HOME and the Low-Income Housing Tax Credit Guidebook

TABLE OF CONTENTS

HOME and the Low-Income Housing Tax Credit Guidebook......................................... 1

Table of Contents............................................................................................................................ 1

Introduction.................................................................................................................... 4

Purpose of this Guidebook...................................................................................................... 4

Overview of the Programs....................................................................................................... 4

Why Use HOME and LIHTC Together?................................................................................ 5

Stakeholder Motivations......................................................................................................... 5

Organization of this Guidebook.............................................................................................. 6

Chapter 1: Conduct Threshold Eligibility Review............................. 18

1.1 Overview of the HOME Program............................................................................... 18

1.2 Overview of the LIHTC Program............................................................................... 24

1.3 Preliminary Review of Project Applications for HOME-LIHTC Projects................. 33

1.4 Other Project Eligibility Criteria................................................................................. 35

1.5 The Project Timetable.................................................................................................. 36

Chapter 2: Review Financial Feasibility..................................................... 38

2.1 Overview of the Financial Feasibility Review............................................................ 38

2.2 Assessing Developer Capacity.................................................................................... 40

2.3 Reviewing the Project’s Marketability........................................................................ 42

2.4 Financial Review of HOME-LIHTC Projects............................................................ 45

2.5 Financial Analyses....................................................................................................... 46

2.6 Reviewing the Development Budget.......................................................................... 46

2.7 Assessing Sources and Uses........................................................................................ 50

2.8 Reviewing the Operating Pro Forma........................................................................... 55

2.9 Determining the Amount of HOME Subsidy............................................................. 65

2.10 Negotiating the Best Position for the PJ................................................................. 75

Attachment 2-1: Capital Needs: Saving for a Rainy Day..................... 81

Attachment 2-2: How to Determine the Minimum Number of Home- Assisted Units in a Project....................................................................................................... 84

Attachment 2-3: How to Determine the Home Cost Allocation...... 87

Chapter 3: Commit to Project and Construct Units........................... 91

3.1 Environmental Review................................................................................................ 91

3.2 HOME Written Agreements and Legal Documents................................................... 93

3.3 Property Standards.................................................................................................... 101

3.4 Inspections................................................................................................................ 104

3.5 Close-Out and Completion....................................................................................... 105

3.6 Summary of Federal Requirements........................................................................... 105

Chapter 4: Lease-Up and Project Completion........................................ 109

4.1 Income Targeting...................................................................................................... 109

4.2 Income Determinations............................................................................................. 112

4.3 Rents......................................................................................................................... 113

4.4 Recruiting and Selecting Tenants.............................................................................. 116

4.5 Leases........................................................................................................................ 118

4.6 Project Completion and Close Out........................................................................... 120

Chapter 5: Ensure Long-Term Compliance............................................... 122

5.1 Affordability/Compliance Period.............................................................................. 122

5.2 Ongoing Property Standards and Inspections.......................................................... 124

5.3 Rents......................................................................................................................... 127

5.4 Tenant Income Eligibility.......................................................................................... 129

5.5 Maintaining Unit Mix................................................................................................ 131

5.6 Terminating Leases or Tenancy................................................................................. 149

5.7 Consequences of Noncompliance............................................................................. 150

5.8 Early Intervention to Address Property Distress...................................................... 152

Chapter 6: Address Long-Term Affordability....................................... 153

6.1 HOME and LIHTC Long-Term Affordability......................................................... 153

6.2 Typical Investor Exit Strategies................................................................................ 154

6.3 PJ Mechanisms to Preserve Affordability................................................................. 156

6.4 Including Long-Term Affordability and Preservation of HOME Compliance into Development Negotiations........................................................................................................................ 160

Introduction

Purpose of this Guidebook

When developers seek financial resources for affordable rental housing development, many combine funds generated through the Low-Income Housing Tax Credit (LIHTC) offered by the Internal Revenue Service with housing block grant funds provided through the HOME Investment Partnerships (HOME) Program administered by the U.S. Department of Housing and Urban Development (HUD). This publication, HOME and the Low-Income Housing Tax Credit Guidebook, provides technical guidance to HOME Program Participating Jurisdictions (PJs) on how to assess these HOME-LIHTC applications, and how to comply with the requirements of both programs for the successful development of affordable multifamily rental projects.

While HUD has made every effort to describe the requirements of the Internal Revenue Code accurately, HUD does not have oversight of the LIHTC. PJs are cautioned that they must consult with legal and tax counsel or the Internal Revenue Service when providing HOME funds to a project funded with LIHTC to ensure that they understand the most accurate and up-to-date tax code requirements. PJs should also contact their state’s Low-Income Housing Tax Credit allocating agency.

Overview of the Programs

The HOME Program and LIHTC originate with different legislative histories and program purposes. As such, each program has relative strengths and limitations in addressing a variety of local housing conditions or needs.

The HOME Program was created in 1990 by the Cranston-Gonzalez National Affordable Housing Act. Each year, Congress allocates approximately $2 billion by formula among the states and hundreds of localities nationwide. HOME is the largest Federal block grant designed exclusively to create affordable housing for low-income households in the nation. Among other things, HOME funds may be used by PJs to provide incentives to develop rental housing through acquisition, new construction, reconstruction, or rehabilitation of non-luxury housing.

Congress created the Low-Income Housing Tax Credit in 1986 as Section 42 of the Internal Revenue Code (IRC or “the Code”) to develop a financial incentive to generate private capital for the development of affordable rental housing. LIHTCs are administered by the Internal Revenue Service (IRS) because they are tax credits, not direct funding, for affordable rental housing development. Congress gives the states authority to allocate a certain number of tax credits to eligible affordable housing ventures annually. Therefore, while Section 42 of the IRC regulates certain aspects of the LIHTC, each state also establishes certain priorities, policies, and procedures for the allocation of its housing tax credits.

LIHTC is not the only Federal tax credit that can be used for affordable housing. The IRS also offers tax credits for historic preservation (tax benefits to the project owner for maintaining the historic character of a building) and energy (tax benefits to the project owner for making energy- saving investments). In addition, several states offer their own low-income housing tax credits and/or historic preservation tax credits, which serve as a credit against the investor’s state income tax liabilities. This guidebook provides guidance only on the use of the Low-Income Housing Tax Credit based on Section 42 of the IRC. It does not provide guidance on how to use these other tax credit programs with HOME.

Why Use HOME and LIHTC Together?

HOME and LIHTC are often used together to finance affordable rental housing development. In order to establish affordable rents in many markets, a project’s rents may not adequately support sufficient conventional mortgage debt. The equity raised from the LIHTC may not be sufficient to provide all of the additional capital required by the project. Often, HOME funds can be used to finance the remaining gap.

Combining HOME and LIHTC funding also enables the developer and investors (including the PJ) to:

• Leverage scarce resources
• Develop mixed-income housing
• Reach a diverse clientele (such as very low- and low- income residents) with the same program activity.

When combining these two sources of funds, the projects must comply with the requirements of both programs. Generally, this can be achieved by complying with the most restrictive requirement. This guidebook illustrates how to do this.

Stakeholder Motivations

Generally, HOME PJs and LIHTC investors are not motivated by the same goals. The typical LIHTC investor is motivated by its financial interests. Project and investment decisions are made in the context of the tax implications and the financial impact on the investor. The investor purchases a 99.9 percent interest in the ownership entity awarded LIHTCs for which it receives a tax credit. This is a dollar-for-dollar credit against the investor’s tax liability for ten years, along with other financial benefits generated by the project such as:

• Operating losses resulting from the depreciation of the property
• Sharing of any net cash flow generated from the Net Operating Income of the project
• Benefits that may result when the investor exits the project.

PJs, on the other hand, are generally motivated by public policy objectives to provide affordable housing to meet the needs of low-income families in their communities who are rent burdened or living in substandard housing. PJs must be involved with the LIHTC project sponsors from the beginning of the development process to ensure that their policy objectives are met, to ensure long-term compliance with HOME affordability restrictions, and to negotiate the best return on the HOME investment.

Organization of this Guidebook

The organization of this guidebook mirrors the development process for an affordable rental project that uses HOME and LIHTC, from application and underwriting to project commitment and construction to lease-up and ongoing compliance during rental property management. The following chart describes these key HOME and LIHTC development steps and the associated guidebook chapters.

Organization of this Guidebook

Organization of this Guidebook II

As noted above, this guidebook discusses the HOME and LIHTC rules in the context of the development process.

A glossary of key terms and concepts is provided as an attachment to this chapter. These terms are identified throughout the guidebook in bold italics.

Glossary Of Key Terms

4 percent tax credits: 4 percent of the eligible basis is allowed as a tax credit per year for 10 years. 4 percent tax credits are available for existing housing or federally subsidized housing and are generally used in conjunction with tax-exempt bond financing. 4 percent tax credits are also referred to as 30 percent present value LIHTCs.

9 percent tax credits: 9 percent of the eligible basis is allowed as a tax credit per year for 10 years. 9 percent tax credits are also referred to as 70 percent present value LIHTCs. 9 percent tax credits are available for new construction and rehabilitation.

Absorption rate: The number of units per week or month that is projected to be leased once the property begins accepting residents. This number is expressed as a percentage of the total number of units in the property.

Accessibility for persons with disabilities: The Fair Housing Act requires accessibility for newly constructed housing. In properties with more than four units, the public and common areas, as well as all the ground floor units, and units served by an elevator must meet the Fair Housing Act accessibility guidelines. For people with sensory impairments, accessible also means that a property makes reasonable accommodations to ensure their equal access and use. HOME- assisted units are also required to meet the accessibility requirements of Section 504 of the Rehabilitation Act of 1973, which for some projects, requires that a certain number of units be made to be accessible in accordance with the Uniform Federal Accessibility Standards, for persons with mobility and sensory impairments. Generally, UFAS is a higher level of accessibility than the Fair Housing Act.

Affirmative marketing procedures: For properties of five or more HOME-assisted units, PJs must develop marketing procedures to ensure that special outreach and advertising efforts are made to communicate the availability of HOME-assisted units to those groups and individuals least likely to apply for them.

Affordability period: The period of time during which a property must comply with the HOME rules and regulations, including income and rent restrictions.

Applicable fraction: The share of the property that is LIHTC-assisted. It is based on the lesser of either: (1) the number of tax credit units to the total number of units, or (2) the square footage of the tax credit units to the total square footage of the property.

Basis boost percentage: Projects located in HUD-designated qualified census tracts or state housing finance agency-designated difficult development areas can be allocated up to 30 percent additional LIHTCs, at the discretion of the state LIHTC allocating agency. If the full 30 percent addition is allocated, the basis boost percentage is 130 percent.

Capital needs assessment: A projection of the likely timing and cost of replacement of building systems (roofing, siding, mechanical systems, appliances, etc.) Often referred to as a CNA, the analysis is expressed annually, over a 5-, 10- or 20-year period; it estimates the cost of replacements in each year.

Capture rate: The share of renter households seeking housing of that type, in that location, and at that price range, that need to be “captured” (i.e., leased) by the proposed property in order for it to succeed. For example, a capture rate of 5 percent would indicate that 5 percent of the potential, eligible renters in that market would need to become tenants.

Carryover Requirement: LIHTC projects must spend at least 10 percent of their projected total basis as of the end of the second calendar year following the year of allocation. This is sometimes referred to as the 10 percent test.

Cash flow waterfall: The priority ranking of the distribution of any surplus cash flow generated by a multifamily rental property.

Community Housing Development Organization (CHDO) : A private, nonprofit organization that meets a series of qualifications prescribed in the HOME regulations at 24 CFR Part 92.2.

Comparable units : Under the HOME Program, units that are equivalent in terms of size, amenities, and number of bedrooms. Units must be comparable in order to use them as replacement units when maintaining unit mix. The LIHTC Program uses the concept of "next available unit" for replacement units. LIHTC replacement units may be any unit in the same building, as long as the LIHTC-eligible basis square footage is maintained.

Compliance period : See LIHTC compliance period.

Cost allocation: The process used to establish the allocation of costs and the minimum number of HOME-assisted units in a HOME-assisted project, based on the amount of HOME investment.

Cost certification audit: Financial audits required by funders (including the state’s LIHTC allocating agency) to certify actual project development costs. An initial audit may be used to ensure that 10 percent of the project’s then-projected costs have been expended to meet the carryover requirement. At the completion of the project a cost certification is required to confirm the total development costs and the amount of LIHTC eligible basis in the project.

Debt service coverage ratio (DSCR): A calculation to determine the relationship between the Net Operating Income (NOI) of a project to the amount of debt service the NOI must be used to pay. To calculate DSCR divide Debt service (principal, interest, and credit enhancement payments) by NOI. The DSCR is also referred to as “DSC,” or “cover.”

Deed restriction or covenant: A legal document that restricts the use of a HOME-assisted property during the affordability period for use as affordable housing for low-or very low- income households as required at 24 CFR 92.252(e).

Deferred developer fee: The portion of the agreed-upon developer’s fee that the developer is not paid as a development expense, and instead remains in the rental project to cover development costs. The deferred developer fee may be recovered from the developer’s share of operating cash flow.

Developer : A for-profit or nonprofit entity responsible for initiating and managing the development of real estate, including the arrangement of financing, construction, and the ownership structure.

Development budget: The cost estimate for all of the costs (or “uses”) that the developer will incur to complete and lease-up or sell a project.

Direct investment: The simplest form of LIHTC investment in which a large corporation purchases the entire investor interest in the project.

Eligible basis: In LIHTC developments, certain costs may be included in the calculation on which the tax credits are based. These costs are referred to as “basis eligible” costs, and the total of these costs is “eligible basis.” Eligible basis does not include land, financing fees, syndication costs, or reserves, but does include the acquisition cost of existing buildings, construction and/or rehabilitation, and most soft costs.

Environmental Assessment (EA): A concise public document required under the National Environmental Policy Act (NEPA) regulations, for which a Federal agency (or an entity authorized to assume HUD's environmental review responsibilities) is responsible that provides sufficient evidence and analysis to determine whether to prepare an environmental impact statement or issue a finding of no significant impact (FONSI). See 24 CFR 58.36 and HUD CPD Notice 01-11.

Environmental Impact Statement (EIS) : The environmental impact statement serves as an action-forcing device to ensure that the policies and goals defined in NEPA are infused into the ongoing programs and actions of the Federal Government. It provides full and fair discussion of significant environmental impacts and informs decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. An EIS may be triggered as a result of an EA, but this is not common among tax credit projects. See 24 CFR 58.37.

Environmental review: The appropriate level of environmental analysis for a project or activity. This may include a Compliance Determination, Environmental Assessment, or Environmental

Impact Statement: It is completed in accordance with 24 CFR Part 58 (known as a “Part 58 review”) to ensure that the proposed project does not negatively impact the surrounding environment and that the property site itself is safe for development.

Exit strategy: An LIHTC investor’s plan for exiting their ownership position at the end of the 15-year tax credit compliance period.

Extended use period: In LIHTC projects, the period of affordability following the initial 15-year period. (This is also referred to as the “LIHTC use period.”) All LIHTC projects must comply with an initial use period of 15 years, during which time the investor limited partner must maintain its ownership position. At the end of the initial 15-year period, there must be an extended use period of an additional 15 years or longer (as required by the state allocating agency) during which time the property continues to be restricted to affordable low-income housing.

Fair Housing Act: See Federal Fair Housing Act.

Federal requirements: Broad Federal requirements that PJs must adhere to when administering the HOME Program. These requirements include but are not limited to fair housing, lead-based paint, Davis Bacon, accessibility standards, and the Uniform Relocation Act (URA).

Federal Fair Housing Act: Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and disability.

Financing gap: The shortfall in permanent financing sources that occurs when the total projected development costs exceeds the total of all committed sources.

Fixed HOME units: Specific rental units that are designated as HOME-assisted initially, and that retain the HOME-assisted designation throughout the HOME affordability period.

Floating HOME units: Rental units that are designated HOME-assisted initially but throughout the period of affordability the designation is allowed to change or “float” among all comparable units in the project in order to maintain the original unit mix of assisted and non-assisted units.

High HOME rent limits: The HUD-published High HOME rent limit. Current HOME rent limits are available at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

HOME written agreement: A legally binding document executed between the PJ and the owner of a project that clearly states the HOME requirements, common expectations, roles and responsibilities of the parties, and the PJ’s enforcement provisions.

Housing and Economic Recovery Act (HERA): Effective July 30, 2008, HERA primarily provides emergency assistance for the redevelopment of abandoned and foreclosed homes. HERA also amends certain key LIHTC requirements and provisions.

HUD’s Office of Affordable Housing Programs (OAHP): The HUD Department that administers three separate programs: the HOME Investment Partnerships, Self-Help Homeownership (SHOP), and Homeownership Zone. These programs are designed to address the nationwide shortage in affordable housing through the development of affordable housing units and the provision of assistance to income-eligible households in the purchase, rehabilitation, or rental of safe and decent housing.

Income recertification : The requirement that the owner/developer determine tenant incomes for income-restricted units to ensure that such households’ incomes do not exceed the current income limits. The income recertification requirements for HOME and LIHTC are slightly different.

Income targeting: The process of designating units by the income of their occupants. These requirements apply to the HOME- assisted and LIHTC-assisted units of a property.

Labor standards: The federally-regulated labor standards that apply to HOME-funded projects. Davis-Bacon requirements apply to projects with 12 or more HOME-assisted units. Projects funded solely by LIHTC are not subject to the labor standards.

Lead-based paint: Prior to 1978, lead-based paint was used in residential construction. Pre-1978 properties that are being rehabilitated using HOME and LIHTC must comply with the lead-based paint regulations at 24 CFR Part 35 and meet the HUD Uniform Property Conditions Standards (UPCS)

Lien position: The order of priority in which lenders’ claims and rights are recognized on a property.

Limited liability corporations (LLCs): A legal ownership structure of two or more owners. Typically one owner (known as a “member”) is designated as the “managing member” who makes most day-to-day decisions. In an LIHTC project, the tax credit investor member(s) typically is not involved in day-to-day decision-making, but is involved in major decisions such as sales or refinancing.

Limited partnerships: A legal ownership structure similar to LLCs, except that the managing owner is called the “general partner” and the investor(s) owner is called a “limited partner.” Some limited partnerships have more than one general partner, in which case one of the general partners is usually the managing general partner who makes most of the day-to-day decisions.

Low HOME rent limits: The HUD-published Low HOME rent limit. Current HOME rent limits are available at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

Low-income household: A household with a gross annual income that does not exceed 80 percent of area median income (AMI), as adjusted by household size. Current HOME income limits are available at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

LIHTC basis : See Eligible basis.

LIHTC compliance period: The initial use period of 15 years, during which time the investor limited partner must maintain its ownership position, and during which time the failure to comply with certain LIHTC requirements may result in the cancellation or retroactive recapture of allocated low-income housing tax credits.

LIHTC period: The 10-year period over which the investor may claim the LIHTCs. This is also sometimes referred to as the “credit period.” This is not the same as the 15-year compliance period.

LIHTC rent limits: The maximum rent that can be charged to tenants in an LIHTC-assisted unit. It is limited to 30 percent of the applicable income limitation less utilities.

Market study: An analysis of a specific housing market to determine the demand for housing units of a particular type and at a particular rent.

Maximum per unit subsidy limit: The upper limit restriction on the amount of HOME funds that may be invested in a project; it is usually capped at the 221(d)(3) limit. These limits are available at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

Mortgage (or a deed of trust in some states) : The legal document executed between a lender and an owner to subject a property to a claim or obligation.

National Affordable Housing Act of 1990: Title II of the Cranston-Gonzalez National Affordable Housing Act (the HOME Investment Partnerships Act) which helps to expand the supply of decent, affordable housing for low- and very low-income families by providing grants to states and local governments called participating jurisdictions or "PJs.”

Net Operating Income (NOI) : The amount of income remaining on a property after payment of all operating expenses.

Net Syndication Price: The amount the investor pays for the low-income housing tax credits that will be generated by the operation of the property. Price is expressed as an amount of one dollar in credit allocation, so that an investor willing to buy $1 million of credits over ten years for $750,000 is said to be paying $0.75 (seventy-five cents), or 75/100, or 75 percent.

Net Syndication Proceeds: The total dollar amount that the LIHTC investor pays the LIHTC project sponsor. It is based on the total project allocated credit amount multiplied by the net syndication price.

Note: A written promise to pay a legal debt.

Onsite inspection: A physical inspection of a unit and/or property in order to determine that the property complies with HOME and/or LIHTC property standard requirements.

Operating pro forma : A year-by-year projection of a project’s income and expenses.

Over-income tenant: A designation for a tenant when their household income exceeds the income limits of the HOME and/or LIHTC programs. The definition of “over-income” differs between the programs.

Owner: A for-profit or nonprofit entity that holds title to the property after rehabilitation, construction, or acquisition.

Pari passu: Contribution of funds during development at an equal rate or pace, among all funders. Pari passu is often relied upon in complex financial structures with more than one major lender, to ensure that all funders have proportionately equal risk during construction.

Participating Jurisdiction (PJ): Any state, local government, or consortium that HUD has designated to receive HOME funds and administer a HOME program. HUD designation as a PJ occurs if a state or local government meets the funding thresholds, notifies HUD that it intends to participate in the program, and has a HUD-approved Consolidated Plan.

Payment priority: The sequence in which payments of net cash flow from the operations of a property are made to lenders, investors, and owners. See also “cash flow waterfall.”

Placed in service: Also referred to as the “placed in service date” or “PISD.” Placement in service occurs when the first unit in an LIHTC building is certified as suitable for occupancy under state or local law. Placement in service requirements differ for newly constructed and rehabilitated buildings, and dictate the beginning of the compliance period in an LIHTC project. Projects must be placed in service by the end of the second calendar year following the year of allocation.

Program income: Gross income received by the PJ, state recipient, or a subrecipient directly generated from the use of HOME funds or matching contributions.

Program Rule: At initial occupancy, 90 percent of the households served across all of the PJ’s HOME-assisted rental programs must have annual gross incomes that are at or below 60 percent of area median income. For each project, the PJ needs to determine how this rule applies. Many PJs restrict initial occupancy of High HOME Rent units to tenants that have annual gross incomes that do not exceed 60 percent of area median income.

Project control : The entity with decision-making authority for the project.

Project Rule: At initial occupancy and throughout the period of affordability, in projects with five or more HOME-assisted units, 20 percent of the households that occupy HOME-assisted units must be very low-income (that is, have annual gross incomes that are at or below 50 percent of area median income) and be charged rents that do not exceed the applicable low- HOME rent.

Property standards: Both the HOME and LIHTC programs require that units be constructed, rehabilitated, and maintained to meet specified physical standards. The standard requirements differ slightly for the two programs.

Qualified Allocation Plan (QAP) : The annual plan developed by each state allocating agency to document how it plans to make tax credits and tax-exempt bond financing available to developers.

Qualified basis : The result of multiplying the amount of Eligible Basis (total tax credit eligible costs) by the Applicable Fraction (the percentage of the property actually restricted to income- qualified households). In LIHTC properties, the qualified basis is the amount used for determining the credits that will be generated by the property.

Reservation (of credits): The notification from the state’s LIHTC allocating agency that a rental project has been approved for an allocation of credits, and that those credits will be held for the project pending construction and other requirements.

Reserves for Replacement: Funds held in a property’s restricted account to pay for its future capital replacement needs. The term may apply to the amount held in the restricted account, or the amount required to be periodically deposited to that account from the operations of the property.

Right of First Refusal: The right to purchase a limited partners’ interest in a property, which supersedes the rights of other potential purchasers.

Section 42 of the Internal Revenue Code (IRC or “the Code”) : The section of the Internal Revenue Code that regulates the LIHTC.

Sources and uses statement: A financial statement that projects and itemizes all of the uses of funds needed to complete a project (development costs) and all of the sources of funds available to cover those costs.

Source documentation: Third party verification of income provided by independent sources that is used to verify/determine tenant income-eligibility.

Sponsors: Under HOME, a for-profit or nonprofit entity that works with other organizations— such as other nonprofits—to assist them to develop and own housing. At project completion, the sponsor turns over title to the property to the sponsored organization. Under LIHTC, developers are referred to as “project sponsors.”

Subordinate: To place below the rights of another set of requirements.

Subrecipient: A public agency or nonprofit organization selected by a PJ to administer all or a portion of its HOME program.

Subsidy layering analysis: A financial review conducted by PJs when HOME funds are used with other public funds in a project. It is done to verify that the project meets the underwriting and cost guidelines established by the PJ and to ensure that no more HOME funds are invested than are necessary to develop the housing.

Surplus cash : Cash that is not needed to meet operational requirements.

Syndicated transaction : The investor interest purchased by a fund or investor pool composed of many corporations.

Syndication Fees: A fee the owner of an LIHTC project pays a syndicator to serve as a broker between the equity investor and the developer.

Syndicator: An entity who arranges the housing credit investment, and represents the investors’ interests in the terms of the financial and legal structure of the investment.

Technical Guide for Determining Income and Allowances for the HOME Program : A HUD guidebook in its Third Edition (HUD 1780-CPD, issued January 2005) that provides instructions and forms to determine tenant income for the HOME Program. This guide is available at no cost from the HOME Program website at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

Temporarily out of compliance: A situation in which an assisted unit is otherwise in compliance with the provisions of the HOME regulations and written agreement except that increases in the household’s income have exceeded the allowable limit, and a replacement income-restricted unit has not become available. In the HOME and LIHTC programs, the definition of “over-income” differs.

Threshold review: Preliminary screening of a project to ensure it meets all of the HOME and/or LIHTC eligibility requirements.

Total development cost: The total development cost (projected or actual), representing all costs necessary to produce a completed, occupied project.

Total LIHTCs : This is the total dollar value of LIHTCs that the owner is expected to receive over the ten-year credit period. It is based on the project’s qualified basis multiplied by the applicable LIHTC percentage multiplied by ten years.

UFAS standard : The Uniform Federal Accessibility Standards are Federal accessibility design requirements that apply to facilities that are designed, built, or altered with Federal funds.

Section 504 of the Rehabilitation Act of 1973 imposes the UFAS standard on certain HOME- assisted units.

Unit mix: The range of unit types, sizes, rent, and occupancy restrictions of all rental units at a property.

Utility allowances: In both the HOME and LIHTC programs, the maximum rent amount allowed in both programs includes utilities. In projects where the tenants pay for some or all of the utilities, a utility allowance is deducted from the rent limits to determine the maximum lease rent that can be charged for the unit. LIHTC and HOME may use different utility allowances.

The PJ can choose to adopt the LIHTC utility allowance for its tax credit projects, to simplify this process.

Very low-income household: A household with an annual gross income that does not exceed 50 percent of the area median income, as adjusted by household size.

Chapter 1: Conduct Threshold Eligibility Review

This chapter describes the initial steps the HOME Participating Jurisdiction (PJ) should take when it receives a request for HOME funding for a project that has (or expects to have) an allocation of Federal Low-Income Housing Tax Credits (LIHTCs). It highlights the key areas that a PJ should assess when undertaking a basic eligibility threshold review before proceeding to underwrite the project. Specifically, this chapter:

• Explains the general HOME Program rules
• Increase the supply of decent, affordable housing to low- and very low-income households
• Expand the capacity of nonprofit housing providers

1.1 Overview of the HOME Program

Created by the National Affordable Housing Act of 1990 (NAHA), HOME is the largest Federal block grant available to communities to create affordable housing. The intent of the HOME Program is to:

• Increase the supply of decent, affordable housing to low- and very low-income households
• Expand the capacity of nonprofit housing providers
• Strengthen the ability of state and local governments to provide housing
• Leverage private sector participation.

Every year, the U.S. Department of Housing and Urban Development (HUD) determines the amount of HOME funds that states and local governments — the PJs — are eligible to receive using a formula designed to reflect relative housing need. The HOME regulations may be found on HUD’s Office of Affordable Housing Programs website at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/, and in the Code of Federal Regulations at 24 CFR Part 92.

HOME Program Partners

To ensure success in providing affordable housing opportunities, the HOME Program requires PJs to establish new partnerships and maintain existing partnerships. Partners play different roles at different times, depending upon the project or activity being undertaken with HOME funds.

Key program partners include:

• Participating Jurisdiction. A Participating Jurisdiction (PJ) is any state, local government, or consortium that has been designated by HUD to administer a HOME program.
• Community Housing Development Organization . A community housing development organization (CHDO) is a private, nonprofit organization that meets a series of qualifications prescribed in the HOME regulations at 24 CFR 92.2. Each PJ must use a minimum of 15 percent of its annual allocation for housing that is owned, developed, or sponsored by CHDOs. PJs evaluate organizations’ qualifications and designate them as CHDOs.
• Subrecipient. A subrecipient is a public agency or nonprofit organization selected by a PJ to administer all or a portion of its HOME program.
• Developers, owners, and sponsors. Developers , owners, and sponsors of housing developed with HOME funds may be for-profit or nonprofit entities. Developers are the entities responsible for putting the housing deal together. Owners are the entities that hold title to the property after rehabilitation, construction, or acquisition. Sponsors work with other organizations—such as other nonprofits—to assist them to develop and own housing. At project completion, sponsors turn over title to the property to the other organization.
• Private lenders. Most HOME projects leverage or involve other financing, from for-profit lenders or other entities such as foundations or community groups.
• Third-party contractors. Third-party contractors include a range of other entities that might work on the HOME program, such as architects, planners, construction managers, real estate agents, or consultants.

HOME-Eligible Program Activities

HOME funds can be used to support four general affordable, non-luxury housing activities:

• Homeowner Rehabilitation. HOME funds may be used to assist existing owner-occupants with the repair, rehabilitation, or reconstruction of their homes.
• Homebuyer activities. PJs may finance the acquisition and/or rehabilitation, or new construction of homes for homebuyers.
• Rental housing. Affordable rental housing may be acquired and/or rehabilitated, or constructed.
• Tenant-based rental assistance (TBRA). Financial assistance for rent, security deposits, and, under certain conditions, utility deposits may be provided to tenants. Assistance for utility deposits may only be provided in conjunction with a TBRA security deposit or monthly rental assistance program.

Prohibited Activities and Costs

HOME funds may not be used to support the following activities and costs:

• Project reserve accounts. HOME funds may not be used to provide project reserve accounts (except for initial operating deficit reserves) or to pay for operating subsidies.
• Tenant-based rental assistance for certain purposes. HOME funds may not be used for certain mandated existing Housing Choice Voucher Program (formerly known as Section 8) uses, such as Housing Choice Voucher rent subsidies for troubled HUD-insured projects.
• Match for other Federal programs. HOME funds may not be used as the “nonfederal” match for other Federal programs except to match McKinney Act funds.
• Development, operations, or modernization of public housing. HOME funds cannot be used alone or in conjunction with HUD-funded public housing program funds (e.g., Public Housing capital programs such as Development, Comprehensive Improvements Assistance Program (CIAP), or Comprehensive Grant Program (CGP)) to acquire, rehabilitate, or construct public housing units.
• Double-dipping. During the first year after project completion, the PJ may commit additional funds to a project. After the first year, no additional HOME funds may be provided to a HOME-assisted project during the relevant period of affordability, with the following exceptions:
• PJs can renew tenant-based rental assistance to families.
• PJs may provide tenant-based rental assistance to families that will occupy housing previously assisted with HOME funds.
• PJs may assist a homebuyer with HOME funds to acquire a unit that was previously assisted with HOME funds.
• Acquisition of PJ-owned property. A PJ may not use HOME Program funds to reimburse itself for property in its inventory or property purchased for another purpose. However, in anticipation of a HOME project, a PJ may use HOME funds to:
• Acquire property
• Reimburse itself for property acquired with other funds, specifically for a HOME project.
• Project-based rental assistance. HOME funds may not be used for rental assistance if receipt of funds is tied to occupancy in a particular project. Funds from another source, such as a Housing Choice Voucher, may be used for this type of project-based assistance in a HOME-assisted unit. Further, HOME funds may be used for other eligible costs, such as rehabilitation, in units receiving project-based assistance from another source—for example, Housing Choice Voucher or state-funded project-based assistance.
• Pay for delinquent taxes, fees, or charges. HOME funds may not be used to pay delinquent taxes, fees, or charges on properties to be assisted with HOME funds.

HOME Project Requirements

The HOME Program is designed to provide affordable housing to low-income and very low- income families and individuals. Therefore, the program has some key restrictions that are designed to foster HUD’s commitment to long-term affordable housing, quality units, and reasonable costs. These key restrictions include:

• Income eligibility and verification
• Occupancy and rent requirements
• Subsidy limits
• Affordability periods
• Property standards.

Beneficiaries of HOME funds—homebuyers, homeowners, or tenants—must below-income or very low-income. A“low-income household” has an annual gross income that does not exceed 80 percent of area median income (AMI), as adjusted by household size. A “very low-income household” has an annual gross income that does not exceed 50 percent of AMI, as adjusted by household size.

Occupancy and Rent Requirements

In projects assisted with HOME funds, the HOME-assisted units must meet the occupancy and rent requirements of the HOME Program. These requirements are explained in detail in Chapter 2.

Subsidy Limits

HOME establishes minimum and maximum amounts of HOME funds that may be invested in any project. The minimum amount of HOME funds is $1,000 multiplied by the number of HOME-assisted units in the project. The minimum relates only to the HOME funds, and not to any other funds that might be used for project costs.

The maximum per unit HOME subsidy limit varies by PJ. Annually, HUD determines the maximum amounts, which are based on HUD’s Section 221(d)(3) program limits for the metropolitan area. These limits are available at the HOME Program website at https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/.

Affordability Periods

To ensure that HOME investments yield affordable housing over the long term, HOME imposes rent and occupancy requirements for the duration of an affordability period. For homebuyer and rental projects, the length of the affordability period depends on the amount of HOME assistance to the project or buyer, and the nature of the activity funded. Throughout the affordability period, income-eligible households must occupy the HOME-assisted housing.

Property Standards

HOME-funded properties must meet certain minimum property standards:

• State and local standards. State and local codes and ordinances apply to any HOME-funded project regardless of whether the project involves acquisition, rehabilitation, or new construction.
• Model codes. ¹ For rehabilitation or new construction projects where there are not state or local building codes, the PJ must use one of the following three national model codes:
• Uniform Building Code (ICBO), National Building Code (BOCA), Standard Southern Building Code (SBCCI)
• Council of American Building Councils (CABO) one or two family code
• Minimum Property Standards (MPS) in 24 CFR 200.925 or 200.926.
• Housing quality standards. For acquisition-only projects, if there are no state or local codes or standards, the PJ must enforce Housing Choice Voucher Housing Quality Standards (previously Section 8 HQS).
• Rehabilitation standards. Each PJ must develop written rehabilitation standards to apply to all HOME-funded rehabilitation work. These standards are similar to work specifications, and generally describe the methods and materials to be used when performing rehabilitation activities.
• Uniform Federal Accessibility Standards. The UFAS standards apply to new construction and substantially altered rehabilitation, in accordance with Section 504 of the Rehabilitation Act of 1973.
• International Energy Conservation Code and Site and Neighborhood Standards , for new construction projects.

HOME Administrative Requirements

HOME imposes certain administrative requirements related to the eligibility of administrative and planning costs, match, and commitment and expenditure deadlines.

1 Since the promulgation of the HOME Program regulations, these code issuing agencies have merged to form the International Code Council (ICC). The model codes used for the HOME Program are no longer being updated. In their stead, the ICC has issued the International Building Code. HUD will consider whether changes to the HOME regulations incorporating the International Building Code are appropriate. The HOME Program website provides updated information on all HOME requirements. (See https://www.hud.gov/program_offices/comm_planning/affordablehousing/programs/home/. ) For more information about the International Building Code, see www.iccsafe.org.

Administrative and Planning Costs

Each PJ may use up to 10 percent of each year’s HOME allocation for reasonable administrative and planning costs. In addition, up to 10 percent of program income deposited in a PJ’s local HOME account during a program year may be used for administrative and planning costs. PJs, state recipients, and subrecipients may incur administrative and planning costs.

Match

The HOME Program requires that PJs contribute an amount equal to no less than 25 percent of the total HOME funds drawn down in a year for project costs as a permanent contribution to affordable housing. PJs incur a match obligation only for project funds, not for administrative, operating, or capacity-building expenditures. Although the obligation is incurred per dollar expended in the project, match credit can be invested in any HOME-eligible project, whether the project receives HOME funds or not. Match funds can be contributed in many different forms, including cash; value of waived taxes or fees; value of donated land or property; or donated goods, services, materials, or equipment.

Commitment and Expenditure Deadlines

The HOME Program encourages PJs to expend their affordable housing funds expeditiously by imposing two deadlines. HOME funds for a given program year must be committed to HOME projects within two years of signing the HOME Investment Partnerships Agreement. For CHDO set-aside funds, PJs must reserve funds for use by CHDOs within that 24-month period. In addition, generally HOME funds must be expended within five years of receipt of funds. FY 2012 HOME funds must be spent within four years, in accordance with the Consolidated and Further Continuing Appropriations Act of 2012 (P.L 112-55).

1.2 Overview of the LIHTC Program

Before considering a HOME funding request for a project that has, or is expected to have, LIHTCs, PJ staff should become familiar with what LIHTCs are and how the LIHTC program works.

What is a Low-Income Housing Tax Credit?

The U.S. Congress authorizes each state to allocate a certain number of Federal low-income housing tax credits (LIHTCs) and issue up to a specified amount of tax-exempt bond financing annually. The state’s allocation threshold is based on its population. Internal Revenue Service rules found at Section 42 of the Internal Revenue Code (IRC, or “the Code”) govern the LIHTC program. Each state establishes additional requirements and program priorities for the credits it administers.

The state reserves LIHTCs for approved affordable housing projects that meet certain affordability criteria for up to 30 years. These Federal tax credits are sold to investors as a way to raise cash equity for eligible affordable housing projects. In exchange for cash up-front, the investor receives a tax credit (dollar for dollar reduction in its Federal tax liability) each year for a period of ten years. The IRS enforces compliance with the LIHTC affordability restrictions for 15 years. The LIHTC compliance period is the 15-year period during which a project must continue to comply with the various LIHTC requirements to avoid any tax credit recapture. The compliance period begins with the first taxable year in the credit period. The extended use period is a date specified by either the LIHTC allocating agency or 15 years after the close of the compliance period. During this extended period, the use of the property is restricted to affordable low-income housing.

There are two forms of Federal LIHTCs, known as9 percent and 4 percent tax credits. 9 percent tax credits, also referred to as “70 percent present value LIHTCs,” are available for new construction and rehabilitation. 4 percent tax credits, also referred to as “30 percent present value LIHTCs,” are available for existing housing or federally subsidized housing and are generally used in conjunction with tax-exempt bond financing. In an acquisition and substantial rehabilitation proj

Give us a call to discuss your labor compliance requirements: 916-234-3958.

This email is intended for general information purposes only and should not be construed as legal advice
or legal opinions on any specific facts or circumstances.