Owners play a major role in the HCV program by supplying decent, safe, and sanitary housing for participating families.
The term “owner” refers to any person or entity with the legal right to lease or sublease a unit to a participant in the HCV program [24 CFR 982.4(b)]. The term “owner” includes a principal or other interested party [24 CFR 982.453; 24 CFR 982.306(f)], such as a designated agent of the owner.
Owners have numerous responsibilities under the program, including screening and leasing to families, maintaining the dwelling unit, enforcing the lease, and complying with various contractual obligations.
The chapter is organized in two parts:
Part I: Owners in the HCV Program. This part discusses the role of an owner in the PHA’s HCV program and highlights key owner rights and responsibilities.
Part II: HAP Contracts. This part explains provisions of the HAP contract and the relationship between the PHA and the owner as expressed in the HAP contract.
For detailed information about HCV program responsibilities and processes, including PHA policies in key areas, owners will need to refer to several other chapters in this plan. Where appropriate, Chapter 13 will reference the other chapters.
PART I. OWNERS IN THE HCV PROGRAM
13-I.A. OWNER RECRUITMENT AND RETENTION [HCV GB, pp. 2-4 to 2-6]
PHAs are responsible for ensuring that very low income families have access to all types and ranges of affordable housing in the PHA’s jurisdiction, particularly housing outside areas of poverty or minority concentration. A critical element in fulfilling this responsibility is for the PHA to ensure that a sufficient number of owners, representing all types and ranges of affordable housing in the PHA’s jurisdiction, are willing to participate in the HCV program.
To accomplish this objective, PHAs must identify and recruit new owners to participate in the program.
BHHC will conduct owner outreach to ensure that owners are familiar with the program and its advantages. BHHC will actively recruit property owners with property located outside areas of poverty and minority concentration. These outreach strategies will include:
Distributing printed material about the program to property owners and managers
Contacting property owners and managers by phone or in-person
Holding owner recruitment/information meetings at least once a year
Participating in community based organizations comprised of private property and apartment owners and managers
Developing working relationships with owners and real estate brokers associations
Outreach strategies will be monitored for effectiveness, and adapted accordingly.
In addition to recruiting owners to participate in the HCV program, the PHA must also provide the kind of customer service that will encourage participating owners to remain active in the program.
BHHC activities that may affect an owner’s ability to lease a unit will be processed as rapidly as possible, in order to minimize vacancy losses for owners.
BHHC will provide owners with a handbook that explains the program, including HUD and BHHC policies and procedures, in easy-to-understand language.
BHHC will give special attention to helping new owners succeed through activities such as:
Providing the owner with a designated BHHC contact person.
Coordinating inspection and leasing activities between BHHC, the owner, and the family.
Initiating telephone contact with the owner to explain the inspection process, and providing an inspection booklet and other resource materials about HUD housing quality standards.
Providing other written information about how the program operates, including answers to frequently asked questions.
Additional services may be undertaken on an as-needed basis, and as resources permit.
13-I.B. BASIC HCV PROGRAM REQUIREMENTS
HUD requires the PHA to assist families in their housing search by providing the family with a list of landlords or other parties known to the PHA who may be willing to lease a unit to the family, or to help the family find a unit. Although the PHA cannot maintain a list of owners that are pre-qualified to participate in the program, owners may indicate to the PHA their willingness to lease a unit to an eligible HCV family, or to help the HCV family find a unit [24 CFR 982.301(b)(11)].
Owners that wish to indicate their willingness to lease a unit to an eligible HCV family or to help the HCV family find a unit must notify BHHC. BHHC will maintain a listing of such owners and provide this listing to the HCV family as part of the informational briefing packet
When a family approaches an owner to apply for tenancy, the owner is responsible for screening the family and deciding whether to lease to the family, just as the owner would with any potential unassisted tenant. BHHC has no liability or responsibility to the owner or other persons for the family’s behavior or suitability for tenancy. See chapters 3 and 9 for more detail on tenant family screening policies and process.
If the owner is willing, the family and the owner must jointly complete a Request for Tenancy Approval (RFTA, Form HUD 52517), which constitutes the family's request for assistance in the specified unit, and which documents the owner's willingness to lease to the family and to follow the program’s requirements. When submitted to BHHC, this document is the first step in the process of obtaining approval for the family to receive the financial assistance it will need in order to occupy the unit. Also submitted with the RFTA is a copy of the owner’s proposed dwelling lease, including the HUD-required Tenancy Addendum (Form HUD-52641-A). See Chapter 9 for more detail on request for tenancy approval policies and process.
HUD regulations stipulate requirements for the approval of an assisted tenancy.
The owner must be qualified to participate in the program [24 CFR 982.306]. Some owners are precluded from participating in the program, or from renting to a particular family, either because of their past history with this or another federal housing program, or because of certain conflicts of interest. Owner qualifications are discussed later in this chapter.
The selected unit must be of a type that is eligible for the program [24 CFR 982.305(a)]. Certain types of dwelling units cannot be assisted under the HCV program. Other types may be assisted under certain conditions. See chapter 9 for more detail on unit eligibility policies and process.
The selected unit must meet HUD’s Housing Quality Standards (HQS) and/or equivalent state or local standards approved by HUD [24 CFR 982.305(a)]. BHHC will inspect the owner’s dwelling unit at various stages of HCV program participation, to ensure that the unit continues to meet HQS requirements. See chapter 8 for a discussion of the HQS standards, as well as the process for HQS inspections at initial lease-up and throughout the family’s tenancy.
BHHC must determine that the proposed rent for the unit is reasonable [24 CFR 982.305(a)]. The rent must be reasonable in relation to comparable unassisted units in the area and must not be in excess of rents charged by the owner for comparable, unassisted units on the premises. See chapter 8 for a discussion of requirements and policies on rent reasonableness, rent comparability and the rent reasonableness determination process.
At initial lease-up of a unit, if the gross rent exceeds the applicable payment standard, BHHC must ensure that the family share does not exceed 40 percent of the family’s monthly adjusted income [24 CFR 982.305(a)]. See chapter 6 for a discussion of the calculation of family income, family share of rent and HAP.
The dwelling lease must comply with all program requirements [24 CFR 982.308]. Owners are encouraged to use their standard leases when renting to an assisted family. The HUD Tenancy Addendum, includes the HUD requirements governing the tenancy and must be added word-for-word to the owner’s lease. See chapter 9 for a discussion of the dwelling lease and tenancy addendum, including lease terms and provisions.
BHHC and the owner execute a Housing Assistance Payment (HAP) Contract (Form HUD-52641). The HAP contract format is prescribed by HUD. See chapter 9 for a discussion of the HUD requirements for execution of the HAP contract.
13-I.C. OWNER RESPONSIBILITIES [24 CFR 982.452, Pub.L. 109-162]
The basic owner responsibilities in the HCV program are outlined in the regulations as follows:
· Compliance with all of the owner's obligations under the Housing Assistance Payments (HAP) contract and the lease
· Performing all management and rental functions for the assisted unit, including selecting a voucher-holder to lease the unit, and deciding if the family is suitable for tenancy of the unit
· Maintaining the unit in accordance with the Housing Quality Standards (HQS), including performance of ordinary and extraordinary maintenance
· Complying with equal opportunity requirements
· Preparing and furnishing to the PHA information required under the HAP contract
· Collecting the security deposit, the tenant rent and any charges for unit damage by the family.
· Enforcing tenant obligations under the dwelling lease
· Paying for utilities and services that are not the responsibility of the family as specified in the lease
· Allow reasonable modifications to a dwelling unit occupied or to be occupied by a disabled person [24 CFR 100.203]
· Comply with the Violence Against Women Reauthorization Act of 2013 (VAWA) when screening and terminating tenants.
13-I.D. OWNER QUALIFICATIONS
The PHA does not formally approve an owner to participate in the HCV program. However, there are a number of criteria where the PHA may deny approval of an assisted tenancy based on past owner behavior, conflict of interest, or other owner-related issues. No owner has a right to participate in the HCV program [24 CFR 982.306(e)].
Owners Barred from Participation [24 CFR 982.306(a) and (b)]
The PHA must not approve the assisted tenancy if the PHA has been informed that the owner has been debarred, suspended, or subject to a limited denial of participation under 24 CFR part 24. HUD may direct the PHA not to approve a tenancy request if a court or administrative agency has determined that the owner violated the Fair Housing Act or other federal equal opportunity requirements, or if such an action is pending.
Leasing to Relatives [24 CFR 982.306(d), HCV GB p. 11-2]
The PHA must not approve an a tenancy if the owner is the parent, child, grandparent, grandchild, sister, or brother of any member of the family. The PHA may make an exception as a reasonable accommodation for a family member with a disability. The owner is required to certify that no such relationship exists. This restriction applies at the time that the family receives assistance under the HCV program for occupancy of a particular unit. Current contracts on behalf of owners and families that are related may continue, but any new leases or contracts for these families may not be approved.
Conflict of Interest [24 CFR 982.161; HCV GB p. 8-19]
The PHA must not approve a tenancy in which any of the following classes of persons has any interest, direct or indirect, during tenure or for one year thereafter:
· Any present or former member or officer of the PHA (except a participant commissioner)
· Any employee of the PHA, or any contractor, subcontractor or agent of the PHA, who formulates policy or who influences decisions with respect to the programs
· Any public official, member of a governing body, or State or local legislator, who exercises functions or responsibilities with respect to the programs
· Any member of the Congress of the United States
HUD may waive the conflict of interest requirements, except for members of Congress, for good cause. The PHA must submit a waiver request to the appropriate HUD Field Office for determination.
Any waiver request submitted by the PHA must include the following [HCV Guidebook pp.11-2 and 11-3]:
· Complete statement of the facts of the case;
· Analysis of the specific conflict of interest provision of the HAP contract and justification as to why the provision should be waived;
· Analysis of and statement of consistency with state and local laws. The local HUD office, the PHA, or both parties may conduct this analysis. Where appropriate, an opinion by the state’s attorney general should be obtained;
· Opinion by the local HUD office as to whether there would be an appearance of impropriety if the waiver were granted;
· Statement regarding alternative existing housing available for lease under the HCV program or other assisted housing if the waiver is denied;
· If the case involves a hardship for a particular family, statement of the circumstances and discussion of possible alternatives;
· If the case involves a public official or member of the governing body, explanation of his/her duties under state or local law, including reference to any responsibilities involving the HCV program;
· If the case involves employment of a family member by the PHA or assistance under the HCV program for an eligible PHA employee, explanation of the responsibilities and duties of the position, including any related to the HCV program;
· If the case involves an investment on the part of a member, officer, or employee of the PHA, description of the nature of the investment, including disclosure/divestiture plans.
Where the PHA has requested a conflict of interest waiver, the PHA may not execute the HAP contract until HUD has made a decision on the waiver request.
In considering whether to request a conflict of interest waiver from HUD, BHHC will consider certain factors; such as consistency of the waiver with state and local laws,; the existence of alternative housing available to families,; the individual circumstances of a particular family,; the specific duties of individuals whose positions present a possible conflict of interest,; the nature of any financial investment in the property and plans for disclosure/divestiture,; and the possible appearance of impropriety.
Owner Actions That May Result in Disapproval of a Tenancy Request [24 CFR 982.306(c)]
HUD regulations permit the PHA, to disapprove a request for tenancy for various actions and inactions of the owner.
If the PHA disapproves a request for tenancy because an owner is not qualified, it may not terminate the HAP contract for any assisted families that are already living in the owner’s properties unless the owner has violated the HAP contract for those units [HCV GB p. 11-4].
BHHC will refuse to approve a request for tenancy if BHHC becomes aware that any of the following are true:
The owner has violated obligations under a HAP contract under Section 8 of the 1937 Act (42 U.S.C. 1437f);
The owner has committed fraud, bribery or any other corrupt or criminal act in connection with any federal housing program;
The owner has engaged in any drug-related criminal activity or any violent criminal activity;
The owner has a history or practice of non-compliance with the HQS for units leased under the tenant-based programs, or with applicable housing standards for units leased with project-based Section 8 assistance or leased under any other federal housing program;
The owner has a history or practice of failing to terminate tenancy of tenants of units assisted under Section 8 or any other federally assisted housing program for activity engaged in by the tenant, any member of the household, a guest or another person under the control of any member of the household that: (i) Threatens the right to peaceful enjoyment of the premises by other residents; (ii) Threatens the health or safety of other residents, of employees of the PHA, or of owner employees or other persons engaged in management of the housing; (iii) Threatens the health or safety of, or the right to peaceful enjoyment of their residences, by persons residing in the immediate vicinity of the premises; or (iv) Is drug-related criminal activity or violent criminal activity;
The owner has a history or practice of renting units that fail to meet state or local housing codes; or
The owner has not paid state or local real estate taxes, fines, or assessment.
In considering whether to disapprove owners for any of the discretionary reasons listed above, BHHC will consider any mitigating factors. Such factors may include, but are not limited to, the seriousness of the violation in relation to program requirements, the impact on the ability of families to lease units under the program, health and safety of participating families, among others. Upon consideration of such circumstances, BHHC may, on a case-by-case basis, choose to approve an owner.
Legal Ownership of Unit
The following represents PHA policy on legal ownership of a dwelling unit to be assisted under the HCV program.
BHHC will only enter into a contractual relationship with the legal owner of a qualified unit. No tenancy will be approved without acceptable documentation of legal ownership (e.g., deed of trust, proof of taxes for most recent year).
13-I.E. NON-DISCRIMINATION [HAP Contract – Form HUD-52641]
The owner must not discriminate against any person because of race, color, religion, sex, national origin, age, familial status, or disability, in connection with any actions or responsibilities under the HCV program and the HAP contract with the PHA.
The owner must cooperate with the PHA and with HUD in conducting any equal opportunity compliance reviews and complaint investigations in connection with the HCV program and the HAP contract with the PHA.
See Chapter 2 for a more thorough discussion of Fair Housing and Equal Opportunity requirements in the HCV program.
PART II. HAP CONTRACTS
The HAP contract represents a written agreement between the PHA and the owner of the dwelling unit occupied by a HCV assisted family. The contract spells out the owner’s responsibilities under the program, as well as the PHA’s obligations. Under the HAP contract, the PHA agrees to make housing assistance payments to the owner on behalf of the family approved by the PHA to occupy the unit.
The HAP contract is used for all HCV program tenancies except for assistance under the Section 8 homeownership program, and assistance to families that own a manufactured home and use their assistance to lease the space for the manufactured home. See chapter 15 for a discussion of any special housing types included in the PHA’s HCV program.
When the PHA has determined that the unit meets program requirements and the tenancy is approvable, the PHA and owner must execute the HAP contract. See chapter 9 for a discussion of the leasing process, including provisions for execution of the HAP contract.
13-II.B. HAP CONTRACT CONTENTS
The HAP contract format is required by HUD, specifically Housing Assistance Payment (HAP) Contract, Form HUD-52641.
The HAP contract contains three parts.
Part A of the contract includes basic contract information the names of the tenant and all household members, the address of the contract unit, start and end dates of initial lease term, the amount of initial monthly rent to owner, amount of initial housing assistance payment, the utilities and appliances to be supplied by owner and tenant, and the signatures of the PHA representative and owner [HCV Guidebook, pp 11-10 and 11-11].
In general, the HAP contract cannot be modified. However, PHAs do have the discretion to add language to Part A of the HAP contract which prohibits the owner from collecting a security deposit in excess of private market practices or in excess of amounts charged to unassisted tenants. PHA policy on the amount of security deposit an owner may collect is found in Chapter 9.
PHAs also have the discretion to add language to Part A of the HAP contract that defines when the housing assistance payment by the PHA is deemed received by the owner (e.g., upon mailing by the PHA or actual receipt by the owner).
BHHC has not adopted a policy that defines when the housing assistance payment by the BHHC is deemed received by the owner.
Modifications to the HAP contract - In accordance with the provisions in PIH Notice 2009-52 provisions include notification requirements for subsequent owner(s), new owner’s responsibility to comply with existing HAP contract requirements under certain conditions. Additional PHA responsibilities to safeguard the tenant.
Part B is the body of the contract. It describes in detail program requirements affecting the owner and owner roles and responsibilities under the HCV program. Most of the requirements contained in Part B of the HAP contract are outlined elsewhere in this plan. Topics addressed in Part B include:
· Lease of Contract Unit
· Maintenance, Utilities, and Other Services
· Term of HAP Contract
· Provision and Payment of Utilities and Appliances
· Rent to Owner: Reasonable Rent
· PHA Payment to Owner
· Prohibition of Discrimination
· Owner’s Breach of HAP Contract
· PHA and HUD Access to Premises and Owner’s Records
· Exclusion of Third Party Rights
· Conflict of Interest
· Assignment of the HAP Contract
· Written Notices
· Entire Agreement Interpretation
Part C of the contract includes the Tenancy Addendum (Form HUD-52641-A). The addendum sets forth the tenancy requirements for the program and the composition of the household, as approved by the PHA. The tenant has the right to enforce the Tenancy Addendum against the owner. The terms of the Tenancy Addendum prevail over any other provisions of the lease.
13-II.C. HAP CONTRACT PAYMENTS
During the term of the HAP contract, and subject to the provisions of the HAP contract, the PHA must make monthly HAP payments to the owner on behalf of the family, at the beginning of each month. If a lease term begins after the first of the month, the HAP payment for the first month is prorated for a partial month.
The amount of the HAP payment is determined according to the policies described in Chapter 6, and is subject to change during the term of the HAP contract. The PHA must notify the owner and the family in writing of any changes in the HAP payment.
HAP payments can be made only during the lease term, and only while the family is residing in the unit.
The monthly HAP payment by the PHA is credited toward the monthly rent to owner under the family’s lease. The total of the rent paid by the tenant, and the HAP payment is equal to the rent to owner as specified in the lease.
The family is not responsible for payment of the HAP payment, and the PHA is not responsible for payment of the family share of rent.
The family’s share of the rent cannot be more than the difference between the rent to the owner and the HAP payment. The owner may not demand or accept any rent payment from the tenant in excess of this maximum [24 CFR 982.451(b)(4)]. The owner may not charge the tenant extra amounts for items customarily included in rent in the locality, or provided at no additional cost to unsubsidized tenants in the premises [24 CFR 982.510(c)]. See chapter 9 for a discussion of separate, non-lease agreements for services, appliances and other items that are not included in the lease.
If the owner receives any excess HAP from the PHA, the excess amount must be returned immediately. If the PHA determines that the owner is not entitled to all or a portion of the HAP, the PHA may deduct the amount of overpayment from any amounts due to the owner, including amounts due under any other Section 8 HCV contract. See Chapter 16 for additional detail on owner reimbursement of HAP overpayments.
Owner Certification of Compliance
Unless the owner complies with all provisions of the HAP contract, the owner is not entitled to receive housing assistance payments under the HAP contract [HAP Contract – Form HUD‑52641].
By endorsing the monthly check from the PHA, the owner certifies to compliance with the terms of the HAP contract. This includes certification that the owner is maintaining the unit and premises in accordance with HQS; that the contract unit is leased to the tenant family and, to the best of the owner’s knowledge, the family resides in the unit as the family’s only residence; the rent to owner does not exceed rents charged by the owner for comparable unassisted units on the premises; and that the owner does not receive (other than rent to owner) any additional payments or other consideration for rent of the contract unit during the HAP term.
Late HAP Payments [24 CFR 982.451(a)(5)]
The PHA is responsible for making HAP payments promptly when due to the owner, in accordance with the terms of the HAP contract. After the first two calendar months of the HAP contract term, the HAP contract provides for late penalties if the PHA fails to make the HAP payment on time.
Penalties for late HAP payments can only be imposed if 1) the penalties are in accordance with generally accepted local rental market practices and law governing penalties for late payment by tenants; 2) it is the owner’s normal business practice to charge late payment penalties for both assisted and unassisted families; and 3) the owner charges the assisted family for late payment of the family’s share of the rent.
The PHA is not required to pay a late payment penalty if HUD determines that the payment is late for reasons beyond the PHA’s control. In addition, late payment penalties are not required if the PHA intentionally delays or denies payment as a remedy to an owner breach of the HAP contract [HCV Guidebook p. 11-7].
Termination of HAP Payments [24 CFR 982.311(b)]
The PHA must continue making housing assistance payments to the owner in accordance with the HAP contract as long as the tenant continues to occupy the unit and the HAP contract is not violated.
HAP payments terminate when the HAP contract terminates or when the tenancy is terminated in accordance with the terms of the lease.
If the owner has initiated eviction proceedings against the family and the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner until the owner has obtained a court judgment or other process allowing the owner to evict the tenant.
The owner must inform BHHC when the owner has initiated eviction proceedings against the family and the family continues to reside in the unit.
The owner must inform BHHC when the owner has obtained a court judgment or other process allowing the owner to evict the tenant, and provide BHHC with a copy of such judgment or determination.
After the owner has obtained a court judgment or other process allowing the owner to evict the tenant, BHHC will continue to make HAP payments to the owner until the family actually moves from the unit or until the family is physically evicted from the unit, whichever is earlier. The owner must inform BHHC of the date when the family actually moves from the unit or the family is physically evicted from the unit.
13-II.D. BREACH OF HAP CONTRACT [24 CFR 982.453]
Any of the following actions by the owner constitutes a breach of the HAP contract:
· If the owner violates any obligations under the HAP contract including failure to maintain the unit in accordance with HQS
· If the owner has violated any obligation under any other HAP contract under Section 8
· If the owner has committed fraud, bribery or any other corrupt or criminal act in connection with any federal housing program
· For projects with mortgages insured by HUD or loans made by HUD, if the owner has failed to comply with the regulation for the applicable program; or if the owner has committed fraud, bribery or any other corrupt or criminal act in connection with the mortgage or loan
· If the owner has engaged in drug-related criminal activity
· If the owner has committed any violent criminal activity
If the PHA determines that a breach of the HAP contract has occurred, it may exercise any of its rights and remedies under the HAP contract.
The PHA rights and remedies against the owner under the HAP contract include recovery of any HAP overpayment, suspension of housing assistance payments, abatement or reduction of the housing assistance payment, termination of the payment or termination of the HAP contract. The PHA may also obtain additional relief by judicial order or action.
The PHA must notify the owner of its determination and provide in writing the reasons for the determination. The notice may require the owner to take corrective action by an established deadline. The PHA must provide the owner with written notice of any reduction in housing assistance payments or the termination of the HAP contract.
Before BHHC invokes a remedy against an owner, BHHC will evaluate all information and documents available to determine if the contract has been breached.
If relevant, BHHC will conduct an audit of the owner’s records pertaining to the tenancy or unit.
If it is determined that the owner has breached the contract, BHHC will consider all of the relevant factors including the seriousness of the breach, the effect on the family, the owner’s record of compliance and the number and seriousness of any prior HAP contract violations.
13-II.E. HAP CONTRACT TERM AND TERMINATIONS
The term of the HAP contract runs concurrently with the term of the dwelling lease [24 CFR 982.451(a)(2)], beginning on the first day of the initial term of the lease and terminating on the last day of the term of the lease, including any lease term extensions.
The HAP contract and the housing assistance payments made under the HAP contract terminate if [HCV Guidebook pp.11-4 and 11-5, pg. 15-3]:
· The owner or the family terminates the lease;
· The lease expires;
· The PHA terminates the HAP contract;
· The PHA terminates assistance for the family;
· The family moves from the assisted unit. In this situation, the owner is entitled to keep the housing assistance payment for the month when the family moves out of the unit.
· 180 calendar days have elapsed since the PHA made the last housing assistance payment to the owner;
· The family is absent from the unit for longer than the maximum period permitted by the PHA;
· The Annual Contributions Contract (ACC) between the PHA and HUD expires
· The PHA elects to terminate the HAP contract.
BHHC may elect to terminate the HAP contract in each of the following situations:
Available program funding is not sufficient to support continued assistance for families in the program [24 CFR 982.454];
The unit does not meet HQS size requirements due to change in family composition [24 CFR 982.403] – see chapter 8;
The unit does not meet HQS [24 CFR 982.404] – see chapter 8;
The family breaks up [HUD Form 52641] – see chapter 3;
The owner breaches the HAP contract [24 CFR 982.453(b)] – see Section 13-II.D.
If the PHA terminates the HAP contract, the PHA must give the owner and the family written notice. The notice must specify the reasons for the termination and the effective date of the termination. Once a HAP contract is terminated, no further HAP payments may be made under that contract [HCV Guidebook pg.15-4].
In all cases, the HAP contract terminates at the end of the calendar month that follows the calendar month in which BHHC gives written notice to the owner. The owner is not entitled to any housing assistance payment after this period, and must return to BHHC any housing assistance payment received after this period.
If the family moves from the assisted unit into a new unit, even if the new unit is in the same building or complex as the assisted unit, the HAP contract for the assisted unit terminates. A new HAP contract would be required [HCV GB, p. 11-17].
When the family moves from an assisted unit into a new unit, the term of the HAP contract for the new unit may begin in the same month in which the family moves out of its old unit. This is not considered a duplicative subsidy [HCV GB, p. 8-22].
IN OWNERSHIP / ASSIGNMENT OF THE HAP CONTRACT
The HAP contract cannot be assigned to a new owner without the prior written consent of the PHA.
An owner under a HAP contract must notify the PHA in writing prior to a change in the legal ownership of the unit. The owner must supply all information as requested by the PHA.
Prior to approval of assignment to a new owner, the new owner must agree to be bound by and comply with the HAP contract. The agreement between the new owner and the former owner must be in writing and in a form that the PHA finds acceptable. The new owner must provide the PHA with a copy of the executed agreement.
Assignment of the HAP contract will be approved only if the new owner is qualified to become an owner under the HCV program according to the policies in Section 13-I.D. of this chapter.
BHHC must receive a signed, written request from the existing owner stating the name and address of the new HAP payee and the effective date of the assignment in order to change the HAP payee under an outstanding HAP contract.
Within 10 business days of receiving the owner’s request, BHHC will inform the current owner in writing whether the assignment may take place.
The new owner must provide a written certification to BHHC that includes:
A copy of the escrow statement or other document showing the transfer of title and recorded deed;
A copy of the owner’s IRS Form W-9, Request for Taxpayer Identification Number and Certification, or the social security number of the new owner;
The effective date of the HAP contract assignment;
A written agreement to comply with the terms of the HAP contract; and
A Certification that the new owner is not a prohibited relative.
If the new owner does not agree to an assignment of the HAP contract, or fails to provide the necessary documents, BHHC will terminate the HAP contract with the old owner. If the new owner wants to offer the family a new lease, and the family elects to stay with continued assistance, BHHC will process the leasing in accordance with the policies in chapter 9.
In accordance with the provisions in PIH Notice 2009-52 provisions include notification requirements for subsequent owner(s), new owner’s responsibility to comply with existing HAP contract requirements under certain conditions. The PHA responsibilities to safeguard the tenant.
13-II.G. FORECLOSURE [HUD-52641 and Notice PIH 2010-49]
Families receiving HCV assistance are entitled to certain protections set forth under the Protecting Tenants at Foreclosure Act (PTFA). Specifically, the HAP contract now contains language stating that in the case of any foreclosure, the immediate successor in interest in the property pursuant to the foreclosure will assume such interest subject to the lease between the prior owner and the tenant, and to the HAP contract between the prior owner and the PHA for the occupied unit. This provision of the HAP contract does not affect any state or local law that provides longer time periods or other additional protections for tenants.
If the PHA learns that a property is in foreclosure, it must take the following actions:
- Make all reasonable efforts to determine the status of the foreclosure and ownership of the property. (Further guidance on how to obtain this information can be found in Notice PIH 2010-49.)
- Continue to make payments to the original owner until ownership legally transfers in accordance with the HAP contract.
- Attempt to obtain a written acknowledgement of the assignment of the HAP contract from the successor in interest. The written agreement should include a request for owner information, such as a tax identification number, and payment instructions from the new owner. Even if the new owner does not acknowledge the assignment of the HAP contract in writing, the assignment is still effective by operation of law.
- Inform the tenant that they must continue to pay rent in accordance with the lease, and if the successor in interest refuses to accept payment or cannot be identified, the tenant should pay rent into escrow. Failure to pay rent may constitute an independent ground for eviction.
- Inform the tenant in the event that the PHA is unable to make HAP payments to the successor in interest due an action or inaction by the successor that prevents such payments (e.g., rejection of payments or failure to maintain the property according to HQS), or due to an inability to identify the successor. The PHA should also refer the tenant, as needed, to the local legal aid office in order to ensure adequate protection of the tenant’s rights and enforcement of the successor in interest’s performance under the HAP contract.
- Make reasonable inquiries to determine whether the unit, in addition to having a tenant receiving HCV assistance, will be or has been assisted under the Neighborhood Stabilization Program (NSP). (For further guidance on cases in where the units have been assisted under the NSP, see Notice PIH 2010-49.)
- PHAs are also required to notify HCV applicants who have been issued a voucher, participant heads of household, and current and prospective owners of HCV-assisted housing of the protections afforded to tenants under the PTFA.
- PHA Policy
- The PHA will provide all HCV applicants that have been issued a voucher with information regarding the PTFA at admission (see Section 5-I.B) and to participant heads of household at annual reexamination.
- The PHA will provide information regarding the PTFA to prospective owners when they begin their participation in the HCV program, and to current HCV owners one time with the monthly HAP.
- Note that the foreclosure provision of the HAP contract and additional tenant protections under the Protecting Tenants at Foreclosure Act will sunset December 31, 2014.
- See Section 12-III.B for a discussion of foreclosure as it pertains to owner termination of tenancy.