Recent Court Decision Confirms that a Right of First Refusal is Not an Option to Purchase

person A.J. Johnson today 10/05/2020

A recent New York court case has affirmed that a non-profit’s Right of First Refusal ("ROFR") is not an option to purchase a Low-Income Housing Tax Credit (LIHTC) property.

The Case

Riseboro Community Partnership, Inc., formerly known as Ridgewood Bushwick Senior Citizens Council, Inc., v. SunAmerica Housing Fund (SHF) 682, a Nevada Limited Partnership; SLP Housing I LLC; and 420 Stockholm Street Associates, LP

Introduction to the Case

  1. The case is a basic disagreement over the meaning of a "right of first refusal" ("ROFR") held by the Plaintiff to purchase an affordable housing property in Brooklyn, NY. The property was developed under the LIHTC program.
  2. The court limited all parties' initial briefing to the issue of the meaning of the ROFR granted to Plaintiff.
  3. The court held that the Plaintiff’s ROFR operates by its definition under New York common law and is not an option to purchase the subject property.

Background

  1. The defendant (420 Stockholm Street Associates, LP) is a limited partnership formed under the laws of the State of New York in 1998.
  2. Riseboro, a non-profit entity, is not part of the partnership, but the agreement governing the Partnership grants Riseboro the ROFR central to the dispute.
  3. The LIHTC program makes clear, in the provision central to this dispute, that a taxpayer will not be deprived of its tax benefits merely by a non-profit entity holding a "right of 1st refusal" to purchase an affordable housing property. The exact wording in §42 (i)(7) is:
    1. No federal income tax benefit shall fail to be allowable to the taxpayer with respect to any qualified low-income building merely by reason of a right of 1st refusal held by … a qualified nonprofit organization…to purchase the property after the close of the compliance period for a price which is not less than … an amount equal to the sum of -
      1. The principal amount of outstanding indebtedness secured by the building … and
      1. All Federal, State, and local taxes attributable to such sale.
  4. The minimum purchase price arrived at using the formula stated above will very likely be less than market value.
  5. Section 42(i)(7) recognizes the possibility - and, it is only a possibility - that were a nonprofit entity to hold a ROFR to purchase an affordable housing property at below-market value, the IRS could deem the non-profit entity the "true owner" of the property under the so-called "economic substance doctrine." If the IRS were to conclude that the non-profit ROFR-holder was the "true owner" of the property, it could limit, disallow, or redirect the flow of LIHTC Program tax credits.
  6. If the flow of tax credits were to dry up, this would remove the incentive to for-profit entities investing in affordable housing. Section 42 (i)(7) protects against this result.
  7. At the core of the dispute is a section of the 1999 Partnership Agreement, which states: "Right of First Refusal. On and after the end of the 15 year Compliance Period, [Riseboro] or its designee, if it is at that time a qualified nonprofit corporation, shall have a right of first refusal to purchase the Apartment Complex for the price equal to the sum of:
    1. The principal amount of outstanding indebtedness secured by the building (other than indebtedness incurred within the 5 years ending on the date of the sale;
    1. All Federal, State, and local taxes attributable to such sale and to any amounts paid pursuant to subsection (iii) hereof; and
    1. Any amounts of a Tax Credit shortfall which have not been paid.
  8. The 1999 Agreement states that it "shall be construed and enforced in accordance with the law of the State [of New York].

The Litigation

  1. In November 2015, after the Compliance Period expired, Riseboro notified the General Partner that it would soon exercise the ROFR.
  2. In response, the Partners asserted that because investor consent was required for the Partnership to sell the Apartment Complex and the Partnership was not interested in selling, Riseboro could not exercise its ROFR.
  3. Three years later, in February 2018, Stockholm sought to transfer ownership of the complex to Riseboro, its corporate parent, under the partnership agreement but met with the same result: counsel for SHF and SLP indicated that their clients did not consent to sell the property. - The litigation followed.

Discussion

  1. Riseboro asked the court to hold that there were no conditions precedent to it exercising its ROFR, and that it may exercise its ROFR at any time after the Compliance Period has ended. In other words, Riseboro contended that its ROFR is, in fact, an option to purchase.
  2. The defendants countered that Riseboro may exercise its ROFR only after two conditions are satisfied: (1) the Partnership must be willing to sell; and (2)a third party must have made a bonafide offer to buy.
  3. The language in the partnership agreement was "unambiguous," and the language of a contract is not made ambiguous simply because the parties urge different interpretations.
  4. Under New York law, contracts are "construed in accord with the parties’ intent," and "the best evidence of what the parties to a written agreement intend is what they say in their writing," which here is the 1999 Partnership Agreement.

New York Law

  1. "Right of first refusal" is a legal term of art with a well-established definition in New York. A ROFR "requires an owner, when and if he decides to sell, to offer the property first to the party holding the preemptive right so that he may meet a third-party offer or but the property at some other price set by a previously stipulated method."
  2. A "ROFR does not give its holder the power to compel an unwilling owner to sell." Rather, a ROFR restricts "the power of one party to sell without first making an offer of purchase to the other party upon the happening of a contingency: the owner’s decision to sell to a third party."
  3. A ROFR thus "binds the party who desires to sell not to sell without first giving the other party the opportunity to purchase the property at a specified price."
  4. A ROFR stands in contrast to an "option" to purchase, which may be triggered unilaterally, even against the owner’s unwillingness to sell at the time the option-holder invokes the option.
  5. The court was not persuaded by the Riseboro argument that they had a unilateral right - or "option" - to purchase the property regardless of the owner’s willingness to sell or the availability of a good-faith third party purchaser.

The Context of §42 and Other Terms in the 1999 Agreement

  1. "Right of first refusal" is a common-law term, and Congress is "presumed unless the statute otherwise dictates" to have incorporated its common-law meaning.
  2. The court stated - "It is a settled principle of interpretation that absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses."
  3. The presumption that Congress incorporated the common law meaning of ROFR is confirmed by the legislative history of §42(i)(7). Where this section refers to "right of first refusal," a pre-enactment draft of the bill originally used the term "option." The House Report on the law makes clear that when Congress made this change, it grasped the difference between "option" and "right of first refusal," stating:
    1. The bill provides that any determination as to whether Federal income tax benefits are allowable to a taxpayer for a qualified low-income building shall be made without regard to whether the tenants are given the right of first refusal … to purchase the building, for a minimum purchase price, should the owner decide to sell (at the end of the compliance period).
  4. H.R. Rep. No. 101-247 supports the conclusion that Congress "understood that a right of first refusal - in contrast to an option to purchase - could not be exercised unilaterally by the holder." This change and the explanation given in the House Report is a clear indication, not "shoddy evidence" as Riseboro suggested, that §42(i)(7) refers to common law ROFR.
  5. Riseboro also took the position that no third party in their right mind would go through the process of making an offer to purchase knowing that an entity with a ROFR purchase price set below fair market value will very likely exercise its superior purchase right.
  6. The court agreed that Riseboro may be right that a third party offer is unlikely, but the conclusion that this leads to a senseless statute or contract provision is wrong. Regardless of whether a third party offer materializes, the fact that Riseboro holds a ROFR secures its right to purchase the property at the stated price. The partnership need not wait for a third party offer before it offers the property to Riseboro at the stipulated price.
  7. In the event the Partnership attempts a sale to a third-party without first offering the property to Riseboro, the ROFR provides a contractual basis for Riseboro to defeat such a sale.

Conclusion

The partners granted Riseboro a right of first refusal, not an option. This case is another strong indicator that unless a partnership attempts to sell a LIHTC property to a third party purchaser, a non-profit with a ROFR has no right to invoke the ROFR and force a sale.

Latest Articles

Understanding Tariffs and Their Impact on Construction Costs

What Are Tariffs? A tariff is simply a tax imposed on imported goods. When products like building materials enter U.S. ports, paying the applicable tariff is a standard part of the customs process. Historical Context Tariffs have deep roots in American history. From the colonial era through the early 1900s, they served as the federal government s primary revenue source. They were relatively straightforward to enforce even before modern technology, as customs officers could inspect incoming shipments at ports and collect the appropriate fees. The federal government s limited taxing authority under the Constitution meant that a modern income tax was not legally permissible until the 16th Amendment was enacted in 1913. The Decline of Tariffs Despite their historical importance, tariffs have several inherent problems that led to their declining use over the past century: They disadvantaged U.S. agricultural interests and exporters as other countries implemented retaliatory trade barriers. The tax burden fell disproportionately on lower-income individuals who spend more of their income on basic necessities. They couldn t generate sufficient revenue to fund modern government operations. When the global economy faltered in 1930, many nations, including the U.S., implemented protective tariffs with the Smoot-Hawley Act. Most economists view this wave of protectionism as a contributing factor to the severity of the Great Depression. Learning from this experience, the U.S. and other advanced economies gradually reduced trade barriers during the postwar period to foster economic cooperation and peace. Current Tariff Landscape Even during periods of free trade enthusiasm, tariffs never disappeared entirely. They remained relatively low in recent years, dropping to 1.5% in 2017 after decades of bipartisan efforts to establish global trade agreements. The Trump administration increased rates to approximately 3% during his previous term, which President Biden largely maintained. According to the Yale Budget Lab, the Trump administration s announced policies would raise the average tariff to 22.5% higher than during the Smoot-Hawley era and roughly equivalent to 1909 levels. Implementation Authority The scale of newly announced tariffs is significantly larger than previous ones. They affect nearly all goods from every country worldwide and invoke emergency authority not previously used for this purpose. Tariffs Impact on Construction Costs Tariffs increase construction costs through several key mechanisms: Direct price increases on imported construction materials like steel, aluminum, lumber, and other building products. These higher costs are typically passed along to developers and ultimately to end consumers. The specific impact depends on several factors: Which materials are targeted The tariff rate percentages Availability of domestic alternatives Proportion of imported versus domestic materials used The recent tariffs on imports from China (20%), Mexico, and Canada (25%) have significant implications for construction. According to the National Association of Home Builders, these tariffs could increase builder costs by approximately $7,500 to $10,000 per home for residential construction. This impact is substantial because approximately 7% of all goods used in new residential construction are imported. Critical materials like softwood lumber come predominantly from Canada (72% of imports), while gypsum for drywall is mainly sourced from Mexico (74% of imports). Multifamily Construction Impact For multifamily construction specifically, with 46% of materials sourced from these countries and 35-50% of project costs tied to finished materials, tariffs could increase material costs by 7.5%, potentially raising total construction budgets by 3-4%. Broader Effects Beyond core construction materials, reciprocal tariffs may also influence other building-related imports, such as carpeting, electrical outlets, security equipment, furniture, and tools. Projects that have already been awarded but are not yet started are likely to experience the most significant impact. Industry forecasts suggest the construction industry will feel the brunt of tariff policy changes in late 2025 and early 2026. Meanwhile, due to tariff-related inflation concerns, the Federal Reserve is expected to maintain stable interest rates through most of 2025. Recent Developments Homebuilders have been relieved, as Canada and Mexico were exempted from the latest round of tariffs, protecting key lumber and drywall component imports. Additionally, a carveout exists for lumber and copper imports. These tariff developments are challenging the U.S. housing market, which is already struggling with supply constraints and affordability issues. Developers with affordable multifamily housing projects in the pipeline or underway but for which materials have not yet been purchased should prepare for these possible increases. Developers facing this uncertainty should take a proactive, strategic approach. Here are some of the steps they should consider: 1. Lock in Pricing Where Possible Negotiate Early Procurement Contracts: Secure pricing and delivery timelines now for materials that may be subject to tariffs. Bulk Purchasing: If financially feasible and storage is available, purchase critical materials before the tariff is implemented. 2. Revisit and Update Budgets Include Contingency Allowances: Adjust budgets to account for a potential spike in material costs (e.g., steel, aluminum, electrical components). Run Revised Pro Formas: Model project feasibility under different tariff scenarios to understand the margin of financial risk. 3. Communicate with Key Stakeholders Inform Lenders and Syndicators: Ensure your financial partners know potential cost escalations and any resulting impact on project viability or timelines. Coordinate with HFAs and Local Agencies: If the deal includes LIHTCs or public funding, discuss possible adjustments or relief options (e.g., basis boosts, revised gap financing). 4. Evaluate Alternative Materials and Suppliers Source Domestic Alternatives: Tariffs often target imported materials. Switching to local or tariff-exempt sources could mitigate cost hikes. Value Engineering: Reassess design specs to identify non-critical elements where substitutions could reduce costs. 5. Monitor Policy and Industry Updates Stay Informed: Watch for updates on tariff decisions and industry responses through trade associations (e.g., NAHB, NMHC). Engage in Advocacy: Support efforts to exempt affordable housing materials from tariffs or seek policy carve-outs. 6. Build Schedule Flexibility Buffer Time for Delays: Tariffs often disrupt supply chains, so build in extra time for procurement and delivery to avoid construction slowdowns. 7. Document Impacts Track Cost Changes: Keep records showing cost increases due to tariffs this can be useful when requesting additional funding or extensions from oversight bodies. Being proactive can help developers manage risk rather than be blindsided by rising costs. In this environment, a smart developer remains nimble, communicates clearly, and plans for the worst while hoping for the best.

A. J. Johnson Partners with Mid-Atlantic AHMA for Training on Affordable Housing - May 2025

In May 2025, A. J. Johnson will partner with the MidAtlantic Affordable Housing Management Association for four live webinar training sessions for real estate professionals, particularly those in the affordable multifamily housing field. The following sessions will be presented: May 20: Acquisition/Rehab, Tenant Selection Plans & Affirmative Fair Housing Marketing Plans The complexities of affordable housing development don t stop at financing. When acquisition, rehabilitation, and layered funding programs collide, the stakes increase. Join industry expert A. J. Johnson for a practical and timely webinar on compliance pitfalls and planning strategies that can make or break your LIHTC project. This fast-paced session will break down the following: Acquisition-Rehab LIHTC Projects: How IRS rules impact "placed in service dates, acquisition credits, and meeting the 120-day qualification rule. The Available Unit Rule (AUR): Why this often-overlooked rule can lead to credit loss even on properties that no longer recertify. Tenant Selection Plans (TSPs): What every property manager must know about layered program requirements, lottery procedures, and legal screening standards. Affirmative Fair Housing Marketing Plans (AFHMPs): How to structure your outreach to comply with HUD requirements and avoid costly fair housing violations. Whether you're a developer, property manager, or compliance officer, this training will give you actionable strategies to keep your project on track and in full regulatory compliance. Who Should Attend - LIHTC developers, compliance specialists, property managers, syndicators, and housing agency staff responsible for acquisition, rehabilitation, and oversight of layered programs. May 21: HOTMA - Update on HUD Requirements On January 9, 2023, HUD published a final rule implementing The Housing Opportunity Through Modernization Act (HOTMA), signed into law on July 29, 2016. This final rule was published in the Federal Register on February 14, 2023, and has yet to become effective for HUD programs. Virtually all HUD programs are impacted by the rule, as are the Low-Income Housing Tax Credit (LIHTC) Program and the Rural Development Section 515 Program. Since publishing the final rule in February 2023, HUD has provided additional guidance in implementing the rule, including extensions regarding implementation. This three-hour training will explain any updated HUD guidance and will cover the following areas: Definitional changes relating to earned and unearned income, non-recurring income, and foster children; Revised Income Exclusions; New requirements relative to Student Financial Assistance; Changes to the HUD permitted deductions from gross income, including a full review of the new "hardship exemptions; Brand new rules regarding assets; New Interim Recertification requirements; and The new definition of "annual income. May 22: Basic LIHTC Compliance This training is designed primarily for site and investment asset managers responsible for site-related asset management. It is especially beneficial to those managers who are relatively inexperienced in the tax credit program. It covers all aspects of credit related to on-site management, including the applicant interview process, determining resident eligibility (income and student issues), handling recertification, setting rents - including a full review of utility allowance requirements - lease issues, and the importance of maintaining the property. The training includes problems and questions to ensure students fully comprehend the material. May 28: Dealing with Income and Assets in Affordable Multifamily Housing - Course Overview This live webinar provides concentrated instruction on the required methodology for calculating and verifying income and determining the value of assets and income generated by those assets. The first section of the course involves a comprehensive discussion of employment income, military pay, pensions/social security, self-employment income, and child support. It concludes with workshop problems designed to test what the student has learned during the discussion phase of the training and serve to reinforce HUD-required techniques for determining income. The second component of the training focuses on a detailed discussion of requirements related to determining asset value and income. It applies to all federal housing programs, including the low-income housing tax credit, tax-exempt bonds, Section 8, Section 515, and HOME. Multiple types of assets are covered in terms of what constitutes an asset and how they must be verified. This section also concludes with problems designed to test the student s understanding of the basic requirements relative to assets. These sessions are part of a year-long collaboration between A. J. Johnson and MidAtlantic AHMA and are designed to provide affordable housing professionals with the knowledge needed to manage the complex requirements of the various agencies overseeing these programs effectively. Individuals or organizations interested in any (or all) training sessions may register by visiting either www.ajjcs.net or https://www.mid-atlanticahma.org.

Crime-Free Ordinances: When Local Laws Conflict with Federal Fair Housing Protections

In August 2024, the Civil Rights Division of the Department of Justice issued a critical warning: municipal "crime-free rental housing and "nuisance property ordinances may violate federal fair housing laws. These ordinances effective in nearly 2,000 cities across 48 states until recently place landlords in a precarious position. While intended to reduce crime and maintain neighborhood stability, these measures often result in unintended discrimination and can expose landlords to significant legal liability. Notable Legal Cases Several landmark cases have established important precedents regarding crime-free ordinances: United States v. City of Hesperia (2023) In a groundbreaking case, the Justice Department secured a landmark agreement with the City of Hesperia, California, and the San Bernardino County Sheriff s Department to resolve racial and national origin discrimination allegations in their "crime-free rental housing program. The consent order required the city to completely repeal its crime-free program and ordinance marking the first resolution demanding the complete end of such a program. The settlement included a $950,000 payout, with $670,000 allocated to compensate individuals harmed by the program. The Justice Department alleged that the city and sheriff s department engaged in a pattern of discrimination against Black and Latinx individuals in violation of the Fair Housing Act and Title VI of the Civil Rights Act of 1964 through the enforcement of their crime-free rental housing program. Briggs v. Norristown After experiencing the harmful impacts of a nuisance ordinance, Ms. Briggs, with support from the American Civil Liberties Union, filed a lawsuit against the City of Norristown. The Department of Housing and Urban Development (HUD) filed a complaint stating that the ordinance violated the Fair Housing Act based on its impact on women experiencing domestic violence. The case resulted in a settlement requiring Norristown to repeal its ordinances, and subsequently, Pennsylvania passed legislation banning localities from creating these types of ordinances. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (2015) In this influential Supreme Court case, the Court held that disparate impact claims are cognizable under the Fair Housing Act. This crucial decision established that housing policies with discriminatory effects even without discriminatory intent could violate the FHA. The ruling is particularly relevant to crime-free ordinances, which often produce disparate impacts on protected classes. The Legal Conflict: Federal Protections vs. Local Ordinances Landlords face a troubling dilemma: follow local crime-free ordinances and risk violating federal law, or disregard local requirements and face municipal penalties. This conflict stems from the fact that these ordinances may violate four major federal laws: 1. The Fair Housing Act Crime-free ordinances often have a disproportionate impact on protected classes. For example: When these ordinances require eviction based on arrests rather than convictions, they disproportionately affect Black and Hispanic tenants, who statistically face higher rates of police interaction regardless of criminal activity. Blanket policies requiring eviction of an entire household due to one member s criminal activity can discriminate against families with children, female-headed households, and certain cultural groups where extended family living arrangements are common. 2. Title VI of the Civil Rights Act of 1964 Title VI prohibits discrimination in programs receiving federal funds. When municipalities with crime-free ordinances receive federal housing funds, they may violate Title VI if: Their ordinances have disparate impacts on protected classes Implementation decisions are influenced by discriminatory intent or stereotypes about certain neighborhoods or demographic groups 3. The Americans with Disabilities Act (ADA) Crime-free ordinances may discriminate against individuals with disabilities in several ways: Automatic eviction for behavior related to mental health conditions without consideration of reasonable accommodations Policies that penalize multiple emergency service calls, which may disproportionately impact those with chronic health conditions requiring frequent medical assistance Exclusions of individuals with past substance use disorder convictions, despite recovery and treatment 4. The Violence Against Women Act (VAWA) VAWA specifically protects victims of domestic violence, dating violence, sexual assault, and stalking from housing discrimination. Crime-free ordinances often violate these protections by: Requiring eviction when police are called to a property multiple times, discouraging victims from seeking help Failing to distinguish between perpetrators and victims when criminal activity occurs Treating domestic disturbances as "nuisances rather than recognizing them as situations where victims need protection Problematic Practices in Crime-Free Ordinances Collective Punishment: Holding Entire Households Accountable One of the most troubling aspects of many crime-free ordinances is the requirement to evict entire households based on one individual s actions. This approach: Punishes innocent family members who had no knowledge of or participation in criminal activity Creates homelessness risks for vulnerable household members, including children, elderly relatives, and individuals with disabilities Disproportionately impacts communities where multi-generational or extended family living arrangements are cultural norms. Blanket Exclusions Based on Criminal Records Many ordinances include overly broad exclusions for individuals with criminal records: Lifetime bans for certain offenses, regardless of rehabilitation or time elapsed Failure to consider the nature, severity, or relevance of the criminal conduct to tenant suitability No individualized assessment of actual risk to property or other tenants Exclusion Based on Arrests Rather Than Convictions Some ordinances allow or require action against tenants based merely on arrests: Violates the presumption of innocence It has a disparate impact on communities of color, which experience higher rates of arrests that do not lead to convictions Creates housing instability based on unproven allegations rather than established facts Automatic Exclusion for Any Criminal Conviction Overly broad policies that automatically deny housing based on any criminal history: Fail to distinguish between violent crimes and minor offenses Ignore evidence of rehabilitation and the age of convictions Create permanent barriers to housing for individuals who have served their sentences and are working to reintegrate into society. Penalizing Emergency Service Calls Particularly problematic are provisions that treat emergency calls as "nuisances : Discourages tenants from seeking emergency medical assistance Forces vulnerable individuals to choose between needed help and keeping their housing Creates dangerous situations where tenants delay calling for assistance during genuine emergencies. Punishing Victims of Domestic Violence Perhaps most concerning is how these ordinances often penalize victims: Treating domestic violence incidents as "nuisance activities requiring eviction Failing to distinguish between calls made by victims versus perpetrators Creating a situation where victims must choose between enduring abuse in silence or risking homelessness. Legal Protections and Ongoing Developments The legal landscape around crime-free ordinances continues to evolve. In states like Illinois, legislation has been enacted to protect survivors of domestic or sexual violence and individuals with disabilities from being penalized due to calls to police for assistance. The Illinois Department of Human Rights and the UIC Law School Fair Housing Legal Support Center and Clinic have developed a guidebook addressing the fair housing implications of nuisance and crime-free ordinances. In 2024, additional cases have further clarified the legal boundaries of these ordinances: A case against a municipality alleged violations of both the Americans with Disabilities Act and Fair Housing Act for enforcing crime-free housing ordinances that denied tenants with mental health disabilities equal access to emergency response services. The consent decree required the municipality to revise its program rules and enforcement practices and adopt non-discrimination policies. The Department of Justice has increased enforcement actions against localities with discriminatory housing policies, particularly those that disproportionately affect racial minorities, women, and people with disabilities. Recommendations for Landlords If your municipality has implemented a crime-free ordinance that may conflict with federal protections, consider the following steps: 1. Review your lease agreements and policies to identify provisions that may violate federal law, even if required by local ordinance. 2. Consult with a housing attorney familiar with fair housing law and local regulations to understand your specific obligations and risks. 3. Implement individualized assessments rather than blanket policies when evaluating potential tenants with criminal histories. 4. Document all housing decisions with clear, non-discriminatory business justifications. 5. Create explicit exceptions in your policies for domestic violence victims and emergency service calls. 6. Engage with local government by attending city council meetings and advocating for amendments to problematic ordinances. 7. Join or form landlord associations to collectively address concerns with local officials. 8. If necessary, consider seeking a declaratory judgment in court to resolve the conflict between federal and local requirements. 9. Stay informed about new legal developments in this rapidly evolving area of law. Navigating this legal minefield is challenging; however, landlords should prioritize compliance with federal civil rights laws. When local ordinances and federal protections conflict, federal law generally prevails. By taking proactive steps to ensure fair housing practices, landlords can protect themselves from liability while also supporting safe, stable housing for all community members.

HUD Publishes 2025 Income Limits

On April 1, 2025, HUD published the 2025 income limits for HUD programs and the Low-Income Housing Tax Credit and Tax-Exempt Bond programs. The limits are effective on April 1, 2025. The limits for the LIHTC and Bond projects are published separately from those for HUD programs. For better understanding, LIHTC and Bond properties operate under the Multifamily Tax Subsidy Project (MTSP) limits. These properties are 'held harmless' from income limit (and therefore rent) reductions. This means that these properties may use the highest income limits for resident qualification and rent calculation since the project has been in service. However, it's important to note that HUD program income limits are not 'held harmless '. HUD publishes the 50% and 60% MTSP limits alongside the Average Income (AI) limits, which are set at 20%, 30%, 40%, 50%, 60%, 70%, and 80%. Projects that began service before 2009 may utilize the HERA Special Income Limits in areas where HUD has published such limits. Projects placed in service after 2008 cannot use the HERA Special Limits. Projects in rural areas not financed by tax-exempt bonds can use the higher MTSP limits or the National Non-Metropolitan Income Limits (NNMIL). It is important to note that for 2025, HUD has made changes to the definitions of geographic areas as determined by the Office of Management and Budget (OMB). The counties or towns within certain metropolitan areas may have changed. Owners and managers should consult the HUD Area Definition Report for a list of their areas and their components. The link to the Area Definition Report can be found on the website provided below. Owners of LIHTC projects may rely on the 2024 income limits for all purposes for 45 days after the effective date of the newly issued limits, which ends on May 16, 2025. The limits for HUD programs may be found at www.huduser.gov/portal/datasets/il.html. The limits for LIHTC and Bond programs may be found at www.huduser.gov/portal/datasets/mtsp.html.

Want news delivered to your inbox?

Subscribe to our news articles to stay up to date.

We care about the protection of your data. Read our Privacy Policy.