HUD Notice H2013-21, Implementation and Approval of Owner Adopted Admissions Preferences for Individuals or Families Experiencing Homelessness

This Notice provides guidance on the circumstances under which owners of HUD-assisted properties may adopt admissions preferences for the homeless.

Prior to this Notice, HUD had strictly interpreted 24 CFR §5.655(c)(1) – (c)(5) to mean that project owners were limited in the preferences that they could implement to those preferences specifically referenced in the Regulation.

Since homeless families were not mentioned in the Regulation, they could not be given a preference. HUD has determined that failure to mention a specific preference in the Regulation does not preclude owners from establishing such a preference.

This Notice applies to all HUD Multifamily Rental Assistance programs.

 

Definition of Homeless

 

The Homeless Emergency Assistance & Rapid Transition to Housing Act of 2009 (HEARTH Act) provides the HUD definition of homeless. Owners may use the HUD definition of homeless or establish an alternative definition, based on local needs. The definition may be more narrow or broader than the HUD definition, but owners must obtain approval from the HUD Field Office for any definition other than the HUD definition.

 

Implementing a Homeless Preference

 

• Eligibility & Requirements: Preferences affect only the order in which applicants are selected from the waiting list. Applicants must still be eligible and owners may enforce their own reasonable screening criteria. Owners must inform all applicants of the preferences and provide information on how to demonstrate eligibility for the preference; such information must also be provided to persons currently on the waiting list.

 

 

 

 

Tenant Selection Plan & AFHMP

 

• All preferences must be identified in the Tenant Selection Plan (TSP), and, if required, in the Affirmative Fair Housing Marketing Plan (AFHMP).
• Any preference not cited in 24 CFR §5.655(c) must be approved by the local HUD office, including a homeless preference.
  • Note that HUD does not have to approve termination of a preference, but the TSP must be amended when a preference is removed.

 

Using a Homeless Definition

 

• While an owner may adopt a definition other than the HUD definition of homeless, the definition may not exclude any protected class, such as families with children. For example, a preference could not be given to homeless single males or females.

 

Limiting Preferences to People Referred by a Partnering Organization

 

• Preference may be given to households referred by one organization or a consortium of organizations.
• Preference may be given for an entire property or a percentage of units.
• Units may not be set-aside or held off-line for the homeless, but vacancies may be filled by alternating selections from the regular waiting list and the homeless waiting list.
  • HUD will not prescribe the ratio of admissions (e.g., 1:2, 1:4, etc.).
  • Preference applicants must be screened in the same manner as applicants from the regular waiting list.

 

Use of Alternating Selection

 

• Applicants must be selected by alternating waiting lists and the specific method must be identified in the TSP.

 

 

 

Identifying Preference-Qualified Applicants on the Current Project Waiting List

 

• Applicants on the current project waiting list must be given an opportunity to show that they qualify for the additional preference.
• They must be given notice of the opening of a new waiting list and information on how to establish eligibility for the new waiting list, including a list of partnering agencies.

 

Verifying Preference Eligibility

 

• Owners may require proof of eligibility for a homeless preference or rely on a verification from a partnering organization.

 

Property Designations

 

• If an owner has a property designation of elderly or disabled on all or some of the HUD assisted units, the designation is not superseded by the new preference.
  • E.g., 100% elderly property, all units would have to be occupied by elderly. For a homeless person to occupy such a unit, they would also have to be elderly.

 

Ensuring Fair Housing Compliance

 

• The owner should examine demographic data from the waiting list population and of the community population and compare this to the demographic characteristics of those who would qualify for the preference to ensure that the preference does not create a disparate impact on a particular protected class from accessing the program.

 

Submission & Approval of Preference Requests

 

• Owners must receive HUD approval in order to adopt an admissions preference not specified in 24 CFR §5.655(c). A written request must be submitted to the local HUD Field Office specifying the preference with a full description of the preference  and how it will be implemented.
  • HUD will approve an owner-adopted preference if it does not result in discrimination, violate civil rights or equal opportunity requirements, or conflict with statutory, regulatory or program requirements.

Admissions Policies Regarding Criminal Activity and Substance Use/Abuse

 

• Owners must establish standards that prohibit admission of:
  • Any household containing a member(s) who was evicted in the prior three years from federally assisted housing for drug-related criminal activity. The owner may, but is not required to, consider two exceptions to this provision:
    • The evicted household member has successfully completed an approved, supervised drug rehabilitation program; or
    • The circumstances leading to the eviction no longer exist (e.g., the household member no longer resides with the applicant household).
• A household in which any member is currently engaged in illegal use of drugs or for which the owner has reasonable cause to believe that a member’s illegal use or pattern of illegal use of a drug may interfere with the health, safety, and right to peaceful enjoyment of the property by other residents;
• Any household member who is subject to a state sex offender lifetime registration requirement; and
• Any household member if there is reasonable cause to believe that member’s behavior from abuse or pattern of abuse of alcohol may interfere with the health, safety, and right to peaceful enjoyment of the property by other residents. The screening standards must be based on behavior, not the condition of alcoholism or alcohol abuse.
• Owners may also establish additional screening criteria, as outlined in HUD Handbook 4350.3.
  • An owner wishing to serve more people experiencing homelessness should consider reviewing his/her discretionary admission policies to determine if any changes can be made to remove barriers.
    • Examples include easing of criminal screening procedures or prior landlord references.

 

Owners wishing to implement a preference for the homeless should review the entire Notice 2013-21. Also, feel free to contact me with any questions.