News

State Eviction Moratoriums for COVID-19 Due to Expire As Unemployment Benefits Dry Up

When the coronavirus pandemic hit the United States, most states put a hold on evictions from rental properties. In many states, those moratoriums are expiring at about the same time that more generous unemployment benefits are set to dry up. This one-two punch could easily worsen the housing crisis for Americans already bearing the worst of COVID-19s effects. According to a weekly Census Bureau survey measuring COVID-19s impact on Americans, 20% of adults polled in May said they had slight or no confidence they would be able to pay the rent or mortgage due in June. An Urban Institute analysis of Census data found nearly 25% of black renters deferred or did not pay their rent in May, compared with 14% of white renters. In Michigan alone, courts are bracing for as many as 75,000 landlord/tenant filings (that state s moratorium expired in mid-June). The result of all this is that the pandemic - which forced an economic collapse - is adding new burdens on top of the country s serious housing problems. Even before the current crisis, the United States had a supply and affordability problem. Unless significant support is forthcoming at the federal, state, and local level, it is going to get a lot worse. The result may be higher rates of homelessness - leaving more people on the streets in the middle of a global pandemic. Even before the pandemic, our homeless shelter system was stretched thin and not set up for social distancing. In the best of times an eviction can have a devastating effect on a family; in a pandemic with an economic crisis, the situation is amplified. Since the nation was not prepared for the pandemic (despite warnings from various sources for years), reactive measures were developed in haste and the result was a patchwork of eviction halts with varying lengths and caveats. Moratoria in places like Texas have lapsed;Others will expire very soon - including Louisiana and Pennsylvania - while some states such as New York have announced extensions.San Francisco essentially made its moratorium permanent, prohibiting landlords from ever using missed rent for pandemic-related reasons as grounds for eviction. This essentially means any rent lost during the pandemic due to a loss of a resident s income is lost forever. This is an awful piece of legislation that is likely to have a domino effect that will harm both tenants and property owners. Landlords need rental income to pay bills, provide tenant services, pay mortgages and taxes; the city needs tax income to pay workers and fund essential services.Federal help was limited to housing with federal assistance and that moratorium will expire on July 25. Both landlords and tenants need to understand that an eviction moratorium is not a rent freeze - which means that overdue rent is still accumulating for tenants who have been unable to pay it. Once a moratorium expires and landlords can get court approval to take or resume eviction action, residents could be months in the hole - with little to no chance of catching up. Even more concerning, some of the expirations coincide with the stoppage of more generous unemployment benefits (the $600 per week) that have helped keep unemployed individuals above water. Congress is still debating whether to extend enhanced unemployment benefits beyond July 31, but Senate Republicans are not in favor of such an extension. While it may be possible (and advisable) for landlords to negotiate with tenants before evicting them, landlords are feeling the pinch. However, the cost of evicting an existing tenant may not be worth it, particularly if there is little demand from new renters. Each property owner will have to assess how to move forward based on individual circumstances, but if a reasonable payment plan with residents appears feasible, it may be a better option than eviction.

HUD Publishes 2020 Income Limits for HOME, CDBG, HOPWA, HTF, and NSP and 2020 Rent Limits for HOME and HTF

On June 17, 2020, HUD published the Income Limits for 2020 for a number of programs, including: Community Development Block Grant (CDBG);HOME Program;Housing Opportunities for Persons with Aids (HOPWA);Housing Trust Fund (HTF); andNeighborhood Stabilization Program (NSP). HUD has also published the 2020 rent limits for the HOME and HTF programs. These updated limits will be effective on July 1, 2020 and can be accessed on the following websites: Income Limits: https://www.hudexchange.info/incomecalculator Maximum Rents: https://www.hudexchange.info/programs/home/home-rent-limits/

Paycheck Protection Program - Largest Banks Have Served the Smallest Businesses

The Bank Policy Institute (BPI) has released data from a survey of the nine largest retail banks regarding loan originations from the first two rounds of the Paycheck Protection Program (PPP). It appears that the mega-banks have primarily served the businesses that PPP was intended for - small businesses. The nine banks are Bank of America, Capital One, Citibank, JP Morgan Chase, PNC, TD Bank, Truist, US Bank, and Wells Fargo, and these banks disbursed nearly 1 million PPP loans to small businesses. The average loan was $115,000 (smaller than the program average of $130,000);64% of loans were for amounts under $50,000;51% of all loans went to businesses with fewer than five employees;75% of all loans went to businesses with fewer than ten employees; and98% of loans went to businesses with less than 100 employees. This data demonstrates that the nation s largest banks lent to America s smallest businesses in extraordinary numbers. This is very good news and indicates that the PPP essentially served its stated purpose - to allow the smallest companies the best chance to survive this crisis.

HUD and Prince George's County Housing Authority Enter into Voluntary Compliance Agreement Related to Discrimination Against the Disabled

On June 10, 2020, the U.S. Department of Housing & Urban Development (HUD) reached a Voluntary Compliance Agreement with the Housing Authority of Prince George s County (HAPGC), Maryland after a HUD compliance review determined that HAPGC denied the reasonable accommodation requests of tenants with disabilities, failed to ensure program accessibility in existing facilities, and failed to make an adequate number of accessible units available. Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits discrimination  on the basis of disability by recipients of federal financial assistance and requires that recipients of federal financial assistance bring their programs and activities into compliance with federal accessibility requirements. In addition, Title II of the Americans with Disabilities Act (ADA) prohibits state and local governmental entities from discriminating on the basis of disability in all services, activities, and programs. The case began when HUD conducted a review to determine if HAPGC was compliant with Section 504 and the ADA. The HUD compliance review identified a lack of accessibility throughout HAPGC s Housing Choice Voucher (HCV), Project-Based Voucher (PBV), Moderate Rehabilitation (Mod Rehab), and Public Housing (PH) programs. The review also revealed that HAPGC staff routinely failed to respond to the reasonable accommodation requests of tenants. Under the terms of the agreement, HAPGC will: Ensure that at least 5% of its PH, PBV, and Mod Rehab units are fully accessible, and at least 2% are designated sensory (i.e., hearing and vision) accessible;Hire an independent licensed architect to evaluate and design the accessible retrofitting of existing units and common areas;Work with disability-rights organizations to recruit landlords with accessible units into the HCV program;Set up a $200,000 compensation fund for HCV, PBV, Mod Rehab, and PH participants who were denied reasonable accommodations;Create a $200,000 modification fund for its HCV program to pay the costs for tenants who need reasonable accommodations and modifications;Appoint a VCA coordinator and a Fair Housing Compliance Coordinator during the seven-year term of the agreement;Develop policies pertaining to non-discrimination and accessibility, reasonable accommodations, effective communication, transfers, and assistance animals and post the policies on its website; andEnsure that all HAPGC staff attend annual fair housing training.

Boston and New York Landlords Sue Over COVID-19 Eviction Moratoriums

Landlords in New York and Massachusetts have filed legal challenges to eviction moratoriums put into place as a result of the COVID-19 pandemic, arguing that the bans on eviction are unconstitutional. On May 27, 2020, a group of landlords in Westchester County, NY filed a lawsuit against New York Governor Andrew Cuomo challenging his extension of a previously enacted eviction moratorium. The owners say that the moratorium violates their contract and due process rights and constitutes and illegal taking   of the landlords properties. Filed in federal court in White Plains, NY, the suit aims to reverse two provisions of the May 7 extension order: (1) the prevention of landlords from seeking eviction proceedings through August 19; and (2) the option for renters to use their security deposit towards their rent payment. The plaintiffs are taking the position that "the order has given carte blanche to tenants to withhold rent without immediate repercussion." The complaint further states, "Plaintiffs and all similarly situated landlords are precluded from asserting their rights and obtaining relief to protect their property, all the while remaining obligated to pay all of their own carrying costs and other expenses, including taxes to the various governmental divisions of New York State." In Massachusetts, a similar complaint has been filed to challenge the state s eviction moratorium that was enacted in April. Attorneys representing two Boston-area landlords filed an emergency petition in Massachusetts Supreme Judicial Court on May 29 seeking to nullify the ban on the grounds that the moratorium is unconstitutional and oversteps its legal bounds. The MA moratorium prohibits nearly all residential evictions, with the exception of those involving criminal activity or lease violations that could negatively impact the health and safety of other residents. The ban is set to expire on August 18 or 45 days after Governor Charlie Baker lifts the Coronavirus state of emergency, whichever comes first. Additionally, the law permits the governor to extend the moratorium in 90-day increments. Owners and landlords in Orange County, CA and Union City, NJ have also pushed back against eviction moratoriums enacted at the local level in recent weeks. These legal challenges come during a turbulent time in the United States, which has seen unemployment numbers increase dramatically, leaving many industries - including real estate - in desperate straits. While there is also an eviction moratorium at the national level for federally-assisted properties, many of these properties also are receiving mortgage relief (with the exception of LIHTC properties, which are also subject to the federal moratorium). There generally is no such relief for properties subject to state moratoriums.

CARES Act Eviction Moratorium applies to the HOME Program

The Department of Housing & Urban Development (HUD) recently sent a reminder to HOME Participating Jurisdictions (PJs) of their responsibility to notify property owners and tenants about the temporary eviction moratorium established by Section 4024 of the CARES Act. The temporary eviction moratorium applies to covered dwelling units assisted by the HOME program and some PJs have failed to notify property owners and tenants participating in the HOME program of this fact. The CARES Act established a 120-day moratorium on evictions in certain federally-assisted housing, including housing assisted under the HOME program. The eviction moratorium applies to all covered dwelling units in HOME-assisted rental projects, as well as units occupied by recipients of HOME-funded Tenant-Based Rental Assistance (TBRA). If HOME funds were provided to a property as a loan, the eviction moratorium applies to all rental units in or on the property - not just the HOME-assisted units. The eviction moratorium began on March 27, 2020 and is in effect through July 24, 2020. During the moratorium, landlords may not: File eviction actions against tenants for nonpayment of rent; orCharge any late fees, or accrue charges/fees, for nonpayment of rent during the 120-day period. Rent is still due during the eviction moratorium and unpaid rent can accrue during the 120-day period. If the amount owed for rent is not paid back after July 24, 2020, owners/property managers may file for eviction in the court of jurisdiction 30 days after a notice of eviction is issued to the tenant, in accordance with state and local laws. The eviction moratorium does not affect any eviction that was in the court of jurisdiction before March 27, 2020 in accordance with state and local laws. If a tenant was past due on rent, and received a notice of eviction, or an eviction action was filed before March 27, 2020, the owner/property manager may proceed with the eviction action after providing a 30-day written notice in accordance with HOME requirements and applicable state and local laws. An eviction for lease violations other than nonpayment of rent or nonpayment of other fees or charges unrelated to nonpayment of rent is permitted. Owners and property managers can still evict for prohibited tenant actions enforceable by the lease (other than nonpayment of rent and related charges). While some PJs have not provided appropriate notice to HOME-assisted properties, those properties are still required to comply with the eviction moratorium provisions of the CARES Act.

National Report on Affordable Housing Preservation Released

A Joint report of the National Low Income Housing Coalition (NLIHC) and the Public and Affordable Housing Research Corporation (PAHRC) on the affordable housing preservation situation and needs in the United States was released in late May. The report focuses on the challenge of preserving the existing federally assisted affordable housing stock. Federally-assisted affordable housing provides stability for 4.9 million low-income renter households. The need for affordable rental homes, however, still far outweighs the supply. Fewer than four affordable rental homes are available to every ten extremely low-income renter households, leaving a national shortage of 7 million rental homes. Preserving and expanding the nation s federally-assisted housing stock will require adequately funding affordable housing programs, adopting policies that support long-term affordability, developing local preservation strategies, and boosting capacity for affordable housing preservation. Introduction The United States faces a shortage of approximately 7 million affordable rental homes.Without government assistance, the private sector cannot produce adequate numbers of affordable housing.From 2012 - 2017, the private market has lost more than 3 million affordable rental units.At the same time, there is chronic underinvestment in federal affordable housing programs.Current federal programs for affordable rental housing are tenant-based and project-based and are administered by HUD, RD, and the IRS.Tenant-based subsidies (e.g., housing choice vouchers) are demand-side subsidies allocated directly to tenants to subsidize their rents in the private market up to a modest payment standard.Project-based subsidies, such as the LIHTC, PBRA, and Public Housing, are supply-side subsidies that provide affordable housing owners with capital or operating support to create and maintain the affordable housing stock.About 4.9 million rental units receive federal project-based subsidies - 10% of the rental housing stock in the U.S. Primary Federally Funded Project-Based Subsidy Programs Program Units Assisted in 2019 Low-Income Housing Tax Credit (LIHTC)                  2,413,156 Section 8 PBRA                                                           1,403,603 Public Housing                                                            948,021 Section 515                                                                 383,520 Section 521                                                                 270,812 HOME Program                                                          261,718 HUD Insured Mortgages                                             176,097 Section 538                                                                 54,540 Section 202 Direct Loan                                             39,737 State HFA Section 236                                               35,284 Other programs that provide affordable housing include: Community Development Block Grants (CDBG)National Housing Trust Fund (HTF)Housing Opportunities for Persons with Aids (HOPWA)Project-based vouchers (PBVs) Preservation Risks There are currently three basic risks to the preservation of existing affordable housing: Expiration or exit risk;Depreciation; andThe lack of appropriations Exit risk refers to the degree to which federally assisted housing is at risk of no longer being subject to program requirements (e.g., expiring extended use agreements for LIHTC projects). With the exception of Public Housing, all federal project-based subsidies carry restrictions on affordability and eligibility that are limited in duration. Research shows that a for-profit owner of a rental property with a Section 8 PBRA contract in a tight rental market is more likely to not renew a subsidy contract and reposition a property as market rate. Depreciation risk refers to the degree to which the financial stability and physical quality of federally subsidized housing can deteriorate over time. This risk can be greater than exit risk to the preservation of assisted housing. Due to the low rent paid by residents, owners of these properties require ongoing operating or capital support - or both - to maintain the financial stability and physical viability of the housing. Appropriations risk refers to the degree to which federally subsidized housing depends on Congress to provide continual funding in order to continue to operate as affordable housing. In some programs, such as LIHTC, subsequent credit allocations may be the only way to extend eligibility and affordability restrictions within a program. Between 2000 and 2015, Congress cut the Public Housing Capital fund by more than 50% and it has only twice provided adequate funding levels for the operating fund since 2002. This has led to the loss of more than 250,000 Public Housing units since the mid-1990s and a capital needs backlog of $70 billion. 15% of current Public Housing units have failing physical inspection scores and are in need of immediate capital infusions. Why Preservation Must be the Cornerstone of Any Affordable Housing Strategy New development alone cannot offset the loss of the existing affordable housing stock. LIHTC, the largest affordable housing production program, does not assist tenants of properties exiting the program. Preservation may be the only option to ensure housing stability for many LIHTC tenants so long as existing eligibility and affordability requirements are maintained in the process. The issues that make it difficult to replace housing in high-cost and exclusionary neighborhood make preservation more cost-effective than new construction. In disadvantaged neighborhood, preservation has the potential to prevent further disinvestment. Preservation also presents a clear opportunity to retrofit older federally-assisted housing for energy-efficiency, lowering greenhouse gas emissions and figuring in a larger national strategy to combat climate change. Further research is needed to fully compare the environmental impact of new construction and preservation (especially preservation that involves rehabilitation). Finally, preservation prevents the loss of units from the federally assisted stock. Preservation must play a central role if federal resources are to be expanded and the challenges of the affordable housing crisis are to be met. Federally-Assisted Housing Stock In 2019, 81,007 federally-assisted properties (4.9 million units) received federal project-based assistance. This does not include: Community Development Block Grants (CDBG)National Housing Trust Fund (HTF)Moderate RehabilitationMcKinney Vento Permanent HousingHousing Opportunities for Persons with Aids (HOPWA)Tax-Exempt BondsProject-based vouchers (PBVs) LIHTC supports 49% of all project-based federally-assisted rental homes making it the largest affordable housing subsidy program, followed by Section 8 PBRA (29%), Public Housing (19%), and USDA loan programs (9%). Tenants also frequently use HCVs at project-based federally-assisted rental home, further boosting the reliance on multiple funding sources. The percentage of federally-assisted housing varies greatly by state. Federally-assisted rental homes make up a larger percentage of the rental stock in the Northeast and Midwest. States with 15% or more of the rental stock being federally-assisted are Maine, Massachusetts, Rhode Island, Mississippi, Minnesota, and South Dakota. LIHTC, HOME, CDBG, and the HTF are the only federally funded programs actively financing new construction of affordable housing. However, due to the pressure to preserve existing housing, fewer new units are being built. Federally-Assisted Housing Stock at Risk Affordability restrictions are set to expire for 299,303 (6%) rental homes between January 2020 and December 2024. This figure will increase in future years. North and South Dakota have the greatest percentage of assisted housing expiring.  Overall, federally-assisted homes with subsidies expiring in the next five years are concentrated in California (34,215), New York (30,410), Florida (16,373), and Texas (16,121). Currently, most of the expirations are for Project-Based Section 8 Contracts, but in 2025, the LIHTC program will pass Section 8 for the most expiring low-income use requirements. Many federally-assisted homes expiring in the next five years demonstrate factors that can increase exit risk: 79% did not receive subsidy for capital improvements in the past 20-years;53% are owned by for-profit owners (which are more likely to exit affordability programs);18% were built before 1975;7% have failing REAC scores; and58% suffer from two or more of these risk elements. Trends in Preservation Ensuring adequate funds for the preservation of existing federally-assisted properties can keep these homes affordable to extremely low-income families for years to come and can save construction costs in the long run. Programs that provide funding to meet the capital needs of properties and incentives for owners to renew their rental assistance contracts (i.e., not exit the affordable housing stock) support the preservation of affordable homes. Programs that are currently preserving affordable housing include: LIHTCFinances the construction, rehabilitation, and preservation of affordable housing for low-income individuals.Preserves approximately 32,000 units annually.HOMEBlock grant that finances activities to increase and preserve the supply of affordable housing.Preserves up to 7,000 units annually.National HTFBlock grant that finances the construction, rehabilitation, and preservation of affordable housing.Preserves less than 700 units annually.CDBG Block grant that finances activities benefitting low and moderate income households that improve housing, living environments, and economic opportunity.Contributes to the preservation of publicly owned units. Other programs contribute limited numbers of preservation units annually, including: Mark-to-Market;Multifamily Housing Preservation & Revitalization (MPR) Demonstration Program;Section 515;Project-based vouchers;Section 202 Capital Advance; andSection 811 Capital Advance. LIHTC and HOME, two of the largest active federally funded subsidy programs, provide resources for preserving the existing affordable rental housing stock in need of capital investment. Depending on the year, 35% to 62% of units financed by the LIHTC program between 2003 and 2012 were for existing affordable properties. Strategies that Can Expand & Preserve Affordable Housing The study makes a number of recommendations regarding how to address the preservation problems. Fully fund the national HTF.Expand the LIHTC program, incorporating key reforms.Fully fund Public Housing capital and operating funds.Expand funding for rural housing programs, including Section 521, 515, and MPR.Expand state and locally funded subsidy programs.Require LIHTC properties to waive the right to Qualified Contracts.Increase the notification requirements when an owner opts out.Incentivize or require owners to keep their property affordable beyond the federally mandated minimum.Prioritize funding opportunities for mission-driven developers committed to preserving long-term affordability.Establish right-of-first refusal policies.Build a data-base of at-risk properties.Create a preservation plan.Build preservation networks.Provide technical assistance on preservation.Award pre-development funds. While it is certainly aspirational, this report does provide a blueprint on how to increase the preservation of affordable housing in the United States. While many of the proposals are probably not politically feasible, others may well be put into place. For example, expansion of the LIHTC program is very possible, as is the expansion of state and local programs (although growth in state and local programs will probably be delayed due to the crushing financial burden imposed by COVID-19).

HUD Releasing $800 Million in CARES Act Assistance for Section 8 Properties

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provides $1 billion of additional appropriations to Project-Based Rental Assistance (PBRA) to prevent, prepare for, and respond to coronavirus, including to maintain normal operations and take other necessary actions during the time that the program is impacted by the COVID-19 pandemic. On May 28, HUD completed funding actions to provide $800 million of CARES Act supplemental appropriations to approximately 16,500 properties with Section 8 PBRA contracts to maintain normal operations. This money, in addition to amounts appropriated under the FY 2020 appropriations Act, will help compensate owners for decreased tenant rent payments resulting from reductions in tenant income. The funds will also assist in covering increases in vacancy payment claims that may occur due to COVID-19 related delays in moving in new tenants. Owners will receive automated notifications through TRACS/ARAMS that funds have been obligated on HAP contracts. Owners/Agents (O/As) do not need to take any special actions to access these CARES Act funds. O/As should follow current protocols for interim tenant recertifications when a loss of income is reported and voucher for subsidy accordingly. A notice (or notices) describing the allocation methodology and the requirements governing the remaining $200 million of CARES Act PBRA supplemental funding will be released by HUD shortly. A small percentage of owners will receive more than $150,000 in funding. The CARES Act requires monthly reporting in these cases. HUD will work to ensure that this requirement can be fulfilled by recipients in a manner that utilizes to the greatest extent possible existing reporting streams with minimal additional burden. O/As should contact their assigned account executive at HUD with any questions regarding CARES Act funds.