1.1.4 How to Identify the Program Involved
Because of the variations in the applicable rules, it is important to know whether a client lives in housing subsidized under a federal program and, if so, which program provides the subsidy. Easy cases are when the client knows the exact program or you are familiar with the building where the client lives. Alternatively, the landlord or management personnel at the client’s property may be able to provide this information. The local HUD office could also assist and should have lists of all the PHAs and HUD-subsidized projects in the service area.19 HUD also maintains a list of LIHTC developments.20 An important resource that advocates can use to determine which program or subsidy applies is the National Housing Preservation Database. Most federally subsidized properties are searchable and the property listings contain a host of valuable information.21
The chart in Appendix 1B, Federal Housing Programs in Brief, may help clarify the basic elements of each program, assisted as needed by the more detailed program descriptions in Chapter 1. The following questions may also help identify the applicable program. There is no guarantee, however, that this system will work, especially because landlords sometimes use the wrong leases or documents for the program under which they are operating.
Landlord. An important first question to ask is “who is the landlord?” If the landlord is a Public Housing Authority (PHA), it is most likely that the housing is conventional public housing (rather than one of the very few remaining Section 23 leased housing units). If the landlord is a private landlord, then the housing could be either a Section 202, Section 236 or a Section 221(d)(3) BMIR project or some form of Section 8 housing, including a Project-Based Voucher (PBV). Or it could be a program, such as HOME, Section 17 Rental Rehabilitation or Section 17 Development, or Low-Income Housing Tax Credit (LIHTC). A final possibility is that the housing may be owned by HUD itself, after a foreclosure, or operated by HUD as Mortgagee in Possession (MIP), but even that may not be obvious, because HUD-owned and MIP projects are managed by private management companies.
Local Housing Authority Involvement. Even if the PHA is not the landlord, whether the client has dealt with the local housing authority may be telling. If the client secured a Voucher from the PHA, then she is a Voucher participant and the landlord may be either an ordinary private landlord or a HUD-subsidized Section 236 or 221(d)(3) BMIR, Section 17, HOME or LIHTC landlord, because Section 8 Vouchers are commonly used in such projects. A client who has been dealing with the PHA may also be participating in the Section 8 Moderate Rehabilitation or Project-Based Voucher program.
Lease. Particular programs require specific provisions to be included in tenants’ leases. Leases for the conventional Public Housing and the Section 23 leased housing programs will usually identify the PHA as the landlord, should contain good cause restrictions on termination of the lease, and should reference the PHA’s grievance procedure. HUD-prescribed leases for the Section 236, the Section 221(d)(3) BMIR, Rent Supplement and the Project-Based Section 8 programs have a paragraph on eviction that requires good cause for terminations and provides that a terminated tenant must be informed of his or her right to present a defense in any judicial proceedings.22
Many of the leases under the Section 8 Voucher, Project-Based Voucher (PBV) or Mod Rehab programs have addenda listing a series of required and sometimes prohibited provisions. If the client’s lease makes reference to payments made by the PHA to the landlord or to any landlord’s duty to notify the PHA when terminating the tenancy, the client is probably living in Section 8 Moderate Rehabilitation housing or participating in the Voucher or PBV program. If the lease contains language concerning the PHA’s payment standard or limiting good cause protections only to evictions during the term of the lease, then it is probably a Voucher tenancy. The lease addendum for the PBV program also permits the landlord to evict without good cause in limited situations.
Other Documentation. If the client has received a notice that the landlord plans to apply to HUD for approval of a rent increase, the client probably lives in either Section 236, Section 221(d)(3) BMIR or Section 202 housing. If the client received an eviction notice, it may contain some identifying information. If it makes reference to a grievance procedure, the housing is probably either conventional public housing or Section 23 leased housing. If it indicates that the tenant has a right to present a defense in judicial proceedings, then the housing is probably either Project-Based Section 8, Section 236, Section 221(d)(3), Section 202 Rent Supplement or HUD-owned housing. If it indicates that a copy of the notice has been sent to a PHA, then the Section 8 Moderate Rehabilitation or the Housing Choice Voucher program is likely involved.
Rent Level. Another good indicator of the program is the amount of rent paid by the tenant. If both the unit rent and the tenant contribution are the same, and appear to be slightly below market (what an unassisted tenant would pay for the unit), but are not based upon your client’s income, it is most likely that he or she lives in Section 221(d)(3) BMIR or Section 236 housing, or HOME, Section 17 or LIHTC housing, which tend to have the highest rents of all the subsidized programs. If the tenant’s contribution toward rent is well below market and is equal to approximately 30% of the household’s income after some deductions, conventional public housing, housing under any of the Section 8 programs, HUD-owned housing, Rent Supplement housing, or Section 236 or Section 221(d)(3) housing combined with Rental Assistance, Rent Supplement, Section 23 or Section 8 is likely involved. If there appears to be a rental assistance payment made by the PHA, HUD or a state agency to supplement the tenant’s share of the total unit rent, then it is probably one of the HUD rental assistance programs and not public housing, and the source of the assistance payment will help determine which one.
Financing. The source of the financing for the project may be relevant. For example, some of the Section 236, Rent Supplement and Section 8 projects are financed by state housing finance agencies instead of by HUD-insured mortgages from private lenders. In those situations, different rules come into play with regard to approvals of rent increases. In the Section 8 programs, there are also special rules for projects financed by state housing finance agencies, by the Rural Housing Services (formerly Farmers Home Administration), or with HUD Section 202 direct loans for the elderly and people with disabilities.
Multiple Subsidies. One final consideration is that more than one type of subsidy may apply to a particular property. One common example is that a voucher family may rent a unit in a LIHTC building. In that case, advocates will have to learn the rules for both programs and how they apply to the tenant.
19 Lists and addresses of HUD-assisted properties are available from HUD’s online data sets, .
20 For a list of the LIHTC units, visit . In addition, the state tax credit allocation agency may have a list of LIHTC units.
21 The database includes information for Project-Based Section 8, RAP, Rent Supplement, Section 202, Section 811, Section 236, Section 221(d)(3) BMIR, non-subsidized HUD insured properties, Section 202 Direct Loans, LIHTC, HOME, Rural Development 515 and 538, public housing, and State HFA 236 properties. The database provides the name and type of owner, when the subsidy expires, and how many units a property contains. See Nat’l Hous. Preservation Database, http://www.preservationdatabase.org/.
22 12 U.S.C.A. § 1715l(d)(3)(ii) (West 2018); HUD, Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs, REV-1, CHG-4, app. 4-A (Nov. 2013) [hereinafter “HUD Handbook 4350.3”]. For 2012 BMIR incomes, see .