Housing Plus

Housing Plus

Guidance and legal insight for all aspects of housing and community development

By the Housing Group at Ballard Spahr

Housing Opportunities through Modernization Act of 2016 (HOTMA) Signed into Law

Posted in Government-Assisted Housing, Legislative Initiatives, Public Housing, Section 8

On July 29, 2016, President Obama officially signed H.R. 3700- Housing Opportunities through Modernization Act of 2016 (“HOTMA”). Our previous blog post highlighted some of HOTMA’s most significant changes to the current housing choice voucher program. The Section 8 and public housing components of the bill will become effective upon the issuance of notice or other regulation from the U.S. Department of Housing and Urban Development.

 

President Obama to sign Housing Opportunities through Modernization Act of 2016

Posted in Government-Assisted Housing, Legislative Initiatives, Public Housing, Section 8

On July 19, 2016, bill H.R. 3700, more commonly known as the Housing Opportunities through Modernization Act of 2016 (“HOTMA”), was presented to President Obama for signature after being unanimously approved by the U.S. Senate on July 14th. First introduced in October 2015, the bipartisan bill previously passed in the U.S. House of Representatives back in February of this year. Although HOTMA touches on a variety of housing issues such as veteran’s assistance, rural housing, and mortgage insurance, the bulk of the legislation deals with reforms to the Section 8 housing choice voucher (“HCV”) program and public housing. Some of HOTMA’s most notable proposed changes to the current HCV statute include:

  • Extending the length of project based voucher (“PBV”) initial contract or extension terms from 15 to 20 years;
  • Adjusting the total allowable number of PBV assisted units in a project to the greater of 25 units or 25% of all dwelling units;
  • Modifying procedures to determine tenant income and tenant rents;
  • Allowing greater flexibility in awarding and administering PBV contracts; and
  • Simplifying initial inspection procedures.

The full text of the bill can be found here. As of Monday July 25th, the bill has not yet been signed, but signature is expected shortly. Ballard Spahr will continue to monitor this legislation and related regulatory updates to come.

HUD proposes Processing Guide for 2530/Previous Participation reviews; comments due June 16th

Posted in FHA-Insured Financing, Government-Assisted Housing, Policy, Uncategorized

On May 17, 2016, HUD published a notice in the Federal Register to announce the issuance of the “Processing Guide for Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Programs’ Participants” (the “Processing Guide”). A copy of the Processing Guide can be accessed here.

HUD proposes that the Processing Guide be used to supplement the proposed rule published in August that announced changes to regulations at 24 CFR Part 200, Subpart H, which govern the previous participation review process (the “Proposed Rule”). HUD reports that commenters expressed concern that the Proposed Rule was overly broad, which could further complicate the current process. In response to those comments, HUD proposes that the Processing Guide be used to supplement the Proposed Rule with specific information on review procedures, including, for the first time, detailed information on how “flags” are to be handled.

The Processing Guide is subject to a 30-day comment period ending June 16, 2016.

In addition to feedback on the Processing Guide, HUD also solicits comments on the following topics:

  1. HUD intends to revise 24 CFR 200.210 to state that the regulations are to be supplemented by the Processing Guide and that significant changes to the Proposed Guide will be subject to a 30-day notice and comment period.
  2. HUD also intends to add a definition of “Risk” to the Proposed Rule. HUD did not provide an actual definition, but states that the definition would clarify that the FHA Commissioner must determine whether the Controlling Participant (as defined in the Proposed Rule) could be expected to participate in the Covered Project (as defined in the Proposed Rule) in a manner consistent with furthering the HUD’s purpose of supporting and providing decent, safe and affordable housing for the public.

Ballard Spahr provides comments to HUD’s proposed revisions to RAD documents

Posted in Government-Assisted Housing, Legislative Initiatives, Policy, RAD

As a follow-up to our March 24, 2016 post, on May 16, 2016, Ballard Spahr submitted comments to the U.S. Department of Housing and Urban Development (HUD) on proposed revisions to documents used in the Rental Assistance Demonstration (RAD) Program, including the Housing Assistance Payments (HAP) contracts, RAD Use Agreement, RAD Conversion Commitment, and Financing Plan. The proposed revisions to the RAD documents represent substantive changes, as well as the incorporation of established policies and riders into the body of the documents.  A full copy of Ballard’s comments can be accessed here.

All comments on the revised RAD documents submitted to HUD can be found on the Regulations.gov website.

HUD issues deadlines for RAD closings in CY2016

Posted in Government-Assisted Housing, RAD

Earlier this week HUD issued the following memo, which sets deadlines for RAD closing in CY2016. For efficient closing of RAD transactions in November and December, public housing authorities and developers should remain mindful of these processing deadlines. Planning ahead and incorporating the following issuance dates into operating schedules will help ensure your projects advance in a timely manner:


TO: CHAP Awardees

FROM: Thomas R. Davis, Director, Office of Recapitalization

DATE: May 3, 2016

RE: Schedule Requirements for Closing RAD Transactions in 2016


Schedule Requirements for Closing RAD Transactions in 2016

This memo is to inform you of the Office of Recapitalization’s schedule for processing and closing RAD transactions before the end of the 2016 calendar year. If you intend to close your RAD transaction by November 30, 2016 (in order to have an effective HAP date of December 1, 2016) or by December 31, 2016, you must meet or beat the following schedule. We are providing advance notice of these dates to ensure that you plan accordingly to lead to a successful closing.

To close by 11/30/16

Complete this step on or before

To close by 12/31/16 Complete this step on or before
Upload all required Financing Plan documents* July 1 August 1
Receive a RAD Conversion Commitment (RCC) September 1 October 1
Submit complete closing package September 15 October 15
All RAD documents approved and ready for HUD signatures November 18 December 16

*Note: For FHA-insured financing, the FHA application should also be submitted on or before the date associated with the Financing Plan submission.  Make plans with your FHA lender to keep your financing on track.

Please note that adherence to these dates does not guarantee that HUD will be able to accommodate your November or December closing. We expect those months to be the program’s busiest-to-date.  If transaction volume exceeds our processing capacity, as we expect it will, HUD may prioritize our processing of transaction documents based on several factors, including:

  • The prioritization categories for CHAP processing listed in Section 1.11 of the RAD Notice.
  • Critical deadlines beyond the control of the PHA and its development team. Note that HUD will require documentation of these deadlines when considering this factor.
  • De-prioritization of transactions in which the PHA has needed an extension of the original RCC expiration date.

We strongly recommend working toward closings prior to October to reduce the risk of potential delay due to increased volume in the final months of the year.

If you have any questions regarding these matters, please contact your Transaction Manager.

Thanks,

RAD Team

HUD publishes new Fair Housing guidance on criminal background checks

Posted in Fair Housing, Government-Assisted Housing, Policy

On Monday, HUD published new guidance for landlords conducting criminal background checks as a condition of renting housing.  This guidance is applicable to all providers or operators of housing and real estate related transactions subject to the Fair Housing Act (including private and nonprofit landlords).  Generally, HUD cautions that, while using criminal background checks in screening applicants for housing, landlords must be careful in their use of criminal convictions and must consider them on an individualized basis with a focus on the nature, severity, and recency of the conviction as it relates to the legitimate and substantial interests of the housing provider. Otherwise, landlords may face allegations that their actions had a disparate impact on protected groups.  The use of arrest records as a sole factor for denying tenancy is also prohibited.  Further discussion of the guidance is available on Ballard Spahr’s website.

 

HUD issues PHA Tool for Fair Housing Assessment; Comments due May 23rd

Posted in Fair Housing, Uncategorized

On March 23, 2016, HUD published a notice in the Federal Register to announce the issuance of an Affirmatively Furthering Fair Housing Assessment Tool for Public Housing Authorities (the “PHA Assessment Tool”).

Under the Affirmatively Furthering Fair Housing (“AFFH”) final rule published on July 16, 2015, program participants are required to conduct an Assessment of Fair Housing (“AFH”), which replaces the Analysis of Impediments previously required. To help participants complete the AFH, HUD committed to providing a fair housing assessment tool that could “be used by program participants to evaluate fair housing choice in their jurisdictions, to identify barriers to fair housing choice at the local and regional levels, and to set fair housing goals to overcome such barriers and advance fair housing choice.”

The PHA Assessment Tool is the last of three tools issued by HUD for use when completing the AFH. The other tools are the Local Government Assessment Tool and State and Insular Area Assessment Tool. Local Government Assessment Tool is final, while the State and Insular Area Assessment Tool is currently in its initial comment period. Click here to access additional information about the three tools.

Click here to access the PHA Assessment Tool, which will be used by PHAs undertaking the AHF on their own or when collaborating with other PHAs. A comparison of the PHA Assessment Tool to the final Local Government Assessment Tool, which can be used by PHAs when collaborating with local governments, is available here.

The PHA Assessment Tool will be subject to two comment periods: the current 60-day comment period ending May 23, 2016, and a subsequent 30-day comment period following a second HUD notice once the first round of comments has been considered.

In particular, HUD solicits comments on the following topics:

1) Whether the PHA Assessment Tool’s instructions are effective in explaining the terminology used and in explaining the analysis required by the tool. If commenters believe the instructions could be improved to provide more clarity for PHAs that are inexperienced in using data to assess fair housing issues, please specify ways in which HUD could revise the instructions or give more detailed guidance in the AFFH Rule Guidebook to provide more clarity for inexperienced PHAs about the HUD-provided data and the required analysis.

2) Whether PHAs and Qualified PHAs, expect to collaborate when submitting an AFH and, if so, the types of entities that they expect to collaborate with – i.e., states, local governments, or other PHAs.  In addition, HUD seeks comment on the ways in which the PHA Assessment Tool can facilitate a collaborative AFH by a PHA and one or more Qualified PHAs. How could a joint or regional assessment using the PHA Assessment Tool be structured in a way to fulfill a regional analysis for Qualified PHAs in different types of areas, e.g. within metropolitan statistical areas, or in non-metro areas, including rural areas?

3) Whether adding sections focused on PHA programs will better facilitate the fair housing analysis PHAs must conduct, or, whether these questions should be combined with the “Other Publicly Supported Housing Programs’’ subsection, using a structure similar to what was used in the Local Government Assessment Tool.

4) Whether conducting the new ‘‘Fair Housing Analysis of Rental Housing’’ for all PHAs will result in a more robust analysis of fair housing in the PHA’s service area and region, even for PHAs that only administer public housing. HUD seeks comment on whether this section should apply only to PHAs that administer HCVs and, if so, asks commenters to provide the reasoning.

5) Whether the PHA-specific contributing factors listed in the PHA Assessment Tool, including: restrictions on landlords accepting vouchers, impediments to portability, and policies related to payment standards, FMR, and rent subsidies, are the most relevant contributing factors for PHAs for purposes of conducting a fair housing assessment and setting fair housing goals and priorities. Commenters are asked to state if there are contributing factors that are not relevant for PHAs, and to please identify them and provide an explanation for why they are not relevant to a PHA’s fair housing analysis. Commenters are also asked if additional contributing factors should be included, and to please provide the factor and an explanation of why it is relevant to a PHA’s fair housing analysis.

6) Whether the reordering of sections in the proposed PHA Assessment Tool to list the Disability and Access Analysis section before the Publicly Supported Housing Analysis will better facilitate the PHA’s fair housing analysis.

7) Whether there is an efficient manner which HUD could use to obtain information about each PHA’s service area without causing unnecessary burden. In order to provide data to assist PHAs in conducting their AFH, HUD will need to obtain information about each PHA’s service area in order to provide relevant data to the PHA, but HUD does not currently have data broken down by service area for all PHAs.

8) Whether PHAs have relevant information related to families on their waiting lists to determine how fair housing issues may affect such families, and whether HUD is asking the appropriate questions with regards to this population or are there alternative considerations that PHAs should be asked to consider as part of the analysis.

Beyond these specific areas, HUD also seeks comments on the following general areas:

1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.

2) The accuracy of the agency’s estimate of the burden of the proposed collection of information.

3) Ways to enhance the quality, utility, and clarity of the information to be collected.

4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

HUD soliciting public comments on revised and new RAD forms

Posted in Government-Assisted Housing, Legislative Initiatives, Policy, RAD

On March 17, 2016, HUD published a notice in the Federal Register to announce that  as part of the process to renew the use of the form documents used under both the 1st and 2nd Component of its Rental Assistance Demonstration (RAD) Program, HUD is soliciting public comment on the revised,  and in some cases, newly created, documents used by program participants, including the HAP contracts, Use Agreement, RAD Conversion Commitment, and the Financing Plan submission portal.

RAD was created in order to give public housing authorities (PHAs) a tool to preserve and improve public housing properties and address the $26 billion dollar nationwide backlog of deferred maintenance. RAD also gives owners of three HUD “legacy” programs (Rent Supplement, Rental Assistance Payment, and Section 8 Moderate Rehabilitation) the opportunity to enter into long-term contracts that facilitate the financing of improvements.  Participation in RAD is voluntary. Participating PHAs and Multifamily Owners are required to submit documentation for the purpose of processing and completing the conversion. Through these documents, HUD evaluates whether the PHA or owner has met all of the requirements necessary to complete conversion as outlined in PIH Notice 2012-32 Rev 2 (June 15, 2015) Rental Assistance Demonstration—Final Implementation Notice (RAD Notice).

The public comment period is open for 60 days at which point HUD will review comments and incorporate changes as appropriate. HUD will then re-issue the documents for a 30-day public comment period.  Comments are due Monday, May 16th.

In particular, HUD proposes to make the following changes:

  1. Inclusion of Fair Housing, Civil Rights and Relocation Requirements in RAD Documents:

Consistent with HUD’s RAD Notice, HUD expects that RAD transactions will comply with fair housing, civil rights and relocation requirements and changes to the proposed documents are meant to assist in compliance therewith.   The changes under consideration include the following:

(i) Modifications to the various Housing Assistance Payments contracts to ensure appropriate enumeration of existing fair housing and civil rights requirements and clarification of such requirements;

(ii) Revision and expansion of the FHEO Accessibility and Relocation Plan Checklist to more comprehensively address all federal fair housing and civil rights reviews identified in the RAD Notice (including those derived from the Fair Housing Act, Title VI of the Civil Rights Act of 1964, HUD’s Equal Access Rule, and other authorities) and resident relocation compliance issues;

(iii) Revisions to the RAD Conversion Commitment to add certifications and representations to ensure compliance with fair housing and civil rights requirements until and after the RAD closing.

  1. Clarification of Davis-Bacon Standards – HUD is reviewing the Davis-Bacon Standards in the RCC and HAP Contracts to determine whether they are sufficiently clear or if further clarification is needed.

Form documents on which comment is requested include:

Ballard Spahr will be undertaking a review of the proposed forms and anticipates submitting comments with respect thereto.  We welcome thoughts of our clients and friends who may be interested in compiling joint comments.

Comments can be submitted electronically or to the following address:

Regulations Division
Office of General Counsel
U.S. Department of Housing and Urban Development
451 7th Street SW., Room 10276
Washington, DC 20410–0500

HUD publishes state tool for AFFH

Posted in Fair Housing, Government-Assisted Housing, Policy
Condominiums

This morning, HUD is scheduled to publish its proposed tool for affirmatively furthering fair housing (AFFH) for use by states and insular areas as they implement the new AFFH rule.  Public comment is solicited for 60 days.  This tool is separate from the tool to be used by participating jurisdictions, about which Ballard Spahr previously posted.

Ballard Spahr is reviewing the proposed rule and continues to monitor developments in fair housing.

Ballard Spahr provides comments on HUD’s Advance Notice of Proposed Rulemaking on Over-Income Families in Public Housing

Posted in Government-Assisted Housing, Legislative Initiatives, Policy, Public Housing

On March 4, 2016, Ballard Spahr submitted comments to the U.S. Department of Housing and Urban Development (HUD) Advance Notice of Proposed Rulemaking (ANPR) regarding over-income families in public housing. The comments addressed the importance of retaining existing public housing authority (PHA) regulatory discretion, inconsistency between the ANPR and other HUD program initiatives, benefits of over-income families provide to PHAs, and other public policy concerns. A full copy of Ballard’s comments can be accessed here. A total of 127 comments have been submitted to date. HUD recently extended the comment period until April 11, 2016.