database within the 120-day regulatory deadline and has not conducted reviews. It does appear that grantee confusion regarding completion requirements may be contributing to noncompliance in this area. One specific area of confusion is the difference between HTF and LIHTC definitions of project completion. Since HUD is not reviewing project completion times, it is unaware of grantee noncompliance in this area. Data on total units in completed projects: HUD s data on the total number of units (HTF plus non- HTF units) in completed projects is inaccurate, and HUD does not have a centralized process for identifying likely errors. Other program weaknesses include - Failure of the grantees to comply with cost certification requirements; HUD has not comprehensively assessed HTF fraud risks; and HUD s reporting on HTF costs and funding could be misinterpreted. Conclusions Because HUD does not review grantees final drawdown and completion dates, it has been unaware of grantee noncompliance with and confusion about the requirement to enter project completion information within 120 days of the final drawdown of funds. Conducting such reviews and providing grantees additional instruction on the requirement could help ensure the timely completion of HTF-assisted projects and enhance the accuracy of HUD s data on HTF unit production. HUD has not effectively communicated requirements for grantees to obtain cost certifications for completed HTF projects, as evidenced by the absence of cost certifications for many projects. Because HUD has not scheduled or conducted a comprehensive assessment of fraud risks in the HTF program, it is not well-positioned to identify and mitigate risks that could reduce the program s efficiency and effectiveness. Recommendations of the GAO HUD should develop and implement a centralized process to monitor HTF grantee compliance with data entry requirements; HUD should develop and implement a system to monitor the total number of units in completed projects; HUD should use formal notices and training to enhance communication of the cost certification requirements; HUD should schedule and conduct a comprehensive assessment of HTF fraud risks; and HUD should revise its public reports on the HTF program to disclose that the amount of non-HTF funds may be underreported and that HTF units are only a portion of the total units in HTF-assisted projects. HUD has agreed to all five recommendations and will implement policies to adopt these recommendations in 2024. BOTTOM LINE This report responds to a Congressional request to assess the utilization and supervision of funds from the Housing Trust Fund (HTF) program. The report covered the number of HTF units developed, funding sources, and oversight by the Department of Housing & Urban Development (HUD). By March 2022, 2,186 rental units for ELI households were developed via the HTF. In a study of 12 grantees, HTF contributed around 10% of total funds for 70 completed projects, with LIHTC being a major source. Costs varied across states, with nonprofits incurring higher costs due to serving more costly populations. HUD s oversight was found to have weaknesses, including noncompliance with project completion reporting, lack of cost certifications, incomplete assessment of fraud risks, and misleading external reporting. The GAO recommends improving monitoring, communication, risk assessment, and public reporting. HUD agreed to implement these recommendations in 2024. All HTF grantees are encouraged to review the GAO report and be proactive in implementing changes that are likely to occur in 2024.
HUD Releases Study on Worst Case Housing Needs
The Department of Housing & Urban Development (HUD) has presented a report to Congress titled "Worst Case Housing Needs." The report provides national data and analyzes the critical problems of low-income renting families. The report primarily draws on data from the 2021 American Housing Survey (AHS), which is a comprehensive housing survey conducted by the U.S. Census Bureau since 1973. Households with worst-case housing needs are very low-income renters households with incomes at or below 50 percent of area median income who do not receive government housing assistance and who pay more than one-half of their income toward rent, live in severely inadequate conditions, or both. The 2023 report finds that in 2021, during the COVID-19 pandemic, 8.53 million households had worst-case housing needs. This is an increase in worst-case needs from the record high of 8.48 million in 2011 and 70 percent greater than the 5.01 million households with worst-case housing needs in 2001. These figures reflect the declining supply of units that are both affordable and available to very low-income renters at a time when demand is rising. Although the AHS data collection does not capture the effect of the one-time COVID-19 stimulus payments or the Emergency Rental Assistance program, government relief measures provided over the pandemic have helped to offset the dire needs of many families with worst-case needs. This very low-income renter population accounts for about 15 percent of U.S. households. The study makes it clear that increasing affordable housing through both more supply and more rental assistance is the key to decreasing these numbers. This report finds that in 2021, only 57 affordable units (including those with rental assistance) were available for every 100 very low-income renter households. Only 36 affordable units were available for every 100 extremely low-income renter households. According to the study s authors, the serious scarcity of housing units affordable to the most vulnerable households and hard-working families makes it essential to prioritize the production of affordable units, reducing regulatory barriers to affordable housing production and providing technical assistance to local governments to assist in removing barriers that drive up housing costs. Providing income support to very low-income renters can also help address worst-case needs. As these longer-term strategies take effect and as the nation emerges from the pandemic, increasing access to rental assistance may be essential to sustain affordable housing and prevent homelessness. Details of the Study The prevalence of worst-case needs was 52.6 percent among Asian households, 47.4 percent among Hispanic households, 44.1 percent among non-Hispanic White households, 41.6 percent among Native Hawaiian or Other Pacific Islander households, 39.3 percent among non-Hispanic Black households, and 36.4 percent among American Indian or Alaska Native households. Between 2019 and 2021, the prevalence of VLI renters with severe problems increased by 3.2 percentage points for non-Hispanic Blacks, by 2.3 points for Hispanics, by 0.4 points for non-Hispanic Whites, and by 12.2 points for other races or other ethnicities. More than 8.5 million renter households had worst-case needs in 2021, of whom 3.17 million lived in the South, 2.25 million lived in the West, 1.62 million lived in the Northeast, and 1.48 million lived in the Midwest. This report includes a new analysis of the intersection between worst-case needs and the related but less prevalent problem of housing overcrowding. Overcrowding is defined as having more than one person per room, counting only rooms that are finished and used on a regular basis.In 2021, about 948,000 very low-income renter households, or 4.9 percent, were overcrowded. Of these, 390,000 households also experienced worst-case needs. The study concludes by pointing out that reductions in worst-case needs generally result when economic growth improves household incomes, when the production of affordable housing is sufficient to reduce market rents, or, alternatively, when the availability of rental assistance increases. Rental housing assistance such as that offered by HUD programs, other federal programs, states, or localities helps many vulnerable renter households who have such limited incomes. A broad strategy at the federal, state, and local levels has long been needed to continue to grow the economy, support market production and access to affordable homes, and provide rental assistance to the most vulnerable households. With the impact of the COVID-19 pandemic and associated economic difficulties in 2020 and 2021, worst-case housing needs have increased substantially, reaching a new record high and highlighting more than ever the need for a comprehensive approach to addressing the affordable housing crisis. However, based on current Congressional priorities, it is unlikely that any meaningful steps to address this affordability crisis will be taken anytime soon. Congress will almost certainly - as it always does - take a band-aid approach to the crisis.
Applicant and Resident Rights Under the Fair Credit Reporting Act
Screening for credit and rental history are common in multifamily rental housing - including affordable housing. The Fair Trade Commission recently issued new guidance for owners who use background checks to screen prospective residents. This guidance is intended to assist owners in complying with the requirements of the Fair Credit Reporting Act (FCRA). Many apartment communities run screening checks through third-party companies that compile background information. If adverse action is taken against an applicant due to a background check - also known as a consumer report - there are specific steps required of management. Consumer reports contain a variety of information about people. This may include rental history, credit history, and criminal history. Examples of such reports include - A credit report from a credit bureau such as Trans Union, Experian, and Equifax; A report from a tenant screening service that describes an applicant s rental history based on reports from prior landlords or court records; A report from a reference checking service that describes an applicant s rental history; and A report from a background check company about an applicant or resident s criminal history. There are some companies that provide all these services under one umbrella request. In order to obtain a consumer report, the permission of the person being investigated is required, and the report may be used for housing purposes only. Under the FCRA, there are certain requirements that must be followed when using credit reports or other consumer reports to make decisions about housing applications. Here are some key points to consider: Adverse Action Notice: If you decide to reject an applicant s housing application based on information from a consumer report, you are required to provide them with an "adverse action notice." This notice informs the applicant that their application was denied or negatively affected due to information in their consumer report. Contents of Adverse Action Notice: The adverse action notice must include specific information, including (i) the name, address, and phone number of the consumer reporting agency that provided the report; (ii) a statement that the agency did not make the decision and cannot explain why the decision was made; (iii) the applicant s right to obtain a free copy of the report from the reporting agency within 60 days; and (iv) the applicant s right to dispute the accuracy or completeness of information in the report. The adverse action notice is required even if information in the report is not the primary reason for the decision. The FTC provided examples of when adverse action notices are required: An owner orders a consumer report from a Credit Reporting Agency (CRA). Information contained in the report leads to further investigation of the applicant. The subsequent investigation led to a denial of the applicant. Since the information in the report led to the investigation, an adverse action notice must be sent to the applicant. An owner hires a reference checking service to verify information included on a rental application. The service reports that the applicant does not work for the employer listed on the application and the rental application is denied. An adverse action notice is required. An owner orders a criminal history report on a prospective tenant, and the report shows a felony conviction. If the landlord denies the applicant due to the felony conviction, an adverse action notice is required. Don t forget that in the case of applicant rejection due to a criminal record, applicants must also be informed of their right to an individual assessment. After using a consumer report for its intended purpose, it must be securely disposed of. Options for disposal include: Burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed. Destroy or erase electronic files or media containing consumer information. We still see credit and other consumer reports in tenant files that we review. Landlords should be aware of the fact that maintaining such reports in tenant files is a violation of the law. DO NOT KEEP THESE REPORTS IN TENANT FILES! Bottom Line: The Fair Trade Commission has issued new guidance for owners of multifamily rental housing, including affordable housing, regarding background checks on potential residents. These checks, often conducted by third-party companies, involve credit, rental, and criminal history. If adverse action is taken based on these checks, specific steps must be followed, including the provision of an adverse action notice with details about the reporting agency and the applicant s rights. Such notices are required even if the report is not the primary reason for rejection. After use, consumer reports must be securely disposed of, and landlords must not keep them in tenant files to comply with the law.
Take Care When Using Artificial Intelligence (AI) for Marketing Purposes
There is an emerging trend within the real estate sector involving the utilization of Artificial Intelligence, exemplified by tools like ChatGPT, Bard, Bing, and other similar products commonly referred to as chatbots, all for the purpose of enhancing marketing strategies. Numerous companies are harnessing the potential of AI to formulate advertising approaches, conduct market analysis, shape advertising content, and create social media posts. While AI does have certain benefits, it also brings forth certain drawbacks. These chatbots, in particular, exhibit vulnerabilities that introduce a level of risk when employed in marketing and advertising endeavors. One significant concern pertains to the concept of "hidden bias." In certain instances, the algorithms integrated into chatbots incorporate the subtle prejudices of their creators. Moreover, these bots can internalize biases from their interactions. A notable case in 2018 involved Amazon discontinuing the use of an AI-driven recruitment system due to its demonstrated preference for male candidates over female candidates. This bias stemmed from the system s analysis of historical resumes submitted to Amazon over a decade, which were disproportionately skewed toward male applicants. Consequently, AI developed a preference for male candidates. Though AI has the potential to stimulate creative thinking, exercising caution is paramount before deploying it for advertising and marketing purposes. It is advisable that individuals well-versed in fair housing regulations and possessing relevant experience assess the AI-generated content to ascertain its lack of inadvertent bias. Furthermore, it is unwise to solely rely on AI for determining advertising avenues. Throughout history, instances abound of landlords intentionally advertising solely on platforms that were unlikely to be accessed by minority groups. Both the Department of Housing & Urban Development (HUD) and the legal system construe discriminatory advertising to encompass media or locations chosen for advertising that effectively withholds housing information from specific segments of the market. Illustrative instances include scenarios such as exclusively displaying billboards in predominately white neighborhoods or featuring ads in publications predominately consumed by a white audience. As a prudent approach, it is advisable to implement a policy wherein the use of AI for marketing and advertising is contingent upon adherence to a set of guidelines. If such a policy is not already in place, considering the prohibition of AI use for these purposes might be wise. In any case, an explicit and comprehensive written policy should be established, clearly outlining acceptable and prohibited applications of AI in marketing and advertising efforts.