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Avoiding Discrimination Based on Sex in Housing

Avoiding Discrimination Based on Sex in the Provision of Housing     Federal law did not prohibit sex discrimination in housing until 1974, when a non-controversial provision of the Housing and Community Development Act of 1974 added "sex" as a prohibited basis of discrimination to the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).   The protection was initially intended to prevent housing operators, developers, property managers, etc., from leasing, selling or negotiating with men and women on an unequal basis. For example, discounting a woman s income when evaluating the ability to pay for housing is prohibited. In HUD v. Baumgardner (1990), the court stated that Congress intended the Fair Housing Act (FHA) ban on sex discrimination "to end housing practices based on sexual stereotypes."   It should be noted that while fair housing law generally prohibits expressing a preference for or against a protected characteristic when advertising, the Federal Register, 3309, January 23, 1989, provided an exception for sex "where the sharing of living areas is involved." An exception also exists for dorms at educational institutions.   Congress has provided limited exemptions from the FHA for single family home owners and owners who live in small apartment buildings (four or fewer units). Persons who meet an exception may discriminate on the basis of sex (the Civil Rights Act of 1866 only prohibits discrimination on the basis of race). However, state or local law may not provide for an exception and the Equal Credit Opportunity Act prohibits sex discrimination in the provision of mortgages and other forms of credit in housing.   While the protections against sex discrimination have been used to prevent sexual stereotyping in the provision of mortgages, housing sex harassment cases are becoming more common.   Most of the legal principles used in housing harassment cases derive from employment law. Title VII of the Civil Rights Act of 1964 covers sexual harassment in the workplace. While Title VIII of the Civil Rights Act of 1968 includes "sex" as a characteristic protected from discrimination in the provision of housing, there is no specific mention of "sexual harassment." However, sexual harassment in the context of housing may be even more devastating than workplace harassment, since home is more central to lives than is the workplace. The first major study on the issue of sexual harassment in housing is a 1987 Wisconsin Law Review article, "Home is No Haven: an Analysis of Sexual Harassment in Housing." Author Regina Cahan stated "When sexual harassment occurs at work, at that moment or at the end of the workday, the woman may remove herself from the offensive environment. She will choose whether to resign from her position based on economic and personal considerations. In contrast, when the harassment occurs in a woman s home, it is a complete invasion in her life. Ideally, home is the haven from the troubles of the day. When home is not a safe place, a woman may feel distressed, and often, immobile."   The first fair housing decision relative to sexual harassment was Shellhamer v. Lewallen (1983). The plaintiffs were a married couple who were evicted because the wife refused to pose for nude pictures and have sex with the landlord. Having no real guidance on how to proceed, the Magistrate in the case turned to the Title VII guidance, which already recognized "quid pro quo" and "hostile environment" theories of liability in the workplace. The landlord had made two sexual requests over a three to four month period; the magistrate determined that this did not rise to the level of a hostile environment. However, since a quid pro quo claim does not require persistent conduct, this test was met. This was due to the fact that the decision to evict was based on Mrs. Shellhamer s refusal to give in to the requests.   While sexual harassment is illegal, the law does not prohibit "genuine but innocuous" differences in the way men and women interact with members of the same sex and the opposite sex. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of housing.   Context   "Context" is an important element in determining whether or not sexual harassment has occurred. The Supreme Court used the following example of how context must be considered: If a pro football coach smacks one of his players on the butt, it would not be considered sexual harassment. But, if that coach smacks his secretary (whether female or male) on the butt, it could be considered harassment.   In addition to examining context, the behavior must also be "unwelcome." Behavior that is welcomed cannot be harassing behavior.   There are two general types of sexual harassment in housing (and employment); "quid pro quo," and hostile environment.   Quid Pro Quo Harassment   Quid pro Quo ("this for that"),or "conditional tenancy" harassment is the most serious form of sexual harassment. It essentially conditions the provision or a benefit of housing on the performance of sexual favors. A fairly recent case, U.S. v. Barnason (May 2012), illustrates some of the components of a conditional tenancy case. In this case, the owners and managers of three Manhattan apartment complexes agreed to pay more than $2 million to six women who were harassed by the superintendent (who was a Level 3 Registered Sex Offender) of the properties. Actions that the superintendent took against the women included: Entering apartments while drunk - demanding sex; Unwelcome groping and fondling; Unwanted verbal sexual advances; Demanding sex in return for rent reductions; and Taking adverse action against women who refused. In addition to the monetary penalty against the owner, the offending employee has been banned for life for working at a residential property. Conditional tenancy claims generally require only one incident to rise to the level of sexual harassment.   A more recent case provided the largest settlement in a fair housing sexual harassment action. In U.S. v. Wesley (July 2015), the respondents settled for $2.7 million. In this case, two employees of a local housing authority (the Section 8 Coordinator and the Housing Inspector), were accused of sexually harassing female voucher holders. The harassment included making unwanted sexual comments, sexual touching, and taking adverse action against women who refused their advances. The employees undertook these actions while exercising their authority on behalf of the Agency, and the Agency failed to take reasonable preventive or corrective measures. For this reason, the Agency was found to be "vicariously liable" for the actions of the employees. The two employees, as in the Barnason case above, have been banned from real estate for life.   Hostile Environment   Hostile environment is defined as unwelcome behavior of a sexual nature that creates an intimidating or hostile housing environment. Trivial or isolated incidents do not rise to the level of harassment; the actions must be severe and pervasive.   In determining whether a hostile environment exists, courts and judges will examine all circumstances, including: Frequency; Severity; and Whether the actions are physically threatening or humiliating or just a mere utterance.   Courts have ruled in favor of defendants when inappropriate behavior did not meet this standard. In Hall v. Meadowood Limited Partnership (2001), a court ruled that though the defendant s conduct was "crude or inappropriate," the fact that it occurred "only occasionally and was not severe (and therefore) did not rise to the level of actionable sexual harassment."   HUD published a proposed rule in the October 21, 2015, Federal Register titled, "Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act." In addition to formalizing standards for assessing claims of harassment under the FHA, the regulation is intended to clarify when housing providers may be held directly or vicariously liable under the FHA for illegal harassment.   Owners and managers of housing must understand how the rules relating to discrimination based on sex apply to them, and should develop specific policies to limit the potential for such claims. Following are recommendations for the steps that owners and property management firms should take to minimize the risk of discrimination claims based on sexual harassment.   Establish a Zero-Tolerance Policy Against Sexual Harassment. This should be a written policy that makes it clear that any type of sexual harassment will not be tolerated and will result in disciplinary action. The policy should include examples of what constitutes sexual harassment, including Explicitly or implicitly suggesting sex in return for living in the community, receipt of services, or otherwise related to the terms and conditions of tenancy; Suggesting or implying that failure to accept a date or sex could adversely impact a tenant s residency; Initiating unwanted physical contact, such as touching, grabbing, or pinching; Making sexually suggestive or obscene comments, jokes, or propositions; and Displaying sexually suggestive photos, cartoons, videos, or objects. Pay close attention to employee hiring and training. All employees should receive regular (at least annual) training on fair housing (including sexual harassment). Employers should also check references for new employees, and do criminal record checks (note the Barnason case above). Adopt specific rules for employees who have access to units. Such employees should only enter units for repairs, maintenance, or in the case of emergencies, and except for emergencies, should never go in unless reasonable notice was given. If residents are home, staff should not enter a unit until the resident lets them in and staff should never enter a unit if the only persons in the unit are children (under age 18). And, under no circumstance, should an employee fraternize or establish a social relationship with residents. Never ignore a sexual harassment complaint. All such complaints should be investigated as soon as possible, and corporate counsel should be consulted regarding how to proceed. If a complaint is justified, take immediate action to halt the harassment. If the harasser is an employee, take appropriate disciplinary action, such as reprimand, suspension, or termination - whatever is warranted. If the complaint is about a vendor, seek legal advice on how to proceed - but proceed; never ignore the issue. Finally - never retaliate against anyone complaining about sexual harassment. Under the FHA, it is illegal to "coerce, intimidate, threaten, or interfere with" anyone who exercises their rights under fair housing law.

Significant New Housing Law Ready for President's Signature

On July 14, 2016, the U.S. Senate passed HR 3700, the Housing Opportunity Through Modernization Act of 2016. It is expected that the President will sign the Act into law shortly at which time the statute will be sent to the Department of Housing & Urban Development to be placed into Regulation.   The Act contains seven Titles and makes some significant changes to some HUD housing programs, most particularly the Section 8 Multifamily Housing Program, Public Housing, and Vouchers. The seven Titles of the Act are:   Title I: Section 8 Rental Assistance & Public Housing Title II: Rural Housing Title III: FHA Mortgage Insurance for Condominiums Title IV: Housing Reforms for the Homeless and for Veterans Title V: Miscellaneous Title VI: Reports Title VII: Housing Opportunities for Persons with Aids   This memorandum deals primarily with Title I, since changes in this area have the greatest impact on existing multifamily housing properties. The memo outlines changes from regulations that are currently in effect.   Title I   Initial Inspections   Correction of Non-Life Threatening Conditions: Units that fail to meet the inspection standard for participation in the Housing Choice Voucher program will no longer result in a withholding of assistance payments unless the failure is the result of a life-threatening condition. If a life-threatening condition exists, the PHA may withhold payments beginning 30-days after the deficiency is discovered. Once the correction has been made, payments will begin again. If the dwelling unit is not brought into compliance with housing quality standards (HQS) within 60-days after the unit is deemed out of compliance (or such reasonably longer period as the agency may establish, the tenant will be required to move; and The PHA will provide the tenant the necessary forms to allow the tenant to move to another dwelling unit and will transfer assistance to that unit. Protection of Tenants: If assistance is withheld due to the failure of a unit to pass inspection, the owner of the unit may not terminate the tenancy of the resident, but the tenant may terminate tenancy through notice to the owner. Termination of Lease or HAP Contract: If the owner does not correct the noncompliance within 60-days of the determination of noncompliance, the Agency must terminate the housing assistance payments (HAP) contract for the unit. Relocation: The agency must give families residing in such units 90-days (or longer) to lease a new unit. The 90-day unit begins upon termination of the HAP contract. Availability of Public Housing Units: If a family is unable to find a unit within the required timeframe, the PHA shall, at the option of the family, provide such family a preference for a public housing unit that becomes available after expiration of the 90-day timeframe. Assistance in Finding a Unit: Agencies will be able to provide assistance to families in finding a new residence, including the use of up to two months of any assistance payments that were withheld or abated due to the failure of the unit to meet HQS standards. Assistance may include security deposits and reimbursement for reasonable moving expenses. These provisions will not apply if the reason for the unit not meeting HQS was tenant-caused damage. Effective date: This section will take effect following HUD publication of Notice or Regulation implementing the requirements.   Income Reviews   Income Reviews for Public Housing & Section 8 Programs: Reviews of Family Income: Annual reviews will still be required for all families, except for families with fixed income. Households may request a review of income anytime the income or deductions of the family change by an amount that is estimated to result in a decrease of 10% or more in adjusted annual income (this is a change from the current $40 monthly reduction in income). The income must be reexamined any time the income or deductions of the family change by an amount that will increase the annual income by 10% or more. However, any increase in the earned income of a family will not require an interim recertification (this is a major change from current Section 8 rules). There will be an exception to this if the increase due to employment corresponds to a previous decrease that resulted in an interim recertification. Calculation of Income: Use of current year income - for purposes of initial occupancy, agencies or owners shall estimate income for the upcoming year. Use of prior year income - for purposes of annual reviews, agencies or owners shall use the income of the family as determined for the preceding year, taking into consideration any interims performed during the preceding year. Other Income - agencies or owners will have the authority to make other adjustments that are considered appropriate. Safe Harbor - agencies or owners may use income determinations made for participation in other programs such as TANF, Medicaid assistance, and the SNAP (food stamp) program. PHA & Owner Compliance - agencies and owners will not be considered out of compliance for de minimis errors made in the calculation of family incomes. Adjusted Income: There have been some significant changes to the determination of adjusted income: Excluded amounts: Income will not be imputed to assets unless the net family assets exceed $50,000 - this is an increase from the current $5,000. This amount will be adjusted by HUD annually based on the inflation rate. Expenses related to the Aid and Attendance program for veterans who are in need of regular aid and attendance. HUD will publish other statutory exclusions with the newly updated regulations. Earned income of students - HUD will determine by regulation the amount of earned income of full-time students that is to be excluded; this amount is currently any earned income in excess of $480 per year. HUD will also be able to determine the exclusion of any room and board for students. The one-time deduction for an elderly family will increase from the current $400 to $525; The dependent deduction will remain at $480 for the time being, but along with the elderly deduction, will be adjusted annually based on inflation, rounded to the nearest $25. Health & Medical Expenses: in a major change, allowable medical expenses for an elderly or disabled family will now be the amount in excess of 10% of gross income instead of the current 3%. This will also be true for disability related expenses if such expenses enable a household member to work. Hardship exemptions will be available based on the new HUD regulations.     Housing Choice Voucher Program   PHAs will be able to establish a payment standard of not more than 120% of fair market rent when required as a reasonable accommodation for a disabled person, without HUD approval. Payment standards in excess of 120% of FMR will require HUD approval.   Effective date: HUD will issue notices or regulations implementing this section of the Act. These provisions will take effect at that time, but only at the beginning of a calendar year.   The Act requires that the Secretary of HUD conduct a study on the impact of the changes on elderly and disabled individuals not later than 12-months after the Act goes into effect.   Limitation on Public Housing Tenancy for Over-Income Families   A major change for the Public Housing Program is the requirement that higher income families already in occupancy will no longer be eligible for public housing. If the income of a family in public housing exceeds the income limit for two consecutive years, the rent of the family must be raised to the applicable market rent for the geographic area and terminate the tenancy of the family in public housing not more than six months after the second income determination. The income limit that may not be exceeded is 120% of the median income for the area, so it is not the low-income limit for the area. The HUD Secretary may establish higher income limits because of prevailing levels of construction costs, or unusually high or low family incomes, vacancy rates, or rental costs. Also, this regulation will not apply to over-income families living in public housing due to a lack of qualified low-income residents.   Limitation on Eligibility for Assistance Based on Assets With regard to the Public Housing Program, units may not be rented and assistance may not be provided to households with assets in excess of $100,000 or who own a home that is suitable for occupancy, unless the family is receiving Section 8 assistance, is a victim of domestic violence, or is offering the home for sale. Asset Exclusions At least for public housing, the full value of retirement accounts will be excluded as an asset - not just the value if regular distributions are being taken. We will need to wait until HUD issues regulations to see if this will apply to Multifamily Housing (e.g., Section 8) as well as Public Housing. Self-Certifications It does appear that for both Multifamily Housing and Public Housing, families will be able to provide a certification that net assets do not exceed $50,000 in lieu of verification. This amount will be adjusted annually based on inflation. This is clearly a major change from the current requirement that permits such an affidavit when assets are $5,000 or less for public housing and vouchers (as well as the LIHTC program). Project-Based Vouchers The new law permits PHAs to assign up to 20% of voucher units as project-based (up from 15%). An additional 10% of units may be authorized as project-based to house homeless families, families with veterans, supportive housing to persons with disabilities or elderly persons, or in areas where vouchers are difficult to use. Not more than the greater of 25 units or 25% of the units in any project may be provided project-based vouchers. PHAs may enter into HAP contracts for up to 20-years for project-based assistance, subject to the availability of Congressional funding. Preference for United States Citizens or Nationals The new law will give preference or priority for assistance to citizens or national of the United States prior to any alien who is otherwise eligible for such assistance. This will impact waiting list administration. This synopsis if for informational purposes only. Agencies, Owners, and Managers should make no changes in operational procedures at this time. None of the statutory changes outlined here will go into effect until HUD issues new Notices and regulations implementing the law.    

Verification of Cash Payments

Verification of income from employment is usually just a matter of obtaining a written verification of income from the employer or the most recent four to six consecutive pay stubs from the applicant. However, in some cases, persons are paid in cash and do not receive paychecks or directly deposited employment income. In these cases, verification of income can be problematical. When verifying income for Section 8 or other HUD projects, HUD requires obtaining third party written verification, and if such verification is not possible, oral third party verification may be obtained. If not third party verification is possible, in some circumstances an affidavit provided by the applicant may be acceptable, but this is certainly a last resort - even for HUD properties where mistakes in certifications can be corrected by an interim certification. Certifications for Low-Income Housing Tax Credit Projects (LIHTC) are a different issue, since there generally is no "do-over." Tax credit managers have to get it right the first time and an incorrect certification (or one that the Housing Finance Agency [HFA] will not accept) can lead to a credit reduction for a property.   Some states (California for example) have very strict income verification requirements that exceed the requirements outlined by HUD in Handbook 4350.3, Chg. 4. HFAs are permitted to impose requirements that are stricter than HUD and LIHTC owners and managers in those states need to understand what those requirements are. We review LIHTC properties in all the states and territories and I teach students from all over the country how to comply with the requirements of the LIHTC program. One of the most common questions I get when teaching and one of the most common issues my staff confronts during file reviews is how to handle the verification of income for someone who is paid in cash. Following are the procedures we recommend in these cases, but keep in mind - if the requirements of your HFA are more stringent than our recommendation, you should follow your state s guidance.   If your applicant/resident states that they are paid in cash for their employment, we recommend the following information be obtained:   A statement from the employer on company letterhead or management form regarding the amount paid to the employee in cash and how the money is paid (i.e., weekly, bi-weekly, semi-monthly, monthly, etc.). Obtain the most recent tax return of the applicant/resident either by having the resident obtain a copy of the transcript from the IRS by calling 1-800-908-9946 or obtaining the return directly from the IRS by having the applicant sign an IRS Form 4506-T and submitting the form to the IRS. If the applicant/tenant states that they do not file taxes, the return should still be requested from the IRS. The IRS will confirm that no return is on file. The IRS has determined that in many cases, individuals who are paid in cash are "independent contractors" and are required to file tax returns.   Managers should keep in mind that in order to obtain the tax return using one of the methods shown above, a person must have either a Social Security Number or a taxpayer identification number (TIN). I recommend that if a tenant is paid in cash and does not have a SS number or TIN, I recommend that they be required to apply for one prior to considering their application.   In essence, we strongly advise against renting to applicants solely on the basis of a self-certification of employment income (or most other forms of income for that matter). Residency in LIHTC properties is a privilege - not a right, and the burden to demonstrate eligibility rests with the applicant; management s burden is to request the required information.

Rural Development Voucher Program

The Rural Housing Service (RHS) published a notice in the Federal Register on June 29, 2016, titled "Rural Development Voucher Program." The purpose of the notice was to inform the public of the general policies and procedures for the Rural Development Voucher Program (RDVP) for fiscal year 2016. Rural Development Vouchers are only available to low-income tenants of RD financed multi-family properties where the RHS Section 515 loan has been prepaid prior to the loan s maturity date. In order for eligible tenants to participate, a voucher obligation form must be submitted within ten-months of the foreclosure or prepayment. In the event of a prepayment or foreclosure, RD will notify tenants of the availability of vouchers and how to obtain a voucher.   $15 million of RHS Vouchers will be made available to any low-income household (including those not receiving rental assistance) residing in a property financed with a Section 515 loan that has been prepaid after September 30, 2005. The amount of such voucher is the difference between comparable market rent for the Section 515 unit and the tenant paid rent for the unit. The RDVP is administered using the same rules as the HUD Housing Choice Voucher Program.   Low-income tenants in the prepaying property are eligible to receive a voucher to use at their current rental property, or to take to any other rental unit in the United States and its territories.   There are some limitations on the use of the voucher: The rental unit must pass an RD health and safety inspection, and the owner must be willing to accept an RD Voucher; The Voucher cannot be used for units in subsidized housing, such as Section 8 or public housing, when two housing subsidies would result; and The Voucher may not be used to purchase a home.   Tenant Eligibility   The tenant must meet the following requirements: Be residing in the Section 515 project on the date of the prepayment or foreclosure; Be a United States citizen, U.S. citizen national, or a resident alien; and Be a low-income tenant on the date of the prepayment or foreclosure, meaning their income may not exceed 80% of the area median income as defined by HUD.   If RD determines that a tenant is low-income, the tenant has ten-months from the date of prepayment or foreclosure to return the Voucher Obligation Request form and citizenship declaration to the local RD office. Failure to submit these forms within the required timeframe eliminates the tenant s opportunity to receive a voucher.   The tenant receiving a Rural Development Voucher has an initial period of 60 calendar days from issuance of the voucher to find a housing unit. RD may grant one or more extensions for up to an additional 60 days, but no tenant may have more than 120-days to find a replacement unit.   Initial Lease Term   The initial lease term for the housing unit where the tenant wishes to use the voucher must be for one-year.   Inspection & Unit Approval   Once the tenant finds a housing unit, RD will inspect and determine if the housing standard is acceptable within 30-days of RD s receipt of the HUD Form 52517, "Request for Tenancy Approval Housing Choice Voucher Program," and the Disclosure of Information on Lead Based Paint Hazards. The inspection standard used for the RD Section 515 Program will be used for the RD Voucher Program.

Child Support Pass-Through and Disregard Policies for Public Assistance Recipients

Child Support Pass-Through and Disregard Policies for Public Assistance Recipients   Under federal law, families receiving public assistance, known as Temporary Assistance for Needy Families (TANF), must cooperate with child support establishment and enforcement efforts.   In addition, TANF recipients must assign their rights to child support payments to the state. When a state collects child support on behalf of a TANF recipient, the state is permitted to keep the money to reimburse itself and the federal government for TANF assistance. States, however, have the option of allowing some of the child support payment to be passed through to the parent and child and "disregarded" when determining TANF assistance, meaning the amount would not be considered income for purposes of determining TANF eligibility.   About half the states have chosen various ways of passing through child support without reducing the family s TANF assistance. Some states pass through up to $50, while others pass through $100 - $200, depending on the number of children. In 2014, states distributed more than $118 million in child support payments to families receiving TANF.   Following is a breakdown of the 52 states and territories based on their pass-through and disregard policies. The information is from October 2015, which is the most recent information available.   The following states permit no pass-through or disregard: Alabama Arizona Arkansas Florida Guam Hawaii Idaho Indiana Iowa Kansas Kentucky Louisiana Maryland Michigan (Michigan discontinued a $50 pass-through and disregard effective 10/1/11 due to budgetary constraints). Mississippi Missouri Nebraska Nevada New Hampshire North Carolina North Dakota Ohio Oklahoma South Carolina (The SC statute still indicates that there is a $75 pass-through. However, the state has not passed through any child support since 2010). South Dakota Utah Virgin Islands Washington (WA suspended its $100/$200 pass-through in 2010). Wyoming   The following states permit a pass-through and disregard: Alaska - $50 California - $50 Colorado - All (effective January 1, 2017) Connecticut - $50 Delaware - $50 District of Columbia - $150 Georgia - up to unmet need for purposes of fill-the-gap budgeting. This means that the amount of child support distributed to the family is equal to the difference between the maximum eligibility standard and the recipient s income; essentially to fill the gap between income and need. However, Georgia has not actually passed through any child support since 2010. Illinois - $50 Maine - $50 Massachusetts - $50 Minnesota - Full pass-through and a disregard in the amount of $100 for one child and $200 for two or more children. Montana - $100 New Jersey - $100 New Mexico - up to $100 for one child and $200 for two or more children. New York - up to $100 for one child and $200 for two or more children. Oregon - $50 per child, per month, up to $200 per family. Pennsylvania - $100 for one child and $200 for two or more children. Puerto Rico - $50 Rhode Island - $50 Tennessee - up to unmet need. Texas - $75 Virginia - up to $100 West Virginia - up to $100 for one child and $200 for two or more children. Wisconsin - $75   When determining income for affordable housing programs such as Section 8 and the Low-Income Housing Tax Credit, the full amount of TANF is counted as public assistance and the full amount of the pass-through is counted as child support. Managers should not count child support that is held by the state as repayment of TANF.

HUD Proposed Rule on Small Area Fair Market Rents - June 16, 2016

In the June 16, 2016, Federal Register, HUD published a proposed rule titled, "Establishing a More Effective Fair Market Rent System; Using Small Area Fair Market Rents in Housing Choice Voucher Program Instead of the Current 50th Percentile FMRs."   HUD is proposing the use of Small Area Fair Market Rents (Small Area FMRs) in the administration of the Housing Choice Voucher (HCV) program for certain metropolitan areas. These rents will be used in place of the current 50th percentile rent in order to address high levels of voucher concentration. HUD believes that Small Area FMRs will give HCV residents a more effective opportunity to move into areas of higher opportunity and lower poverty. This would be accomplished by providing the voucher holders with enough subsidy to make such areas accessible and the reduce the number of voucher families in areas of high poverty concentration.   HUD proposes to use several criteria in determining which metropolitan areas would best be served by application of Small Area FMRs. These criteria include a threshold number of vouchers within a metropolitan area, the concentration of current HCV tenants in low-income areas, and the percentage of renter occupied units in the metropolitan area with gross rents above the payment standard basic range. HUD s goal with the proposed rule is to provide HCV tenants with a greater ability to move into areas where jobs, transportation, and educational opportunities exist.   Comments on the proposed rule are due no later than August 15, 2016.   Purpose of the Proposed Rule   The subsidy for the HCV program is currently determined by a formula that considers rent prices across an entire metropolitan area. However, rents can vary widely within a metropolitan area depending upon the size of the metropolitan area and the neighborhood within the metropolitan area within which a person resides. Experience with the 50th percentile method of rent determination shows that the majority of HCV tenants use their vouchers in neighborhoods with low rents but generally high poverty levels. The goal of this proposed rule is to increase the share of households that choose to use their vouchers in low poverty high opportunity areas.   In order to accomplish this, the rule proposes to determine rents on the basis of ZIP codes. Based on early evidence from PHAs using Small Area FMRs in certain metropolitan areas, HUD believes that Small Area FMRs are more effective in helping families move to areas of higher opportunity and lower poverty.   The proposed rule provides that Small Area FMRs will be set for metropolitan areas with at least 2,500 HCVs under lease; at least 20% of the standard quality rental stock, within the metropolitan area, is in small areas (ZIP codes) where the Small Area FMR is more than 110% of the metropolitan FMR; and the measure of the percentage of voucher holders living in concentrated low-income areas relative to all renters within these areas over the entire metropolitan area exceeds 155%.   HUD is especially interested in receiving comments based on certain elements of the proposed rule, including: Should HUD provide for Project-Based Vouchers that are in the pipeline to continue using metropolitan FMRs even if the area is designated as a Small Area FMR area? What additional policies or requirements should the final rule include that would mitigate the impact of significant and abrupt decreases in the FMRs for certain ZIP code areas on families currently under HAP contract in those impacted areas?   The move to expand the use of Small Area FMRs is a significant policy shift for HUD. It is important that PHAs and property owners with voucher residents review the proposed rule and provide comments to HUD by the noted deadline.

HUD Updates Two Forms - 92006 and 9834

HUD has recently updated two forms that are required for properties with HUD assistance, the HUD Form 92006 and Form 9834.   The Form 92006 - Supplement to Application for Federally Assisted Housing contains an updated expiration date of February 28, 2019. Even though this is the only change on the form, properties must begin using it immediately and discard the forms that show an expiration date of November 30, 2015. If an applicant or resident completed the form after November 30, 2015, they do not need to complete a new form at this time. Just make a note next to the old date that the new form was not released at the time the resident signed the form, initial, and date the note.   HUD also updated the HUD Form 9834, Management Review for Multifamily Housing Projects. The only changes are the date of issue and expiration and more questions about the EIV system. This form will be used by reviewers when conducting MORs and should be used by owners when preparing for MORs. The new form has an expiration date of April 30, 2018.

Preservation and Recapitalization of Section 236 Properties

Preservation and Recapitalization of Section 236 Properties   The Section 236 Program was created by Congress in 1968 and was designed to involve the private sector in the creation of affordable rental housing. Market rate lenders provide loans that are either HUD or FHA insured, and in some cases financing is provided by State Housing Finance Agencies (HFAs). HUD also provided Interest Reduction Payments (IRP) that subsidized the loans down to a one percent interest rate with a 40-year term. Tenant income limits are set at 80% of the median income and rents are capped at HUD-approved, cost-based Section 236 Basic Rents. Rents for higher income residents are capped at the Section 236 Market Rent Level (the rent needed to amortize the market rate of the loan). Project-based rental assistance (PBRA) was also included for many projects.   There are currently 550 Section 236 projects at risk with more than 100,000 units. All of these will required preservation and recapitalization in the next few years. HUD has developed a complete program to assist owners of Section 236 projects with this process; this article is designed to introduce owners to the process and explain how and where to seek assistance.   Assessing options will require a strategy that will involve refinancing, possible restructuring of the Section 236 subsidy, renewal of rental assistance contracts, and possible participation in the RAD 2 program and/or the Low-Income Housing Tax Credit (LIHTC) Program.   There are five steps required for a successful preservation action: Know the property; Set your preservation goals; Choose your preservation options; Apply for financing and HUD approvals; and Secure long-term stability.   Know the Property - The first step in the process is the gathering of documents - a lot of documents. These documents relate to the financing of the project, its rental assistance, and information on the capital needs and reserves of the property.   Documents to gather regarding financing: *Section 236 Mortgage Note; *Section 236 Regulatory Agreement; *Interest Reduction Payment Amortization Schedule; *Flexible Subsidy documents; *ELIHPA or LIHPRHA Plan of Action and Use Agreement (if any); *Other financing documents; and *Financial statements >>When does the Section 236 loan mature? How many months are left on the IRP? These critical questions must be answered by the documents.   Documents to gather regarding rental assistance: *Project-Based Section 8 Contract; *Rent Supplement (Rent Supp) and/or Rental Assistance Payment (RAP) contract; and *Rent roll >>When do the rental assistance contracts expire? What is the mix of subsidized and unsubsidized rents? What are the rents?   Documents to gather regarding capital needs and reserves: *Review the latest REAC report for capital and repair needs, know your score, and understand the issues; *Know the current balances in your reserves for replacement and residual receipts accounts; and *You will need a Capital Needs Assessment (CNA) that evaluates your property's upcoming capital replacement needs.   Set Preservation Goals - After gathering all required information, the next step is to set preservation goals. Primary goals should be: *Safeguard long-term rental assistance; *Improve and modernize the property through capital repairs; and *Stabilize the property by placing on a sound financial footing.   Typical capital improvement goals: *Major repairs; *Modernization of older units and common areas; *Conversion of efficiencies to one-bedroom units; *Energy efficiency upgrades; and *Accessibility improvements.   Choose Preservation Options   Preservation options fall into two categories - financing and rental assistance. With regard to financing owners will need to raise capital, examine prepayment options, consider IRP decoupling, and look into Flexible Subsidy loan deferral. Rental assistance options include Section 8 contracts, vouchers, and RAD 2.   Raise Capital   Capital will need to be raised in order to address capital needs and get access to accumulated equity. Sources of capital may include: >Refinancing - New First Mortgage Debt *FHA-insured, Fannie Mae, Freddie Mac or State HFA >Equity *Low-Income Housing Tax Credits (LIHTC) *Cash-on-cash >Subordinate debt *HOME, CDBG, State housing trust funds, National Housing Trust Fund >Grants (mainly available to non-profits)   Prepayment   Prepayment of the Section 236 loan will usually be required in order to refinance a property and to trigger the issuance of Tenant Protection Vouchers (TPVs). Some properties need HUD permission to prepay. These include: *Nonprofits, properties with Flex Sub Loans, and certain FHA loans with Rent Supplement Contracts. All owners should examine the mortgage note and other property documents to determine prepayment requirements. Prepayment is governed by Section 250(a) of the National Housing Act.   Prepayment when HUD Permission is Required   Tenant Notification Requirements   *Tenants must be notified of the prepayment at least 150-days before the expected prepayment. When the owner submits the prepayment request to HUD, tenant comments must be submitted as an exhibit to the request. *Owners must send a copy of the tenant notification letter to the HUD field office with a signed certification that it has been delivered to the tenants.   Rehab Requirements   *Properties must be rehabbed and minimum requirements apply.   Affordability Requirements   *Properties must be maintained as affordable (with the same benefits that existing under the 236 Program) for low-income residents through whatever the original mortgage note term was. *The owner must execute a new Use Agreement.   Resources & Tools   *Notice H 2006-11 provides information relating to prepayments.   Prepayment when Permission is NOT Required (Governed by Section 219 of the FY 1999 HUD Appropriations Act - Wellstone Amendment)   Tenant Notification Requirements (Wellstone Notice)   *Tenants must be notified at least 150 days - but no more than 270 days - before prepayment may occur. >This requirement may be waived by HUD, but only if necessary to facilitate preservation.   There may be no rent increases for 60-days after prepayment but there are no HUD rehabilitation requirements.   Decoupling the IRP Subsidy   Owners may "decouple" the remaining IRP subsidy at prepayment and apply it to a new loan. In other words, even though the Section 236 loan is being prepaid, the interest reduction payment subsidy may remain with the property. These funds may assist in leveraging new debt capital for the project. The new lender will receive the remaining IRP payments from HUD.   Setting the Rent when Decoupling   If the project has Section 8 units, the rent will be set per the renewal options outlined in the Section 8 Renewal Guide. Owners will have to coordinate Section 8, FHA, and Section 236 rent underwriting.   Non-Section 8 units will be required to retain Section 236 rent-setting rules for five years after pre-payment. The rents will be budget-based and capped at the Section 236 required levels.   IRP Decoupling Use Agreement   The property will be required to maintain Section 236 occupancy and income restrictions. New residents may have incomes no higher than 80% of the area median income, and as noted above, the Section 236 Basic or Market Rents will have to be maintained for five years beyond the current maturity date of the loan.   There can be no involuntary displacement of current residents and Section 8 contracts must be terminated and immediately renewed for 20 years.   IRP Decoupling Distributions   Annual distributions to owners are restricted to 6% of the new adjusted equity. LIHTC equity, long-term deferred developer fees, and owner cash are considered new equity, but not grants and soft loans. If there is no new equity, return is limited to 10% of 10% of the new mortgage amount.   Distributions may be taken only from surplus cash, and for HFA-financed Section 236 deals, state or local law controls the distributions.   Flexible Subsidy Loan Deferral   Owners with a Flex Sub loan may be able to defer repayment of the loan in order to avoid a balloon payment at prepayment, maturity, or sale. In the late 1970 s, HUD provided loans for operating assistance or capital improvements. Such loans are required to be paid in full at the maturity or prepayment of the Section 236 loan, or at sale of the property. Capital improvement loans were amortized and typically have low balances. Operating assistance loans were structured as balloon payments. Owners wishing to defer the Flex Sub loans face certain requirements: *Regulatory compliance; *There may be no other funding sources available to repay the loan; *The maximum deferral and re-amortization is the greater of 20 years or the term of the new first mortgage; *Financial projections must show that repayment under the new terms is feasible; and *The owner must enter into a new Flex Sub Use Agreement restricting rents and incomes to match the new term of the Flex Sub Loan.   Section 8 Contract Renewal   When recapitalizing a Section 236 project, lenders and LIHTC investors will insist on a new 20-year HAP contract for Section 8. Owners may be able to increase rents to market level under the new contract. Owners with existing Section 8 contracts must follow the guidance in the Section 8 Renewal Guide for available options and eligibility to renew. The main factors determining Section 8 renewal options are: Are rents over or under the market at the time of renewal? Is the debt FHA-insured? Does the project come under LIHPRHA or ELIHPA? Are there other regulatory agreements? Is the owner a nonprofit?   Vouchers   Tenant Protection Vouchers   Tenant Protection Vouchers (TPVs) may be available to owners of Section 236 projects. These vouchers provide Section 8 assistance to tenants after the loss of rental assistance or at Section 236 mortgage prepayment. TPVs protect residents from being displaced due to rent increases.   The local Public Housing Agency (PHA) issues TPVs. The vouchers are portable, but in certain circumstances may be project-based. Availability is subject to annual Congressional appropriations, and the tenants must income qualify. Units must also meet Housing Quality Standards. TPVs may be "Enhanced Vouchers (EV)," or regular Housing Choice Vouchers (HCV).   Enhanced Vouchers   Enhanced vouchers provide more protection for residents than standard TPVs, and the rent-setting requirements are more flexible. The availability of EVs is triggered when: *A Section 236 loan is prepaid and is subject to Section 219 (Section 219 of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, requires an owner of preservation eligible projects to give at least 150 days, but not more than 270 days, advance notice of mortgage prepayment); or *The prepaid property has a Flex Sub Loan; or *The Section 8 contract is not renewed at expiration. Discretionary TPVs for Section 236 Properties   If a Section 236 project does not meet the requirements for TPV or EV issuance, HUD has limited competitive funds for Enhanced Vouchers or Project-Based Vouchers. Certain tenants in low-vacancy areas who are at risk due to loss of affordability and not otherwise eligible for TPVs may be eligible for these discretionary vouchers.   Rental Assistance Demonstration 2 (RAD 2)   RAD 2 allows conversion of expiring non-renewable Rent Supp and RAP contracts into long-term project-based Section 8. While TPVs generated by Rent Supp or RAP expiration are tenant-based, RAD 2 allows conversion to Project-Based Vouchers (through the local PHA) or Project-Based Rental Assistance (through HUD). Applications can be submitted on a rolling basis according to the rules outlined in the Final RAD Notice from HUD.   Apply for HUD Approvals   After choosing the preservation options, owners will apply for financing and HUD approval.   Preservation Application Process   Processing of applications is centralized through the HUD Office of Recapitalization (Recap). To begin the process for a Section 236 preservation transaction, owners should go to the Multifamily Preservation Resource Desk at http://www.hudmfpreservation.net/ and click on "Submit an Application." This begins the process of securing HUD approval and will deal with: *Prepayment approval or permission request; *Waivers with HFA-Financed Transactions; *IRP decoupling; *Flexible Subsidy Loan deferral requests; *Request for increase in post-transaction rents; *Issuance of TPVs; *Nonprofit fees and sales proceeds; *LIHPRHA - ELIHPA amendments; and *Unit Conversion requests (combining efficiencies into one bedroom units).   Prepaying State HFA Loans   Many Section 236 loans were originated through a State HFA. All Section 236 preservation rules and incentives apply to these properties. Owners must apply for approvals through HUD like any 236 project PLUS contact their HFA about their required prepayment approvals.   Secure Long-Term Stability   The last steps in the process are to close on the new financing, secure the rental assistance, renovate the property, and stabilize the property by placing it on solid financial footing.   Owners whose loans have matured or are maturing very soon should contact HUD immediately to discuss their options. Issues that should be discussed with HUD include: If loan has not matured, can TPVs be obtained by prepayment? Would the project qualify for discretionary TPV set-aside funds? Are you able to renew your Section 8 rental subsidy contract to leverage new financing for capital needs?   HUD can guide you through the entire process, and the best place to start is the HUD account executive or project manager for the project. An option is to email the Office of Recap at 236Preservation@hud.gov. Ask them any questions you may have including what you need to do to get started. They can also give you suggestions on how to pay for predevelopment costs.   The key for Section 236 owners is to begin the process now. Even if you have a year or two before the loan matures, starting the process early will prevent a lot of sleepless nights down the road.