The Office of Affordable Housing Programs (OAHP) in HUD’s Office of Community Planning and Development (CPD) announced on May 15 the availability of a preview version of proposed changes to the HOME Investment Partnerships (HOME) program regulations. Formal publication is anticipated in the Federal Register later this month, at which time advocates will have 60 days to submit comments. Significant regulation changes were last made in 2013. NLIHC will summarize key provisions in future issues of Memo and offer a sample comment letter for advocates to consider using.
Some of the proposed changes emphasized by OAHP that are most relevant to Memo readers include:
- Significant expansion of tenant rights and protections.
- Expanded access to community housing development organizations (CHDOs).
- Making HOME tenant-based rental assistance (TBRA) work better for vulnerable populations.
- Simplified provisions and new flexibilities for community land trusts (CLTs).
- Incentives for owners to incorporate green and resilient building technologies.
This issue of Memo provides an initial summary of the key tenant rights and protections as described in the preamble and as presented in the text of the proposed rule. NLIHC will further study these rights and protections, consider input from NLIHC’s Tenant Leader Collective, and review feedback from the National Housing Law Project regarding provisions pertaining to lease addendums.
Written Lease and Addendum
The HOME rule has always required a written lease between a tenant and owner covering a period of at least one year and that incorporates a “Violence Against Women Act” (VAWA) lease term or addendum. The proposed rule adds that the written lease must have one convenient method for a tenant to communicate directly with the owner or property management staff, including in person, by telephone, email, or through a web portal; and that the lease must also have contact information for the participating jurisdictions’ (PJ) HOME program (page 69 preamble; 178 text). The proposed rule greatly expands the lease requirements for tenants occupying both HOME-assisted units (i.e. units newly constructed or rehabilitated) and HOME tenant-based rental assistance (TBRA) units, primarily through the addition of a detailed HOME tenancy addendum that contains the provisions summarized in the remainder of this Memo article.
Right to Organize
Tenants have the right to organize, create tenant associations, convene meetings, distribute literature, and post information (pages 73&74; 180). NLIHC welcomes this provision. The preamble notes that HUD’s Multifamily Housing programs have these explicit protections, which are codified at 24CFR part 245 and echoed in the Rental Assistance Demonstration (RAD) Notice pertaining to public housing converted to Project-Based Vouchers (PBVs). NLIHC will urge OAHP to issue guidance mirroring the details of part 245.
Physical Condition of Units and the Project
Owners must provide tenants with the expected timeframe for maintaining or repairing units. Owners may not charge tenants for normal wear and tear or damage to a unit or common areas. (71;179). When there is a life-threatening deficiency that cannot be repaired on the day it is identified, a tenant must be promptly relocated until repairs are completed, either to housing that is decent, safe, sanitary, and in good condition, or to suitable lodging at no cost to the tenant (71;179). If the owner controls utilities, the owner must provide tenants with uninterrupted utility service. OAHP explains that this provision is proposed to “counteract a disturbing trend of so-called ‘self-help’ evictions” whereby owners use their control of utilities to force tenants to end their tenancy (72;179).
Use and Occupancy of a Unit
Owners must provide at least two days’ notice to tenants before entering a unit during reasonable hours for routine inspections and maintenance and for making repairs or improvements, or to show the unit to prospective tenants. An owner can enter a unit anytime without advance notice if there is a reasonable belief that there is an emergency. If an owner enters when there are no adults, the owner must provide a written statement explaining the reason for the entry and the date and time of the entry (73;180). A tenant’s household must have reasonable access to and use of common areas. The preamble explains that this provision is meant to prohibit separate elevators or amenities such as gyms, pools, rooftop gardens, or play areas that are only for non-assisted tenants (73;180).
Protection against Retaliation
An owner may not retaliate against a tenant by decreasing services (such as maintenance or trash removal), interfering with a tenant’s right to privacy, or harassing a household or its guests. A tenant may exercise any right of tenancy without fear of retaliation if the tenant reports inadequate housing conditions in the unit or in the property, or if the tenant requests enforcement of the lease and any of its protections (76&77;182).
Termination of Tenancy
An owner may not terminate the tenancy of a tenant or household member, or refuse to renew a lease, except for serious or repeated violations of the terms and conditions of a lease; for violations of federal, state, or local law; or for “other good cause” (78;183).
The proposed rule states that “other good cause” may include a tenant creating a documented nuisance under state or local law, or a tenant unreasonably refusing to provide an owner access to a unit to allow repairs. For an owner to establish good cause for violation of federal, state, or local law, there must be a record of conviction for a crime – during the person’s tenancy – that has a direct bearing on the tenant’s continued occupancy of the unit (such as a violation of law that affects the safety of others living at the property). NLIHC notes that the preamble adds “during the tenancy period” but the text does not seem to be as explicit. The preamble also states that good cause cannot be based on a violation that occurred prior to tenancy. NLIHC will urge the final rule text to be as clear as the preamble discussion. The proposed rule adds that an owner shall not use a record of arrest, parole or probation, or current indictment to establish a violation of law (79-81;184).
At least 60 days before terminating a tenancy or refusing to renew a tenancy, an owner must provide a tenant with a written notice to vacate that specifies the reason for the action. An owner may not perform a “constructive eviction” (a so-called “self-help eviction”), such as locking a tenant out of their unit or stopping utilities. An owner may not create a hostile living environment or refuse to make a reasonable accommodation for a person who has a disability in order to cause the tenant to end their tenancy. An owner may not terminate a tenancy or evict a tenant or household members without instituting a civil court proceeding in which the tenant or household member has an opportunity to present a defense (81-83;184&185).
Notices
Before an owner proposes to carry out an adverse action (such as charging damages that require repair) the owner must provide a tenant with a written notice explaining the reason for the proposed adverse action. Tenants must be notified five business days before there is a change in ownership, including through foreclosure, and there must be at least 30 days’ notice before a sale or foreclosure (74&75;181).
Security Deposits
The proposed rule would establish new security deposit requirements, requiring security deposits to be no greater than two months’ rent and refundable. If an owner charges any amount against a tenant’s security deposit, the owner must provide a list of all items charged and their cost. An owner must promptly refund the security deposit, minus any amounts used to reimburse the owner for items charged (77&78;183).
Environmental, Health, and Safety Hazards
If a PJ has actual knowledge of an environmental, health, or safety hazard affecting the project, a unit, or tenants, the PJ must contact the owner and tenants, providing them with a summary of the nature, date, and scope of the hazard. The proposed rule has a similar requirement for an owner who has actual knowledge of such hazards – however, the rule does not require the owner to inform residents but only the PJ. NLIHC will urge OAHP to correct this oversight (88&89;189).
OAHP plans to add a fact sheet and Frequently Asked Questions (FAQs) to its new HOME Proposed Rule webpage. OAHP also plans to conduct virtual listening sessions. Check the HOME Proposed Rule webpage for upcoming listening sessions.
Read the preview version of the proposed HOME regulation changes at: https://tinyurl.com/4cvc3nxb
Read the HUD media announcement at: https://tinyurl.com/yzz9pjwr
Read OAHP’s HOME Proposed Rule webpage at: https://tinyurl.com/2axxrzb9
Find OAHP’s HOME Program website at: https://tinyurl.com/mssk9w6h and the HUD Exchange HOME webpage is at https://tinyurl.com/mr3stys2
Read more about the HOME program on page 5-1