News

Social Security COLA Announced

The federal government announced on October 22, 2014 that the Social Security Cost of Live Adjustment (COLA) for 2015 will be 1.7%. This will increase the monthly pension for the average retired worker by $22 per month. This is up from the 2014 increase of 1.5%, but less than the 3.6% increase of 2102. Owners and managers of properties that are required to determine the income of residents should use the 1.7% increase when projecting the income of applicants and residents. Payments will begin in January and will also affect persons receiving SSI, VA pensions, Civil Service Pensions and Railroad Retirement.

Tenant Selection Plan - Comprehensive Overview of HUD Requirements (October 2014)

Tenant Selection Plan - Comprehensive Overview of HUD Requirements (October 2014) Following are the basic required elements of HUD required Tenant Selection Plans. Managers and owners of properties requiring such plans should be aware of the following requirements: Income Limits   The TSP must specify the income limits that apply to the site (ELI/VLI/LI). The actual dollar amount of the limits should not be in the Plan. (4350.3, par.4-4.C.2).   Site Specific Requirements   The Plan must specify whether the site is designated for a special population, such as the elderly or disabled (4350.3, par.4-4(C)(1)(a)).   Citizenship/Immigration Status Requirements   The Plan must describe HUD s restrictions on housing assistance to noncitizens and the procedures for verifying immigration status (and citizenship, if the owner chooses to verify the status of applicants claiming U.S. citizenship). The TSP must also outline the procedures for a temporary deferral of termination of assistance in cases where applicants cannot prove or the owner cannot verify their eligibility (4350.3, par. 4-4(C)(1)(b)).   Social Security Number Requirements   The Plan must describe HUD s requirements regarding provision of Social Security Numbers (SSNs). [4350.3, par. 4-4(C)(1)(c)].   Application & Selection Procedures   Taking Applications: The Plan must clearly outline how applications (and pre-applications if used) will be accepted. Unless the waiting list is closed, applications should be accepted from anyone wishing to submit one. State that every applicant will be interviewed and list the topics that will be discussed during the interview. 4350.3, par. 4-24 lists the topics that must be covered. Preferences: Plan must define each preference adopted for use at the site and any rating, ranking, or combining of the preferences. Describe acceptable sources of information to verify preference qualification. Any state or local preferences require HUD approval.   Income Targeting   For Section 8 properties only, a description of HUD s 30% income targeting requirement must be included in the TSP. How and when will applicants be "skipped over" in favor of an ELI household? How will the application of the "skipped" person be treated?   Applicant Screening Criteria (4350.3, par. 4-4(C)(3)(d).   The plan must describe the site s standards used to screen for information on drug-related or criminal activity - including sex offender registration). Use of EIV Existing Tenant Search. Owner elected screening criteria must also be described. g., Home visits Specify how criteria will be used to evaluate applicants for approval or rejection. g., if former landlords will be contacted, specify how many instances of nonpayment or other lease violations will be grounds for rejection and how far back in time you will look.   Reasons for Rejecting Applicants   The plan must describe the circumstances under which the owner may reject an applicant for occupancy or assistance. If extenuating circumstances will be considered prior to formal rejection of an applicant, this policy must be described in the TSP. Applicants may be rejected for the following reasons: The household is not eligible for occupancy at the project; SSN s are not provided for all household members (except those who do not claim eligible immigration status or were 62 or older on January 31, 2010, and whose initial determination of eligibility began before January 31, 2010); Any household member age 18+ refuses to sign required consent forms; The household has characteristics that are not appropriate for certain type of unit or not of an appropriate size for available units. They must be retained in the waiting list; The household contains members who did not declare citizenship or noncitizen status, or sign a statement electing not to contend noncitizen status. You must give the applicants an opportunity to revise the application excluding nonqualifying members; and Applicant does not meet site screening criteria.   Occupancy Standards   The occupancy standards for determining unit size must be outlined in the plan. g., no fewer than two people and no more than five people in a two-bedroom unit. Procedures for placing applicants on waiting lists for different size units must be explained.   Unit Transfer Policies   Plan should outline policies for tenant requested transfers in all the following areas: Changes in household size or composition; Need for a deeper subsidy covered by another unit; Medical reasons certified by a health care professional; or Need for an accessible unit (4350.3, par. 4-4(C)(5)).   Nondiscrimination Policies   The TSP must state a commitment to nondiscrimination [4350.3, par. 4-4 (C) (6)].   Policies on Opening & Closing Waiting Lists   The TSP must outline when that waiting list will be opened or closed. It must also specify the types of marketing and advertising that will be used, and how the announcement of the opening or closing will be announced. [4350.3, par. 4-4(C)(7)]. Waiting lists may be closed only if it will be at least a year before a unit would become available [4350.3, par. 4-16 (B)(1)(a)].   Student Eligibility   The Plan must include the requirements for determining eligibility of students enrolled at an institution of higher education, in conformance to the requirements of 4350.3, Chg. 4, par. 4-4(C)(8).   Violence Against Women Act Protections   Documentation regarding VAWA protections must be added to Tenant Selection Plans for Section 8 properties only.   The TSP, as well as House Rules (if any), must include policies and procedures covering the Violence Against Women Act (VAWA) protections. Specific requirements are covered in HUD Handbook 4350.3, par. 4-4(C)(9). The following elements must be included in the Plan: Owners must provide notice to Section 8 tenants of their rights and obligations under VAWA. Owners must provide tenants the option to complete the Certification of Domestic Violence, Dating Violence or Stalking, form HUD - 91066, or, in lieu of the certification form or in addition to it, owners may accept a federal, state, tribal, territorial, or local police record or court record, or documentation signed by an employee, agent, or volunteer of a victim service provider, an attorney, or medical professional from whom the victim has sought assistance in addressing domestic violence, or the effects of the abuse. Owners are not required to demand that an individual produce official documentation or physical proof of status as a victim in order to receive the protections of VAWA. Owners, at their discretion, may provide assistance to an individual based solely upon the individual s statement or other corroborating evidence. Owners must have tenants sign the VAWA lease addendum, form HUD-91067.      

HUD Makes Fair Housing Awards in 42 States and DC - October 15, 2014

The Department of Housing and Urban Development announced today (October 15, 2014) that it has awarded $38.3 million to more than 100 fair housing organizations in 43 states and the District of Columbia to address housing discrimination. The competitive grants are provided to assist local organizations with fair housing act enforcement through investigations and testing. Some of the states and service areas awarded grants include: *Connecticut (Connecticut Fair Housing Center, Hartford); *Delaware (Community Legal Aid Society, Wilmington); *District of Columbia (National Fair Housing Alliance); *Georgia (Metro Fair Housing Services, Inc., Atlanta); *Maryland (Baltimore Neighborhoods, Inc., Baltimore); *New Hampshire (New Hampshire Legal Assistance, Concord); *North Carolina (Elizabeth City State University, Elizabeth City, and Legal Aid of NC, Raleigh); and *Virginia (Housing Opportunities Made Equal of Virginia, Richmond). A number of states received multiple grants, including California, Florida, Illinois, Louisiana, Massachusetts, Michigan, New York, Ohio, Pennsylvania, Tennessee and Texas. Owners and managers of properties throughout the United States are reminded that all properties are subject to testing by fair housing organizations. Being proactive with regard to fair housing policies and employee training is the best way to prevent being found in violation of federal, state or local fair housing laws.

Local Ordinance May Not Be Adequate for Refusal to Allow Certain Breeds as Companion Animals

In Warren v. Delvista Towers Condominium Association, Inc. July 2014, a resident sued a a community for failure to accommodate his disability by allowing him to keep a pit bull as an emotional support animal. Miami-Dade County prohibits pit bulls as a dangerous breed, and based on this, the community refused to allow the animal as a companion animal. Somewhat surprisingly, the federal court in Florida refused the community's request for judgment without trial. The court ruled that in order to support the claim of discrimination, a resident must show that (1) he is disabled; (2) he had requested an accommodation; (3) the accommodation was necessary to afford the resident an equal opportunity to use and enjoy the dwelling; and (4) the community refused to make the accommodation. In this case, the community conceded that the resident was disabled and qualified for an accommodation. The only issue was whether the requested accommodation was reasonable, and due to the local ban on pit bulls, the community determined that it was not a reasonable request. The FHA allows for the denial of a reasonable accommodation request for an assistance animal if its behavior poses a direct threat and its owner has taken no effective action to control its behavior or eliminate the risk. The threat must be from the specific animal - not a remote or speculative threat. The court ruled that a jury would have to determine whether the particular animal poses a threat. The court further ruled that the county ordinance banning pit bulls did not, by itself, make the request unreasonable. HUD has indicated that restrictions on breed, weight or height cannot be used to prohibit specific animals as assistance animals. The question is whether federal fair housing laws override local laws to the contrary. Generally, state laws that interfere with or are contrary to federal law are invalid. Courts have ruled that federal fair housing law preempts any law that permits a discriminatory practice. In this case, if the county ordinance was enforced, it would violate the FHA by permitting a discriminatory practice. For this reason, the County breed ban interferes with the objectives of Congress in enacting the FHA. Having studied the Congressional Record extensively with regard to the "intent of Congress," and having been an advisor to Congressional staff when the disabled were added as a protected characteristic in 1988, I'm pretty confident that the current state of the "assistance animal" situation with regard to fair housing is the result of an increasingly aggressive approach to fair housing enforcement by HUD - not the actual intent of Congress. Be that as it may, this is an important case, and it will be interesting to see how it is ultimately adjudicated. At this point, my advice to clients is still to follow local ordinances with regard to breed restrictions. If such ordinances are discriminatory, it is the ordinances that should be challenged - not property owners for following local law.

Supreme Court to Hear Disparate Impact Fair Housing Case

The United States Supreme Court has agreed to accept a petition to consider the case Texas Department of Housing & Community Affairs (TDHCA) v. Inclusive Communities.   Background Inclusive Communities successfully argued to the lower courts that TDHCA allocated low-income housing tax credits in a manner that concentrated LIHTC housing in minority communities, making it more difficult for minorities to obtain housing in non-minority areas.   The petition from TDHCA to the Supreme Court raises two questions: Does the Fair Housing Act protect against disparate impact (i.e., unintentional discrimination); and If it does, what is the standard that should be applied? When the Court announced that it would accept the case, it indicated that it would only consider the first question.   Explanation of Disparate Impact There is no question that the Fair Housing Act (FHA) prohibits intentional discrimination based on the seven federally protected characteristics (race, color, national origin, religion, sex, familial status and disability). Shortly after passage of the FHA, courts began to apply the Act to unintentional actions that had a discriminatory impact on protected characteristics. Examples range from zoning rules that impact minorities to unreasonable limits on the number of people than can occupy a unit, affecting families with children.   The Supreme Court was prepared to address the issue in each of the last two years (Magner v. Gallagher and Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc.). However, in both cases, the Department of Justice convinced the parties to settle, removing the cases from the Court s docket.   There is virtually no chance that this case will be settled. Texas has indicated they will proceed with the case no matter what the Justice Department desire to settle may be. The fact that the Court will only address the first question (does the FHA cover disparate impact claims), does not bode well for the use of disparate impact in fair housing claims. Clearly the Court has serious questions about the use of disparate impact for fair housing purposes. In fact, historically the Court has frowned on any use of disparate impact - no matter what the area of law.   A decision on this case can be expected in the summer of 2015.

Bill Requiring Increases in Minimum Rents for Public Housing, Vouchers and PB Section 8 Introduced in Congress

On September 18, 2014, H.R. 5632 was introduced in Congress in order to "reform and update the flat rent structure for public housing." The bill has been referred to the House Committee on Financial Services, and has very little chance of passage during the current Congressional term.   The bill would require all public housing agencies to set minimum rents of no less than $50 per month for public housing residents and voucher holders. Of specific interest to private owners of Section 8 properties, the bill would also require HUD to set minimum rents for project-based Section 8 households at no less than $50. Under current law, PHAs can set monthly minimum rents of up to $50 for public housing and voucher households. Based on available data, 73% of PHAs have $50 minimum rents, 11% have no minimum rent, and the remainder have minimum rent between $0 and $50.   In the project-based Section 8 program, HUD has the discretion to set minimum rents up to $50, but has long held the minimum at $25 per month.

Familial Status Discrimination Case Illustrates Importance of Treatment of Children

On Friday, July 25, 2014, the United States Department of Justice announced an agreement with the owners of Woodland Garden Apartments in Fremont, California, settling allegations of discrimination against families with children. Under the Consent Order, the owners are required to pay $77,500 to the victims of the discrimination and $2,500 to the government as a civil penalty. The complex was accused of having rules that prohibited children from playing outside in the common grassy areas of the property and stated that families would be evicted for violation of the rule. Five families, who lived at the complex, with the support of a local fair housing organization, brought the case. In addition to monetary payments, the consent decree requires that the defendants implement a nondiscrimination policy, establish new procedures for enforcement of rules, and undergo fair housing training. This case is a reminder that children living at apartments may not be deprived of reasonable enjoyment of the property amenities - including grassy areas. This is especially the case if there are no other designated play areas for the children. Owners and managers should carefully examine their policies with regard to children to ensure the rules do not single out families with children for discriminatory treatment.

Changes in Administration of State Supplementary Payments (SSP)

Almost all states have a Supplementary Payments (SSP) Program, which supplements the Federal Supplemental Security benefit (SSI), which is administered by the Social Security Administration (SSA). In the past, many states had their program administered by the SSA, making it easy to verify income from the SSP programs of those states. A number of states have decided to administer the SSP program themselves, and not use the SSA. This will impact the verification of Social Security and SSI income for users of Enterprise Income Verification (EIV). EIV will no longer reflect the SSP for the affected states. In order to verify the payment in states administering SSP, verification can be obtained by the tenant from the state office and as outlined in Chapter 5 and Appendix 3 of HUD Handbook 4350.3. This procedure applies to HUD properties as well as LIHTC and Rural Development. HUD has confirmed that in these cases, the verification must be provided within 120-days of the certification date and must not be older than 120 days from the date provided to the owner. As always, if this causes a discrepancy in the EIV report, managers should note the reason for the discrepancy and place it in the tenant file. The following states will administer the supplement without use of the SSA: Alabama Alaska Arkansas Colorado Connecticut Florida Georgia Idaho Illinois Indiana Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Nebraska New Hampshire New Mexico North Carolina Ohio Oklahoma Oregon South Carolina South Dakota Tennessee Texas Virginia Washington Wisconsin Wyoming Utah   The SSA will administer the SSP on behalf of the following states: California Delaware District of Columbia Hawaii Iowa Montana Nevada New Jersey New York Pennsylvania Rhode Island Vermont   The following states have no SSP program: Arizona Northern Mariana Islands North Dakota West Virginia   The SSA website provides conflicting information relative to Mississippi, showing both that it has an SSP program and that it does not. Operators of properties in Mississippi should contact the area Mississippi SSA office for information.