HUD Update Novogradac & Company Affordable Housing Preservation: Challenges and Opportunities
Ritz Carlton South Beach Miami, FL January 12-13, 2012 Monica H. Sussman, Esq. Nixon Peabody LLP 401 9th Street, NW, Suite 900 Washington, DC 20004 (202) 585-8000
2012 HUD Appropriations 2010 Final 2011 Final FY 2012 Minibus Final (HR2012) Signed 11/18 Section 8 Project Based $8.951 B* $9.276 B* $9.3B Section 8 Tenant Based $20.339 B** $20.702 B** 18.9 B CDBG $3.992 B $3.343 B $3.3 B HOPE VI $1.35 M $100 M $0 Public Housing Capital Fund $2.5 B $2.044 B $1.8 B Public Housing Operating Fund $4.775 B $4.626 B $3.9 B Veterans Vouchers $75 M $50 M $75 M Elderly 202 $825 M $400 M $374 M HOME $1.825 B $1.610 B $1.0 B CHOICE Neighborhoods $0 $0 $120 M TRA (RAD) $0 $0 $0 * Includes prior year advance of $400 M ** Includes prior year advance of $4 B 4
HUD Appropriations (Cont.) Congress did not pass any appropriations bills in 2010. Congress enacted seven short term funding measures between October 1, 2010 and April 13, 2011. On April 14 th, Congress passed a CR through 9/30 HR 1473. It continues terms and conditions of prior appropriations. FY2011 Appropriations bills in the works. Short term CR until November 18, 2011. Minibus Appropriations (Ag, Commerce, Transportation/HUD). Authorizing provisions include: OAHP authority until 2015. RAP/Rent Supp 1 year extension Rental Assistance Demo (RAD). 5
New HUD Initiative TRA Now RAD RAD (previously TRA and PETRA proposal) Demo for 60K for project-based rental assistance for public housing and mod rehab. Use to leverage other resources such as bonds, LIHTC to rehab the projects. Funding from transfer from public housing programs RAP, Rent Supp. & Mod Rehab. Addresses maturity of those contracts for 2012 & 2013 Can convert to tenant protection vouchers or PBV Reach back to 2006, allows project basing of tenant protection vouchers 20% PBV cap not applicable 6
New HUD Initiative TRA Now RAD Secretary can waive other provisions regarding plans, goals and 20% cap on family projects. HUD is moving quickly to implement as soon as possible. $10M for EVS or PBV s for maturing HUD insured, held or 202 project that require HUD consent to prepay, expiring RAP contracts, expiring affordability under a mortgage or preservation program restrictions in low vacancy areas; HUD trying to implement this provision similar to the RAD RAP Rent Supp. Provision. Another provision provides one year extension of RAP Rent Supp. Contracts. Ability to move HAPs and Use Agreements continue. New Budget Concern Memo Residual receipts for HAP renewals. Limit option 4 renewals to OCAF Requiring RCS to justify rents in excess of 110% of small area FMRS 7
Section 8 Renewal Update Section 8 Renewal guide being revised; comments were due November 15, 2010 Important changes that benefit owners already in effect higher rents, increased distributions Option 2 OCAF or Budget based Use current debt service Eliminate limitation on distributions (221(d)(3) 236, New Reg Section 8) For profit owner REAC Score 20 year contract or modify existing contract term to 20 years LIHPRHA allows for inclusion of new debt service Galante Waiver Memo (Feb. 2010) allows waivers to Section 8 renewal guide and regs to facilitate preservation 8
Section 8 Renewal Update (cont.) Option 1 discretionary Mark-Up-To-Market renewals, owners may request a waiver of the requirement in the Guide that allows rents to be increased up to but not exceeding the use restricted level Nonprofit owners with new regulation Section 8 HAP contracts may request a distribution (6% on initial equity investment for projects for elderly families, 10% for projects for non-elderly families) or unlimited distributions for Chapter 15 preservation renewals. The return based upon initial equity would only be applicable for properties originally developed by a for profit entity who made an initial equity contribution 9
Section 8 Renewal Update (cont.) For Chapter 15 preservation renewals Owners may request a waiver of the requirement that a project have a REAC score greater than 30 For profit owners may request to renew under Option 2 using the provisions of Chapter 15. With a 20 year HAP under Option 2, the limitation on distributions is eliminated Under Chapter 15 the owner can be advised of post rehab rents in order to facilitate the new financing. Post rehab rents become effective after the rehabilitation is completed, unless the amount of the rehab is $6,500 per unit or less if certain type of financing, in which case the rents can go into effect at renewal 10
Section 8 Renewal Update (cont.) Other Changes: Clarify that owners have a right to see/receive a copy of the RCS Amend guidance on treatment of surplus cash for Limited Distribution projects that initially mark up to market; will only receive unlimited distributions for the term of the contract Amend policy to allow retroactive rent increases assuming owner meets the required submission timeframes Clarify that project submitting a budget for exception project renewals will be able to use current debt service instead of initial debt service Clarify that OCAF rent adjustments do not require tenant notices. 11
FHA Update HUD Publishes New Multifamily Closing Documents and Regulations. The official versions will be on HUDclips, for now: http://portal.hud.gov/hudportal/hud?src=/program_offices/housing/mf h/mfhclosingdocuments New loan documents will be utilized in multifamily loan closings for which HUD issues a firm commitment for mortgage insurance on or after September 1, 2011, unless financial hardship for the borrower. While many of the rules and documents contain familiar provisions, there have been important changes. For example, additional asset management burden on lenders; and providing them with more authority in determining whether and how to implement enforcement for alleged covenant or payment violations Places new burdens on borrowers by effectively including certain principals as borrowers. 12
Section 236 IRP Decoupling More than 800 Decoupling preservation transactions since 1998 IRP subsidy buys down the prevailing interest rate to 1% IRP subsidy is a dwindling asset May still make economic sense to use decoupling process; i.e. post rehab rents, increased distributions May not want to securitize IRP subsidy but take the remaining stream of payments or smaller payments over longer period of time Potential for re-decoupling IRP; no equity takeout, rent increase, additional Use Agreement 13
Other Legislative and Policy Initiatives Section 202 Supportive Housing for the Elderly Act of 2010 (PL 111-372 ); signed January 4, 2011 Like past 2 years Appropriations allows for refi of older 202s with interest rates of 6% or below (no need for savings); authorizes new senior preservation rental assistance contracts, to be provided to the owner of a Section 202 project undergoing a refinancing and to be governed by the same rules applicable to Section 8 project-based rental assistance (no appropriation but still under CR which provided for EVs) amends the provision relating to use of proceeds resulting from a refinancing. Under the revision, all of the proceeds are to be used either: (i) to benefit the project tenants; or, (ii) to provide affordable housing and related social services for elderly persons at a HUD-assisted project by the same private nonprofit owner, private nonprofit sponsor, or private nonprofit developer 14
Other HUD Policy Updates Partial Payment of Claim ( PPC ) On September 15, 2010, HUD issued Mortgagee Letter 2010-32, which new PPC standards. New Chapter 14, Handbook 4350.1. The PPC process now requires a 20-year use agreement, with 30 percent of the units to be reserved for low-income persons. This set-aside may be reduced to 10 percent for good cause. Recasts the existing HUD-insured mortgage debt into a performing first note and a cash flow based second note. The first note is recast at 125 basis points over the 10-year treasury rate with a 1.20 debt service coverage. New comprehensive needs assessment as part of the process. The owner must contribute at least 5 percent of the original loan amount. 15
Other HUD Policy Updates (Cont.) The second note can be for up to 50 percent of the outstanding HUD debt; payable from at least 75 percent of surplus cash and will have a provision that HUD may call it and require a further restructuring or refinancing at a future date. The second note will bear interest at the applicable federal rate, will be co-terminus with the first note, and will have a 0.5 percent annual service charge so long as HUD holds that soft second note. If the owner utilizes an identity of interest company in project operations, then payments to that company are effectively deferred if surplus cash is negative. Similar but different rules for PPCs for the 232 program. Mortgagee Letter 2011-15. 16
Other HUD Policy Updates (Cont.) HUD issues new Subordination, Non-Disturbance, and Attornment guidance ( SNDA ) Notice H11-07 Provides new requirements for SNDAs. Clarifies rights between the lender, owner, and the commercial tenant. HUD requires provisions to protect residents, make sure the commercial tenant is appropriate, and also requires fair market rents. Limits restrictions imposed by the commercial tenant; limits identity-of-interest between the borrower and commercial tenant. This would also apply to rooftop leases, and this notice prohibits exclusive arrangements for cell phone, cable, or internet access facilities. 17