News

Census Bureau Report Shows an Aging and More Diverse Population

On June 30, 2022, the U.S. Census Bureau released the 2021 Population Estimates by Age, Sex, Race, and Hispanic Origin. The report shows that the last two decades have seen the country grow continuously older. Since 2000, the national median age - the point at which one-half the population is older and one-half younger - has increased by 3.4 years, with the largest single-year gain of 0.3 years coming in 2021. The median age in the U.S. is now 30.8. The median age for most states also increased from 2020 to 2021, indicating their populations are getting older overall. Utah remains the youngest state in the nation with a 2021 median age of 31.8 - up from 31.5 in 2020. The District of Columbia has the second-lowest median age (34.9) but had the largest increase - 0.5 years from the 2020 age of 34.4. According to the Census Bureau, "With birth rates trending downwards and the aging of the Baby Boom and Generation X cohorts, the median age will likely continue to rise in the coming years." Only one state s population - Maine - became slightly younger, as its median age decreased from 44.8 to 44.7. However, Maine remains the state with the oldest median age in the nation. Only three states have no change in median age - Montana (40.1), New Hampshire (43), and West Virginia (42.8). These are also among the oldest states in terms of median age. The median age in 57% of all U.S. counties and equivalents increased, and 74% of counties had higher median ages than the nation as a whole. Six counties had median ages greater than or equal to 60 years - Sumter County, FL (68.3); Kalawao County, HA (65.5); Catron County, NM (61.8); Harding County, NM (60.3); Charlotte County, FL (60.2); and Jeff Davis County, TX (60). The counties or equivalents with the youngest median ages in the nation were Lexington City, VA (22.2); Todd County, SD (23); Kusilvak Census Area, AK (23.7); Madison County, ID (32.7); and Radford City, VA (24.4). The median age increased in about 76% of metro areas between 2020 and 2021. The three largest increases were in Lake Charles, LA, where the median age rose from 36.5 to 37.4; Hilton Head Island-Bluffton, SC, which increased by 0.8 years to 47.8; and San Francisco-Oakland-Berkeley, CA, where the median age crossed the 40-years-of-age threshold, increasing from 39.4 to 40.1. Provo-Orem, UT was the metro with the lowest median age in 2021, and The Villages, FL, had the highest median age - 68.3. Not surprisingly, The Villages is located in Sumter County. Regionally, the Northeast was the oldest in 2021 with a median age of 40.4, followed by the Midwest (39), the South (38.6), and the West - which experienced the largest increase, 0.3 years to 37.7. In addition to aging, the nation is becoming more diverse. Nationally, all race and Hispanic origin groups experienced population increases, with the exception of the White population, which declined slightly by 0.03%. The Native Hawaiian and Other Pacific Islander population was the fastest-growing race, increasing by 1.54% between 2020 and 2021. Population breakdowns follow: White: 260,183,037 (down 79,836 since 2020);Black or African American: 49,586,352 (up 0.7%);Asian: 23,962,215 (up 1.2%);American Indian or Alaska Native: 7,206,898 (up 1.0%); andNative Hawaiian or Other Pacific Islander: 1,709,860 (up 1.5%). The Hispanic (any race) population grew by 767,907 from 2020 to 2021. California, Texas, and Florida have the largest Hispanic populations. Only New York (-1.1%) and the District of Columbia (-2.5%) experienced drops in the Hispanic population. Maine (5.4%) and Montana (5.4%) were the states with the fastest-growing Hispanic populations. There are two major takeaways from the data: The nation is growing more diverse; andIt is getting older. For affordable housing developers and housing agencies, this indicates continuing growth in the need for senior housing - especially housing that provides the amenities and services required for "aging in place." The growth in diversity serves as a reminder that discrimination based on national origin is a violation of federal fair housing law. Owners of multifamily housing must be willing to work with prospects for whom English may not be the primary language and should have policies and procedures in place for doing so.

HUD Issues MOR Rule and Notice

On June 27, 2022, the Department of Housing & Urban Development (HUD) published the Management and Occupancy Review (MOR) Rule and Notice in the Federal Register. The rule becomes effective on September 26, 2022. This final rule follows the 2015 publication of a proposed rule on MOR scheduling. The Rule and Notice apply to properties covered under project-based Section 8 Housing Assistance Payments (HAP) Contracts for the following programs: New ConstructionSubstantial RehabilitationNew Construction or Substantial Rehabilitation financed by State Housing AgenciesNew Construction financed under Section 515 of the Housing Act of 1949 (Section 8/515 projects)Loan Management Set Aside ProgramDisposition of HUD-Owned ProjectsSection 202/8 HUD conducts MORs to ensure that owners and agents (O/As) comply with HUD requirements. The MOR rule establishes a frequency for the completion of MORs based upon a project s prior MOR score and the project s rating under HUD s risk-based asset management model. HUD believes that moving to a risk-based MOR schedule will enhance HUD oversight of the Section 8 HAP program and improve overall program effectiveness. Beginning on September 26, 2022, Contract Administrators (CAs) will establish MOR schedules as follows: Properties with a previous MOR rating of Unsatisfactory  or Below Average will be reviewed within 12 months of the prior MOR;Properties with a previous MOR rating of Satisfactory will be reviewed within 12 months of the prior MOR if the Risk Classification of the property was Troubled or Potentially Troubled. If the Risk Classification was Not Troubled, these properties will be reviewed within 24 months of the prior MOR;Properties with a previous MOR rating of Above Average or Superior will be reviewed within 12 months of the prior MOR if the Risk Classification of the property was Troubled or Potentially Troubled.  If the Risk Classification was Not Troubled, these properties will be reviewed within 36 months of the prior MOR. Owners and Agents should remember that MORs are different than the physical inspections conducted by HUD s Real Estate Assessment Center (REAC). The MOR Rule and Notice do not affect REAC s inspections of Section 8 HAP properties. O/As operating any of the property types noted above should obtain a copy of the MOR Rule and Notice at https://www.federalregister.gov/documents/2022/06/27/2022-13426/streamlining-management-and-occupancy-reviews-for-section-8-housing-assistance-programs?utm_medium=email&utm_source=govdelivery.

A. J. Johnson Partners with Colorado Housing on Average Income Webinar

A.J. Johnson will be presenting Average Income Minimum Set-Aside: Requirements and Best Practices on July 19, 2022, at 11:00 am (EST). This class will be offered through Colorado Housing and Finance Authority s chfareach educational programming for affordable housing property owners and managers. The one-hour live webinar will review the requirements of the Average Income Minimum Set-Aside Test (AI), discuss the risks of this set-aside, and provide best practice recommendations for implementation of the Average Income test. It will also cover the current IRS guidance relating to the AI set-aside and recent industry requests made to the IRS. The webinar will be presented by A. J. Johnson, a nationally recognized expert on affordable housing who has  provided compliance oversight on multiple properties using the AI set-aside To register, please visit the chfareach webpage at this link.

A. J. Johnson to Host Live Webinar on Criminal Screening Policies

A. J. Johnson will be conducting a webinar on June 29, 2022, on Criminal Screening in Multifamily Housing - Recommended Policies & Procedures.  The Webinar will be held from 1:00 PM to 2:30 PM Eastern time. Property owners may (and should) screen applicants for criminal behavior but must be careful when doing so - and must have transparent and defensible policies relative to screening for past criminal conduct. This 1.5-hour webinar will assist owners and property managers in understanding what is required when implementing a criminal screening policy. The training will outline the HUD guidance relative to criminal screening and will review the type of policies that are - and are not - acceptable. The discussion will center on (1) the types of crimes that are appropriate for screening; (2) the HUD policy regarding the use of arrest records in criminal screening; (3) dealing with convictions for non-dangerous crimes; and (4) the use of individual assessments for rejected applicants. Following the session, participants will be better prepared to develop a criminal screening policy that will not run afoul of fair housing law. Those interested in participating in the Webinar may register on the A. J. Johnson Consulting Services website (www.ajjcs.net) under "Training Schedule."

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

During the month of July 2022, A. J. Johnson will be partnering with the MidAtlantic Affordable Housing Management Association for three live webinar training sessions intended for real estate professionals, particularly those in the affordable multifamily housing field.  The following sessions will be presented: July 12: Dealing with Affordable Housing Expenses & Deductions - Owners and managers must determine the amount of a family s income before the family is allowed to move into assisted housing and at least annually thereafter. The amount of assistance paid on behalf of the family is calculated using the family s annual income less allowable deductions. HUD program regulations specify the types and amounts of income and deductions to be included in the calculation of annual and adjusted income. There are five possible deductions that may be subtracted from annual income based on allowable family expenses and family characteristics. The remainder, after these deductions are subtracted, is called adjusted income. Adjusted income is generally the amount upon which rent is based. This training focuses on the calculation of annual adjusted income and will cover in detail the adjustments relating to (1) dependent deduction; (2) childcare deduction; (3) disability-related expenses; (4) the elderly deduction; and (5) deductions for medical expenses. The training also includes problems to ensure that the attendees can apply what they learn to actual situations. July 14: Operating Policies for Affordable Housing Properties - Written Operating Policies are a critical component of good management of affordable housing properties. This training will introduce attendees to the basic requirements of four essential policies - the Management Plan, general property policies (aka - "house rules"), tenant transfer policies, and waiting list management. At the conclusion of the training, property managers will be much more aware of the importance of these policies and the elements that should be part of each of the policies. July 26: Intermediate LIHTC Compliance - Designed for more experienced managers, supervisory personnel, investment asset managers, and compliance specialists, this program expands on the information covered in the Basics of Tax Credit Site Management. A more in-depth discussion of income verification issues is included as well as a discussion of minimum set-aside issues (including the Average Income Minimum Set-Aside), optional fees and use of common areas. The Available Unit Rule is covered in great detail, as are the requirements for units occupied by students. Attendees will also learn the requirements relating to setting rents at a tax credit property. This course contains some practice problems but is more discussion oriented than the Basic course. A calculator is required for this course. These sessions are part of the year-long collaboration between A. J. Johnson and MidAtlantic AHMA that is designed to provide affordable housing professionals with the knowledge needed to effectively manage the complex requirements of the various agencies overseeing these programs. Persons interested in any (or all) of these training sessions may register by visiting either www.ajjcs.net or https://www.mid-atlanticahma.org.

Eviction Due to Unauthorized Occupants Possible with Solid Documentation

In Montgomery Street Housing Urban Renewal, LLC v. Sheriff (June 2021), a property owner sued to evict a resident for lease violations relating to an unauthorized occupant. The New Jersey property, Montgomery Heights Apartments, is a Low-Income Housing Tax Credit (LIHTC) property with project-based Vouchers. The rules of both programs require that income be established based on the income of all household members. The property s occupancy standards require a minimum of three and a maximum of six household members for three-bedroom units. The property also had a procedure in place for adding new household members after the initial household moved in. This procedure required management approval and established eligibility of the new applicant. On December 15, 2016, the defendant applied for a three-bedroom apartment at the property, stating that she was the head of a five-person household, which included herself and four children. She stated that she was separated from her husband and that she expected no additions to the household in the next 12 months. She also stated that there were no "temporarily absent" household members. The application was approved, and the defendant signed a lease with an expiration of April 30, 2018. The lease specified that no more than one adult and four children could live in the unit and named the authorized occupants. The lease also permitted the landlord to terminate the lease with a 30-day written notice if any unauthorized occupant lived in the apartment. In April 2018, the lease was renewed, and the defendant certified that the same people were in the unit as were there at move-in. On January 2, 2019, a LIHTC self-certification was completed, certifying the same household members. On April 11, 2019, management notified the tenant that an unauthorized male had been found to be living in the unit, and it was believed to be the resident s husband. The resident was given until April 26, 2019, to remove the unauthorized occupant. Instead of removing her husband, on June 6, 2019, the resident delivered a letter to management asking that her husband and son be permitted to apply to be added to the lease.  On June 3, 2019, her husband had submitted a change-of-address form to the United States Postal Service, indicating that his mail should be sent to a post office box instead of the defendant s apartment, where it had been sent. On June 10, 2019, management sent the tenant a "LOW INCOME HOUSING TAX CREDIT NOTICE TO QUIT AND DEMAND FOR POSSESSION." The tenant was advised that the lease would terminate on July 31, 2019. The reason for the termination was the unauthorized occupant. The defendant did not vacate and on September 18, 2019, the landlord filed a complaint for possession. The defendant asserted that her apartment was large enough for herself and her five children, as well as her husband. She admitted that her 13-year-old son had moved in in August 2019 and that her husband had been "in and out" of the apartment since January 2019. On January 9, 2020, the trial court ruled in favor of the landlord, finding "there has been substantial non-compliance by unauthorized occupants." The defendant appealed, citing in part that "family reunification" does not constitute good cause to evict, that a seven-person occupancy did not violate LIHTC or HUD regulations, and that the eviction was contrary to law. The appeals court determined that "a continuing substantial violation of a reasonable lease term after the tenant has received a written notice to cease, is one of the statutory good causes for eviction." The court ruled that the language in the lease was "clear and unambiguous," and that the provisions of the lease were reasonable and consistent with public policy. Based on this reasoning, the appeals court upheld the eviction due to unauthorized occupancy. The Takeaway Owners of affordable housing properties should carefully review the language in their property leases relating to unauthorized occupancy. Make sure it is clear and precise. Also, when unauthorized occupancy is suspected, evidence and documentation of the lease violation will go a long way to ensuring the successful pursuit of the eviction.

Security Deposit Replacement Products - The Traditional Security Deposit May Soon Sharing Space with New Alternative

The standard practice of paying a month s rent (or more) is being challenged in the multifamily marketplace with new alternatives to the cash security deposit. These new products represent a gamechanger for the way landlords protect themselves from potential damages and non-payment of rent. An estimated $45 billion currently sits in security deposit accounts. These new products have the potential to free up much of this money for more immediate uses. However, there are pros and cons to these new products. Products being sold include surety bonds, insurance policies, and rent guarantees. Tenants are charged nonrefundable monthly fees - usually $10 to $30 - instead of a refundable upfront lump sum.Critics of these new products claim that tenants can wind up paying a lot more than they would with a refundable security deposit and that the products do not always offer the same protections.While the products are sold to renters, the companies are working for the landlords, and it s not always clear who takes the lead in resolving disputes. There is a growing movement in many cities called "Renters Choice," which is pressing cities and states to relax security deposit laws allowing greater potential for the new products, which are known collectively as "security deposit replacements," or SDRs. The first two laws of this type have been passed in Cincinnati and Atlanta. How It Works Companies like SureDeposit, TheGuarantors, Rhino, LeaseLock, and Obligo sign up property owners. Each product has a different system, so owners have a variety of choices. The target tenant market is not generally people who cannot afford a deposit, but people who prefer to use their money elsewhere or do not trust the landlord to return it. Some companies - such as Rhino - offer security deposit insurance. The renter purchases the insurance for the landlord s benefit in case there is unpaid rent or damages. For example, a tenant with a $2,000 monthly rent would pay a monthly fee of $20 or so for a policy that would pay the landlord as much as $2,000 if there were issues when the tenant moved out. If the damages total more than $2,000, the tenant is billed by Rhino. One of the main weaknesses relative to regular security deposits is the complexity and cost of maintaining the accounts. Also, landlords often have trouble tracking down tenants to return the security deposit after they move out. And of course, in affordable housing complexes, new applicants often have a tough time coming up with the money for a deposit. In the affordable housing realm, one of the primary benefits of these products is to help people get into the housing that they can otherwise afford - were it not for the upfront costs. However, tenant advocacy groups are not fully onboard with the alternatives. They point out that security deposits - while imperfect - offer legal protections that are lacking in these new products. The deposits are refundable while the cost of the new products is an actual cost - that will not be recouped. While these products do offer viable alternatives to traditional security deposits in many cases, landlords considering offering these options to applicants should be aware of potential pitfalls. Tenants who can afford lump sum deposits will usually be better off providing a refundable deposit than paying a nonrefundable monthly fee. Also, most affordable housing programs (e.g., LIHTC) will have to offer this service as an option and not require that applicants use the product. Otherwise, the fees associated with the insurance will be considered rent. All-in-all, it seems worthwhile for landlords of affordable rental properties to at least look into the possibility of offering an SDA to applicants. While pricing varies geographically, the cost of one of these products can range from $96 to $262 for a $1,400 per month rent. This is clearly more affordable to many applicants than a $1,400 security deposit, but it is nonrefundable. As noted already, the key to offering products of this type is to ensure that applicants fully understand that they have an option to provide a traditional security deposit or use of the alternate products. With this option available, affordable housing operators may well be able to expand the market of eligible renters who can afford the upfront costs of project entry.

HUD Publishes Various Income and Rent Limits

HUD has published the Fiscal Year 2022 income limits for Emergency Solutions Grants (ESG), Community Development Block Grant (CDBG), Housing Opportunities for People with Aids (HOPWA), the HOME Program, and the Housing Trust Fund (HTF). These limits will be effective on June 15, 2022, and can be found on HUD User at www.huduser.gov/portal/datasets/il.html. It should be noted that the CDBG-DR Income Limits for Puerto Rico and the U.S. Virgin Islands were effective on April 18, 2022. Income limits for the Neighborhood Stabilization Program have not yet been published but will also be effective on June 15, 2022. The FY 2022 rent limits for HOME and HTF have also been published and are effective on June 15, 2022. The HOME rent limits are available at www.hudexchange.info/programs/home/home-rent-limits/ and the HTF rents are available at www.hudexchange.info/programs/htf/htf-rent-limits/.