HUD issues 2008 OCAFs

On October 25, the 2008 Operating Cost Adjustment Factors (“OCAFs”) were published by HUD in the Federal Register. OCAFs are annual factors used to adjust Section 8 rents renewed under the Multifamily Assisted Housing Reform and Affordability Act and the Low-Income Housing Preservation and Resident Homeownership Act of 1990. To obtain a copy, go to the following link http://www.nixonpeabody.com/linked_media/publications/AHA_10262007_2008-OCAFs.pdf

HUD Handbook 4350.3 Revision 1, Change 2 – Release of Index

In October, HUD posted a new 4350.4 Revision 1, Change 2 to include an index and an updated version of the 93104 (Appendix 13). These are the only changes we have discovered with the new posting.

Rental Housing Integrity Improvement Project Newsletter

HUD has posted the Fall/Winter 2008 RHIIP Newsletter. This edition includes excellent information about EIV, the Student Rule and Common MOR findings. You can also check out the newsletter to see pictures of some of the HUD staff who support our efforts to provide decent, safe and affordable housing to families in need. You can access the newsletter from HUD’s web site at: http://www.hud.gov/offices/hsg/mfh/rhiip/newsvol3no7.pdf

PROPOSED Rule Regarding Pets

We have received quite a few inquiries regarding a proposed rule regarding “pets” posted to the HUDClips web site. Please keep in mind that this is a proposed rule and has not been approved as of today. Comments are due no later than December 14, 2007.

The proposed rule would change HUD’s regulation that applies to pet and assistance or companion animal ownership in HUD-assisted housing. Keep in mind that the pet provisions in 24 CFR Part 5 are provided for properties set aside for elderly and disabled residents.

The proposed rule would revise HUD’s regulation that applies to assistance animals by making the assistance animal exceptions for MFH and PHA more consistent. Currently, instruction regarding assistance animals, for MFH and PHAs, differ slightly.

Here’s what the change would entail, based on our interpretation:

First HUD would like to broaden the function of assistance animals to state that the exclusions apply to animals that “assist, support, or provide service to persons with disabilities”. Currently the regulation is limited to animals that “assist persons with disabilities”. We agree that the definition should be broadened; so far-so good.

Second, and a bit concerning, HUD proposes to revise the rule to state that owners may not apply or enforce any policies established against animals that are necessary as a reasonable accommodation to assist, support or provide service to persons with disabilities.

While we understand that HUD must provide guidance that ensures protections for people with disabilities, denying owners the right to apply ANY rules to service/companion animals may be counter-productive. For example, many owner/agents have developed a Pet Policy and a separate Service/Assistance Animal Policy. These are both considered lease addendums. While the policies are similar, there are key differences. See the table below:

Rule	Pet Policy	Service Animal Policy
Deposit Required	Yes	No
Charge for Damages Caused by Animal	Yes	Yes
Size Limit	Yes	No
Breed Restriction	Yes	No (unless mandated by state/local reg)
Limit on Number of Animals	Yes	No
Inoculation Required	Yes	Yes
Spay/Neuter Requirement	Yes	No
Leash Laws Enforced	Yes	Yes
Animal Waste Disposal Rules	Yes	Yes (unless reasonable accommodation is granted)
Rules Regarding Interference with Enjoyment of the Property by Other Residents	Yes	Yes
Rules Regarding Interference with Management Function	Yes	Yes

So, as you can see, to include verbiage prohibiting ANY rules could cause problems in the future. In addition, HUD proposes to remove the resident certification and animal training requirements.

1) A project owner may require resident animals to qualify for this exclusion. Project owners must grant this exclusion if:

(i) The tenant or prospective tenant certifies in writing that the tenant or a member of his or her family is a person with a disability;

(ii) The animal has been trained to assist persons with that specific disability; and

(iii) The animal actually assists the person with a disability.

In the HUD/DOJ Joint Statement Regarding Reasonable Accommodations Under the Fair Housing Act, HUD and Justice specifically state that an owner/agent can ask for certification/verification if the need for the assistance/companion animal is not obvious. See Question number 17. For a copy of this document, visit the DOJ web site at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

We would strongly suggest that owner/agents submit comments to HUD before the deadline and, that you petition your state officials as appropriate. For those of you who are members of the National Affordable Housing Management Association (NAHMA) www.nahma.org or the American Association of Housing and Services for the Aged (AAHSA) www.aahsa.org, we would suggest working with your local associations to respond to these suggested changes.

Note for NAHMA members: NAHMA’s Regulatory Affairs committee has established a comment submission deadline of December 7.

A complete copy of the notice can be found on the HUDClips web site at:

http://hudclips.org/sub_nonhud/cgi/nph-brs.cgi?d=FR07&s1=FR-5127-P-01$%5bNO%5d&SECT5=FR07&SECT1=TXTHLB&l=50&u=../cgi/newsdoc_run.cgi&p=1&r=1&f=G

Formatting Errors – HUD Leases Posted on RBD Site

Thanks to our customers, we have modified the Word versions of the HUD Model Leases (Appendix 4A and Appendix 4B) which were posted on the RBD web site.

There were some numbering/formatting errors and they have since been corrected and re-posted. In addition, for those of you managing Section 8 elderly properties, we have also posted sample leases that include the required language explaining residents’ right to have a pet. See HUD Handbook 4350.3 Revision 1, Change 2 Paragraph 6-5-C-4. The leases are posted on the RBD web site at http://www.rbdnow.com/chg2leases.htm.

RBD does not act as a legal advisor nor as a regulatory governing agency. The recipient should understand that any materials or comments contained herein are not designed for, nor should be relied upon as a source of legal guidance or as a final authority with respect to any particular circumstance. Ross Business Development, Inc. makes no warranty of merchantability or fitness for a particular purpose or any other warranty of any type. Owners and management should seek competent legal advice in developing and carrying out policies and procedures. While we have been diligent in our efforts to provide comprehensive and accurate regulatory information, Ross Business Development, Inc. shall not be responsible for errors or inaccuracies.