Major Affordable Housing Legislation Introduced in the Senate

person A.J. Johnson today 09/11/2021

Senator Ron Wyden (D-OR) has introduced the Decent, Affordable, Safe Housing for All (DASH) Act, legislation to make a generational investment to house all people experiencing homelessness, tackle the housing affordability crisis, and expand homeownership opportunities for young people by creating a new down payment tax credit for first-time homebuyers. The Act also institutes important reforms to local zoning and housing development to encourage a re-birth in the development of affordable housing. Title II of the DASH Act implements innovative and impactful tax policy to invest in homeownership more wisely, rent support for low-income families and construction of affordable housing nationwide.

One goal of the Act is to end child and family homelessness within five years by holding states accountable for wisely using the funds provided by the legislation and ensuring that public housing agencies (PHAs) continue to improve in administration of the voucher program. If fully enacted, the DASH Act could result in over three million additional homes being built in the United States in the next ten years.

A significant number of the Act’s elements relate to the provision of affordable rental housing, including:

  • $10 billion for the Housing Trust Fund (HTF). This will be provided to states over a ten-year period to allow for the development of deeply affordable housing. Eligible activities will be land acquisition and the acquisition, rehabilitation or development of rental housing that prioritizes housing for people experiencing homelessness. The funding will be allocated to the states through the current HTF formula.
  • Incentives to States: The DASH Act will provide investment in methods to increase production of affordable housing nationwide. Any jurisdiction that changes its zoning and land use practices after enactment of the legislation will become eligible for a grant award depending on the size of the jurisdiction. The funds could be used for any activity that is eligible under the Community Development Block Grant (CDBG) program. Jurisdictions that do not pass policies to increase affordable housing or that implement restrictive policies will not be eligible for the grant program.
  • Rural Housing Reinvestment: The DASH Act invests in programs to increase and preserve the supply of available and affordable rental housing for low-income Americans living in rural areas. This will include additional funding for the Rural Development Section 515 program.
  • Expansion of the Low-Income Housing Tax Credit (LIHTC): A major element of the DASH Act is expansion and improvement the LIHTC program and credits for additional affordable housing. These provisions are:
    • Extend the Deadline for Rehabilitation Expenditures: Would allow up to three years (increased from the current two years), following a credit allocation, to make rehab expenditures for a LIHTC project. This would apply to buildings receiving an allocation after December 31, 2017 and before January 1, 2023.
    • Extend the Deadline for Basis Expenditures: Would allow up to three years (compared to two under present law), following an allocation of credits, for a LIHTC building to be placed in service. The provision would also allow 24-months to meet the 10% test after an allocation of credits vs the 12-month period under current law. This would apply to buildings receiving an allocation after December 31, 2017 and before January 1, 2023.
    • Relax the "50% Test" for Two Years: Under current law, tax-exempt bonds must comprise 50% of the financing for an affordable housing project in order to receive a 4% LIHTC allocation for the entire project. This provision temporarily reduces the 50% test to 25% and will be effective for buildings financed by an obligation of bonds issued in calendar years 2021, 2022, 2023, and 2024, and placed in service in taxable years after December 31, 2021.
    • Expand the 9% Credit: The Act would make permanent the 12.5% expansion in the 9% credit passed in 2018 and increase the 9% credit by 50% on top of this.
    • 50% Basis Boost for Projects Serving Extremely Low-Income Households and the 10% Set-Aside: This 50% boost in eligible basis would be available for buildings that designate at least 20% of occupied units for extremely low-income tenants and limit rent to no more than 30% of the greater of (1) 30% of area median income or (2) the federal poverty line.
    • Inclusion of Indian Areas as Difficult Development Areas: The Act would modify the definition of a Difficult Development Area (DDA) to automatically include any project located in an Indian area, making such projects eligible for the 30% Basis Boost. This provision would be limited to projects that were assisted for financed under the Native American Housing Assistance & Self-Determination Act of 1996, or the project sponsor is a qualifying Indian tribe.
    • Inclusion of Rural Areas as DDAs: HFAs would be able to provide up to a 30% basis boost to properties in rural areas if needed for financial feasibility.
    • Increase in Credit for Bond-Financed Projects Designated by Housing Credit Agencies: HFAs would have discretion to provide up to a 30% basis boost for tax-exempt bond financed projects if needed for financial feasibility. This benefit is currently available only for 9% deals.
    • Repeal Qualified Contract Purchase Provision: This provision would eliminate the ability of owners of projects allocated credits after 2021 to request a qualified contract purchase. Owners of projects that received credits prior to 2021 and who submit a qualified contract request after the date of the law’s enactment would have to submit the request based on the fair market value of the property - not the current QC formula.
    • Modification and Clarification of Rights Relating to Building Purchase: The Act would (a) clarify that the existing right of first refusal (ROFR) may be exercised at the minimum purchase price and converts the right to an option. I.e., no third party offer of purchase would be required in order for the ROFR to be exercised.
    • Prohibition of Local Approval and Contribution Requirements: This provision removes the requirement for HFAs to notify local or elected officials about the location of a proposed project. It also bars a state’s qualified allocation plan from prioritizing local support (including contributions) or opposition relating to an application for a LIHTC project.
    • Adjustment of Credit to Provide Relief from COVID-19: Many projects have suffered construction and lease-up delays from COVID-19. This provision would allow taxpayers to elect to receive a first-year credit equal to 150% of the allowable amount, to be reduced pro rata in subsequent years (there would be no increase in the total credits). Eligible buildings are those that have (1) a first-year credit period ending between July 1, 2020 and July 1, 2022 and (2) pandemic related construction or leasing delays that have occurred since January 31, 2020 (requiring certification by the taxpayer to the HFA).
    • Credit for Supportive Services: This would provide a 50% basis boost to LIHTC projects that dedicate space to providing qualifying supportive services. This would include health services, coordination of tenant benefits, job training, financial counseling, resident engagement services, or services aimed at helping tenants retain permanent housing and promoting economic self-sufficiency.
    • Study of Tax Incentives for the Conversion of Commercial Property to Affordable Housing: This would require the Department of Treasury, HUD, Department of Agriculture, and the Office of Management & Budget (OMB) to produce a cost-benefit analysis of providing tax incentives to taxpayers who sell vacant or under-utilized commercial real estate to State, local, or tribal housing finance agencies for conversion to affordable rental housing.
    • Renter’s Tax Credit: The Renter’s Tax Credit establishes a refundable credit (under new tax code §36C) claimable by taxpayers who own and operate affordable housing. Eligible tenants will be those with gross monthly household incomes at or below 30% of area median or at or below the federal poverty line, whichever amount is greater. This matches the HUD extremely low-income level. For each eligible unit, the credit will be 110% (up to 120% for low-poverty neighborhoods) of the difference between market rent and 30% of a tenant’s gross family income. The rent will include a utility allowance. The goal of this new tax credit program is to ensure that extremely low-income renters do not have to pay more than 30% of their gross monthly income in rent and utilities, while providing owners of rental housing a financial incentive to participate. The total annual credit for a taxpayer equals the number of months of reduced rent for a given taxable year times the number of eligible units, summed across all the buildings that a taxpayer owns. The credit will be available to both for-profit and non-profit owners and is a fully refundable credit. Recertifications will be required in order to determine adjustments to rent. Taxpayers will not be permitted to evict other tenants in order to rent to credit-eligible tenants. Assume market rent of $1,500. Assume a family of four with an income of $25,000. 30% of the family’s income on a monthly basis is $625. The difference between the family income and the market rent is $875. 110% of $875 is $962.50. In return for holding the tenant’s gross rent to no more than $625, the taxpayer would receive an annual tax credit of $11,550 ($12,600 in a low-poverty neighborhood) if the unit met the rent requirements for all 12-months of a year. This credit would be available to all units that meet the affordability test. Credits will be allocated based on population - in the same manner as the LIHTC.  The amount will be $36.75 per capita in 2023, with a small state minimum. Credits will be allocated competitively and the credit period will be 15 years, with credits claimed annually. The bill requires reporting and compliance monitoring for taxpayers and states. The IRS will have the authority to develop coordination rules with LIHTC properties.
  • Middle Income Housing Tax Credit (MIHTC): A new Middle Income Tax Credit would pick up where the LIHTC program ends. It would provide a tax credit to developers to provide affordable housing to tenants between 60% and 100% of area median income. Credits would be allocated based on population at $1.00 per capital with a $1.4 million small state minimum. Rural areas would receive an extra 5 cents per capita. Credits would be allocated by HFAs through a competitive process and would be provided over a 15-year compliance period. The credit amount would equal 50% of the present value of the qualifying costs, or 5% per year on an undiscounted basis. Only the amount of credit needed for project feasibility would be allocated.
    • To qualify for the credit, a rental property would need to meet two affordability standards: (1) a property would have to include a minimum percentage of affordable units; and (2) rents for those units could not exceed maximum amounts based on the average incomes in the area. Specifically, at least 60% of a project’s units must be occupied by individuals with incomes of 100% or less of AMGI. Tenant rents may not exceed 30% of 100% of AMGI. The affordability restrictions would remain in place for at least 15 years after the compliance period.
    • The MIHTC may be used in conjunction with the LIHTC. However, taxpayers will have to make an irrevocable building-by-building election to use one credit or the other. The eligible basis for using the LIHTC cannot include the MIHTC basis and vice versa. The provision allows the 5% MIHTC credit to be used in conjunction with the 9% LIHTC, and a 2% MIHTC credit to be used with a 4% LIHTC.
    • Unused MIHTC credits from a state’s allocation would be added to the state’s existing LIHTC allocation after one year. After a second year, unused credit will go to a national pool.

Obviously, this is comprehensive legislation, and if passed, it would create a seismic shift in the affordable housing world. We’ll keep an eye on it as it moves through Congress and, along with the rest of the affordable housing industry, will keep our fingers crossed.

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

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

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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.

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