News

Supreme Court Leaves CDC Eviction Moratorium in Place

In a 5-4 vote, the Supreme Court is leaving a CDC nationwide ban on evictions due to COVID-19 in place. The Court rejected the request by a Landlord group, led by the Alabama Association of Realtors, to end the CDC moratorium on evicting millions of tenants who are not paying rent during the pandemic. Last week, the Biden Administration extended the moratorium until July 31. It is unlikely to be extended past that date. A federal judge in Washington, DC had struck down the moratorium as exceeding the CDC s authority, but put her ruling on hold. The vote by the high court will keep the ban in place until the end of July. In a brief opinion, Justice Brett Kavanaugh said that while he agrees with the ruling of the DC judge, he voted to leave the ban on evictions in place because it is due to end in a month and that time will allow for "more orderly distribution of the congressionally appropriated rental assistance funds." Also last week, the Treasury Department issued updated guidance for the Emergency Rental Assistance Program (ERAP) encouraging states and local governments to streamline the distribution of the $46.5 billion in ERA funding. Chief Justice John Roberts and the court s three liberal members also voted to keep the moratorium in place. The eviction ban was initially put in place last year to provide protection for renters out of concern that having families lose their homes and move into shelters or share crowded spaces with friends or relatives during the pandemic would increase the spread of the disease. According to HUD, at the end of March 2021, 6.4 million American households were behind on their rent. As of June 7, according to the U.S. Census Bureau s Household Pulse Survey, about 3.2 million people in the U.S. said they face eviction in the next two months.

A. J. Johnson to Offer Live Webinar on Reasonable Modifications and Accommodations Under Section 504 and the Fair Housing Act

A. J. Johnson will be conducting a webinar on July 1, 2021 on Reasonable Modification and Accommodation Requirements Under Section 504 and the Fair Housing Act.  The Webinar will be held from 1:00 PM to 2:30 PM Eastern time. The training will focus on the specific duties and responsibilities of multifamily rental managers with regard to accommodating the needs of disabled applicants and residents. The difference between a "modification" and an "accommodation" will be covered, as well as who is responsible for paying for these modifications and accommodations. Multiple court cases will be used to illustrate the requirements of the law. There will be adequate time for questions and answers relating to specific 504 or Fair Housing Accommodation/Modification issues. Those interested in participating in the Webinar may register on the A. J. Johnson Consulting Services website (www.ajjcs.net) under "Training Schedule."

HUD Restores Affirmatively Furthering Fair Housing Requirement

The U.S. Department of Housing and Urban Development (HUD) published an interim final rule on June 10 to restore the implementation of the Fair Housing Act s Affirmatively Furthering Fair Housing (AFFH) requirement. The publication provides a robust definition of the duty to affirmatively further fair housing, to which many HUD grantees must certify compliance. Additionally, HUD will provide communities that receive HUD funding with the technical support they need to meet their long-standing fair housing obligations. In addition to barring housing discrimination, the Fair Housing Act requires HUD and its funding recipients, such as local communities, to also take affirmative steps to remedy fair housing issues such as racially segregated neighborhoods, lack of housing choice, and unequal access to housing-related opportunities. To fulfill this requirement, in 2015, HUD promulgated a rule that compelled each covered funding recipient to undertake a defined fair housing planning process. Funding recipients were required to complete an assessment of fair housing issues, identify fair housing priorities and goals, and then commit to meaningful actions to meet those goals and remedy identified issues, with HUD reviewing each assessment. The last administration suspended the implementation of this rule and eliminated the 2015 rule s procedural requirements, redefining the regulatory AFFH requirement for communities. Under the restored AFFH regulatory definition announced on June 10, municipalities and other HUD funding recipients that must regularly certify compliance with the Fair Housing Act s AFFH requirement will, in doing so, commit to taking steps to remedy their unique fair housing issues. To support compliance with AFFH, HUD will provide a voluntary process that funding recipients can choose to use to identify the fair housing concerns that exist locally and commit to specific steps to remedy them. HUD will provide technical assistance and support to funding recipients that carry out this voluntary fair housing planning process. This rule is one of the ways in which HUD fulfills its legal mandate under the Fair Housing Act to "affirmatively further" the purposes of the Act. Additionally, it is consistent with President Biden s January 26 Memorandum, Redressing Our Nation s and the Federal Government s History of Discriminatory Housing Practices and Policies, which directed HUD to examine the prior Administration s fair housing rules and take all steps necessary to implement the Fair Housing Act s requirement that HUD administer its programs in a manner that affirmatively furthers fair housing. With this action, HUD is rescinding the previous Administration s rule (entitled "Preserving Neighborhood and Community Choice," or PCNC) and restoring certain definitions and other selected parts from the 2015 AFFH rule. The interim final rule will go into effect on July 31, 2021. HUD will take comments for 30 days after publication and may act on them prior to the effective date of the rule. HUD intends to undertake a separate rulemaking to build upon and further improve the 2015 AFFH rule by instituting a new fair housing planning process and framework that increases efficiency and improves outcomes for communities across the country. It should be noted that this rule affects cities, counties, and states, and is not a requirement of individual developers or housing operators.

A. J. Johnson Partners with Mid-Atlantic AHMA for June Training on Income, Assets & Tax-Exempt Bonds

During the month of June 2021, A. J. Johnson will be partnering with the MidAtlantic Affordable Housing Management Association for two live webinars intended for real estate professionals, particularly those in the affordable multifamily housing field. The following live webinars will be presented: June 23: Dealing with Income & Assets on Affordable Housing Properties -This five-hour course (there will be a one-hour lunch break) provides concentrated instruction on the required methodology for calculating and verifying income, and for determining the value of assets and income generated by those assets. The first section of the course involves a comprehensive discussion of employment income, along with 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 the determination of income. The second component of the training focuses on a detailed discussion of requirements related to the determination of asset value and income and is applicable to all federal housing programs, including the low-income housing tax credit, tax-exempt bonds, Section 8, Section 515, HOME, and HOPE VI. Multiple types of assets are covered, both in terms of what constitutes an asset and how must they be verified. This section also concludes with a series of problems, designed to test the student s understanding of the basic requirements relative to assets. June 24: Understanding the Basic Management Requirements of the Tax-Exempt Bond Program - This 2.5-hour course covers the basic requirements of the Tax-Exempt Bond Program, especially those requirements relating to on-site compliance. It is recommended for managers of tax-exempt bond properties, senior management, and compliance staff, as well as developers. The course covers the compliance differences between the Tax-Exempt Bond and Low-Income Housing Tax Credit (LIHTC) programs and provides guidance when combining bonds and credits. 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.

Biden Housing Plan Stresses Housing as Infrastructure

On May 26, the Biden Administration released its full plans for a surge in new housing spending as part of the American Jobs Plan. The proposal would invest $318 billion, including $105 billion in newly proposed tax credits. The goal is to expand the supply of safe, affordable housing in all 50 states and territories, in turn creating thousands of jobs. According to the White House, the Jobs Plan will create more than 2 million affordable housing units, making it the most aggressive affordable housing plan in the nation s history. While the overall plan will be hard-fought in Congress, there is broad bipartisan support for the elements that comprise the housing portion of the legislation, creating the possibility that even if the entire plan is not passed into law, some of the affordable housing components could be passed as stand-alone legislation. There are currently 11 million households in the United States that pay more than 50% of their income toward rent and millions of children live with exposure to lead paint in substandard housing. The main element of the housing portion of the Plan is $213 billion in spending for a variety of HUD programs, including (1) $45 billion for the Housing Trust Fund, which represents a huge expansion of a program that serves persons whose incomes do not exceed 30% of the area median income; (2) $35 billion for the HOME program, which is often used in conjunction with Low-Income Housing Tax Credits (LIHTC); and (3) $2 billion each into the Section 202 program for the elderly and project-based rental assistance. If approved, the new project-based rental assistance agreements will be the first in more than 20 years. In addition to the increased funding for HUD programs, the plan provides $105 billion in new and expanded tax credits, including $55 billion for the LIHTC program. Between the LIHTC and similar programs, the Jobs Plan aims to spur the construction of 500,000 to 600,000 affordable apartments over a five-year period. Included in this $105 billion tranche is a brand new tax credit based on the Neighborhoods Home Investment Act. This $20 billion program is modeled after the LIHTC program and would cover the cost of purchasing and rehabilitating homes in areas where the cost of building new housing is higher than the actual value of the homes. About 22% of metro areas nationwide and 25% of non-metro areas would qualify for these investments. The housing component of the Jobs Plan provides funds for rural housing also, with plans that would complement current Department of Agriculture housing programs. One of the most intriguing (and sure to be controversial) parts of the plan is a $5 billion zoning reform program that would be used for local housing policy grants for cities and counties that agree to ease restrictive or exclusionary zoning. Exclusionary zoning is one of the key contributors to the lack of affordable housing in many areas and leads to segregation and concentrated poverty. We will be following the progress of the American Jobs Plan as it works its way through Congress and will provide regular updates on its progress.

Court Affirms Right of Spouse to be a Live-in Aide at HUD-Assisted Property

In Johnson v. Guardian Management, April 2021, a court ruled that a current spouse may be a live-in aide for a resident at a HUD Section 8 project. Facts of the Case A Section 8 resident requested an accommodation for a live-in aide because of increased health problems associated with falls, memory issues, seizures, and other issues resulting from his disabilities.The resident submitted the required verification form from a healthcare provider verifying that he was disabled and his need for a live-in aide was related to his disability and necessary for him to have equal enjoyment of his apartment.Management denied his request because he asked that his wife be considered as the live-in aide.The resident filed a complaint with HUD s Office of Fair Housing & Equal Opportunity (FHEO) and filed suit in federal court.The FHEO determined that the wife did not qualify as a live-in aide, explaining that "while a relative may be considered a live-in caregiver," HUD s "applicable rules and regulations" don t allow a spouse to be a live-in aide.The FHEO s Letter of Findings quoted HUD Handbook 4350.3 s three requirements to be a live-in aide: (1) the aide must be essential to the care and well-being of the resident; (2) the aide may not be obligated for the support of the disabled person; and (3) the aide would not be living in the unit except to provide the necessary supportive services. Court Ruling The court ruled that spouses are not automatically excluded from serving as live-in aides and that HUD s interpretation of its own regulations was wrong. The judge pointed out that the HUD Handbook specifically states that a relative may be a live-in aide if they meet all the requirements.In fact, the judge noted that when the HUD regulation defining live-in aides was established, the agency intentionally deleted proposed text that would have prevented spouses and family members from serving as live-in aides specifically to encourage such persons to serve as live-in aides.The circumstances of this case showed sufficient evidence to support the resident s claim that the spouse would not be living with the resident except to provide supportive services.At the time of their marriage, the resident lived in Oregon and his wife lived in the Philippines.The resident and his wife continued to live apart for the next two years.During those two years, the wife continued to live and maintain her own home in the Philippines, where she worked as a teacher and showed no intention of moving to the United States.After two years of marriage, she offered to move to the United States to care for the resident because of his disability.The wife took a leave of absence from her job in the Philippines and was certified as the resident s live-in aide under the Medicaid Independent Choice Program.According to the court, the fact that the wife did not move to the United States for two years after marrying the resident until his health deteriorated further, is adequate evidence to support the resident s claim that his wife lives with him solely for the purpose of providing supportive services. Why This Case Matters A separated spouse - even if not legally separated - can be a live-in aide. The facts and circumstances will dictate whether the HUD requirements as outlined in 4350.3 are met. In this case - and all cases where a spouse is proposed as a live-in aide - the key is to show that were it not for the needs of the disabled resident, the spouse would not be living in the unit. As a best practice, you should be able to verify that the spouse has established their own residence, apart from your resident, for a long enough period of time to show that their intention is to live apart. And finally, remember that since the Low-Income Housing Tax Credit Program follows HUD rules in the determination of household membership, this same requirement applies to LIHTC properties.

HUD Enters Into Conciliation Agreement Relating to Language Access Services

The Department of Housing & Urban Development (HUD) recently entered into a Conciliation/Voluntary Compliance Agreement with an owner and management company in Sacramento, CA resolving allegations that they violated the Fair Housing Act (FHA) and Title VI of the Civil Rights Act of 1964. The respondents allegedly failed to provide language access services to Vietnamese residents and retaliated against a property employee for advocating for residents with limited English proficiency to receive oral interpretation services and translated vital documents. The FHA prohibits housing providers from discriminating against persons based on their national origin. This includes aiding others in the exercise or enjoyment of their fair housing rights. Additionally, Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin by recipients of federal financial assistance and requires such recipients to take reasonable steps to ensure meaningful access for limited English proficient (LEP) persons. The case came to HUD s attention when an agent at the Apartment Community, which receives HUD funding, filed a complaint alleging that the owners and managers of the property failed to provide language access services to the complex s Vietnamese residents and retaliated against an employee because she advocated for the housing providers to provide language services to LEP residents. Under the terms of the settlement, the management agent agreed to the following: Pay $10,000 to the employee who filed the complaint;Will not give a negative employment reference for the employee if potential future employers contact the management company;Provide $20,075 in compensation to residents of the property, with each household receiving $275 as either a check or rent credit;Send a notification letter to each household - in their primary language - notifying them of the agreement, including that the management company will provide LEP applicants with free oral interpretation services and translated documents when required by law; andEnsure that all employees who interact with residents or applicants attend training on Title VI language access requirements. This case is a reminder to all owners and property managers of the requirement to have LEP policies at all properties that receive federal assistance (primarily HUD and properties assisted by the Rural Housing Service). Owners and managers of non-federally assisted properties should also remember that the Fair Housing Act, which applies to nearly all housing owners and operators, protects individuals based on national origin, which makes it illegal to discriminate because of a person s birthplace, ancestry, culture, or language. What is Limited English Proficient (LEP)? The Census Bureau defines Limited English Proficiency as speaking English "less than very well."The entire LEP population grew by 52% in a ten-year period and is growing fastest in states with the greatest immigrant growth (California, Texas, and Florida). HUD s Title VI LEP Guidance Properties with HUD assistance are required to conduct a "Four Factor Analysis" relating to LEP persons: Number or proportion of LEP individuals served or encountered in the eligible service area;Generally, the greater the number or proportion of LEP persons from a certain language group within the eligible service area, the more likely language services are needed.What is the "Eligible Service Area"?The area from which the program would expect to draw its applicants and beneficiaries (i.e., the market area).Consider geographic and programmatic terms. Even if the overall number of LEP persons is small, the number of contacts the recipient has with LEP persons from the language group may be high.Only consider LEP individuals and not all persons from non-English speaking national origins.The frequency with which LEP persons come into contact with the program;The more frequent the contact with a particular language group, the more likely that enhanced language services in the language are needed.The nature and importance of the program, activity, or service provided by the program; andThe resources available to the grantee. Determining if there is Meaningful Access What is "Meaningful Access?" Ability to access programs and participate in services, activities, and other benefits. Where should the analysis begin? Here are some HUD-approved "safe-harbors:"If more than 5% of the eligible population or beneficiaries and more than 50 people are LEP deficient, vital documents should be translated to that language.If more than 5% of the eligible population or beneficiaries but less than 50 people are LEP deficient, there should be a translated written notice of their right to receive free oral interpretation of documents.If less than 5% of the eligible population or beneficiaries and less than 1,000 people are LEP deficient, no written translation is required. Minimum Essential Elements of LEP Services Recipients of federal assistance, no matter how small, must provide essential elements of LEP services, including: Assess languages used among the eligible population in the recipient s service area;Make "I Speak" cards readily available in the languages that have a significant population;Establish access to a translation line such as LanguageLine; andMake its website accessible to LEP persons. LEP Summary Recipients of federal funding need to be making efforts to provide access to people with limited English skills;The analysis of what services a recipient needs to provide is a fact specific balancing test; andIf someone is having difficulty accessing federally funded programs due to a language barrier, they can file a complaint and HUD may investigate. LEP Resources HUD LEP Page: http://portal.hud.gov/hudportal/HUD/pro gram_offices/fair_housing_equal_opp/pr omotingfh/lep Inter-Agency LEP Page: www.lep.gov

COVID-19 IRS Extension for Qualifying Units (Notices 2021-12 and 2021-17)- Industry Positions on Year Two Credits

In January 2021, the IRS released Notice 2021-12, extending various COVID-19 relief provisions for the Low-Income Housing Tax Credit (LIHTC) and Tax-Exempt Bond programs. The service also added relief with regard to deadlines for satisfying occupancy obligations. Section IV.E of Notice 2021-12 provided an extension to satisfy certain occupancy obligations. It stated that for purposes of Section 42(f), "if the close of the first year of the credit period with respect to a building is on or after April 1, 2020, and on or before June 30, 2021, then the qualified basis for the building for the first year of the credit period is calculated by taking into account any increase in the number of low-income units by the close of the 6-month period following the close of that first year." Section 42(f) is "Definition and special rules relating to credit period." This section includes special rules for the first year of the credit period, including how the applicable fraction is determined for the first year. Since the applicable fraction is used to determine qualified basis, Notice 2021-12 seemed to indicate that the six-month extension applied to any determination of a first-year qualified basis. This would mean that units qualified after the end of the first year of the credit period, but within the six-month extension, would qualify for first-year credits. On March 16, 2021, the IRS issued Notice 2021-17, which was included in the April 5, 2021, Internal Revenue Bulletin. This notice provides a more precise reference citation, clarifying that Section IV.E of Notice 2021-12 applies only for purposes of 42(f)(3)(A)(ii). This section of the code stipulates that units qualified after the first year of the credit period will only be entitled to 2/3 of the credit that units qualified during the first year of the credit period may claim. This clarification indicates that increases in qualified occupancy during the six-month extension may be used to avoid two-thirds tax credits in the future but may not be used to actually claim first-year credit for units not qualified during the first year. In other words, units qualified after the first year of the credit period but within the six-month extension will claim accelerated credit beginning in the second year of the credit period. Units qualified during this extension will not be entitled to credits during the first year of the credit period. We know two things with certainty based on the IRS Notice: (1) Units not qualified in 2020 will not be eligible for inclusion in a building s applicable fraction in 2020 [i.e., no 2020 credit for those units]; and (2) if such units are qualified no later than June 30, 2021, they will not be considered "2/3" units, meaning taxpayers may claim an accelerated credit for those units beginning in 2021. What We Don t Know with Certainty How will the credit in 2021 for units not qualified in 2020 but qualified no later than June 30, 2021, be determined? There are currently three schools of thought in the industry regarding how the credits for these units will be determined: A monthly weighted average will be applied to the units for the 2021 tax year and any disallowed credit will be claimed in year 12;A monthly weighted average will be applied to the units for the 2021 tax year and any disallowed credit is permanently lost; andCredit for 2021 will be determined based on the applicable fraction at the end of the tax year since 2021 is the second year of the compliance period. To determine which of these scenarios is most likely, an examination of the credit calculation requirements outlined in the Code is required. First Year Credit Calculation Section 42(f)(2) of the Code outlines that credits during year one of the credit and compliance period are calculated using a  monthly weighted average of applicable fractions as of the last day of each month (for buildings that are in service for the full calendar month). This is clear and is the method that will be used in the determination of 2020 credits. In other words, units not qualified during 2020 will not be eligible for 2020 credits. Increases in Qualified Basis 42(f)(3)(A) states that if qualified basis increases after the first year of the credit period, units that qualify and cause the increase in qualified basis after the first year will be subject to a "2/3" credit. In these cases, 42(f)(3)(B) states that the credit for these units will be determined using the same weighted average method as used in year one. This is the reason that some in the industry believe that numbers one or two noted above apply to the situation addressed in Notice 2021-12 and 17. However, there are two problems with this position: Since Notices 2021-12 and 17 state that units qualified no later than June 30, 2021, will be included in qualified basis at the end of 2020, there is no increase in qualified basis based on the qualification of these units, if qualified by June 30, 2021.There is only one first year of the credit period. In the scenarios envisioned by the IRS relative to the two notices, 2020 is the first year of the credit period - 2021 is year two of the credit period. 42(c)(1)(A) stipulates that except for the first year of the credit period, the applicable fraction will be determined as of the close of each taxable year. So, based on the language in the Code, option three above is the most likely method for determining the credit for units qualified after 2020 but no later than June 30, 2021. Put another way, as long as low-income units are qualified by June 30, 2021, for properties that first claim credit in 2020, the units will generate credit for the entire 2021 tax year (assuming the units are in the applicable fraction at the end of 2021). While we can never have complete confidence in positions that the IRS may take, the language in Section 42 seems to indicate that option three above is the most likely methodology to be used in the determination of credits for units qualified after 2020 but before June 30, 2021.