Boston Housing Authority

Policies > Section 8 Admin Plan Ch 15: Project-Based Voucher Program

Section 8 Admin Plan

Chapter 15:Project-Based Voucher Program

15.1 General

15.1.1 BHA Administration of the PBV Program

The BHA administers the PBV in accordance with federal regulations, specifically 24 C.F.R. part 982 and 24 C.F.R. part 983, as well as State and local law.
15.1.2  Description of the PBV Program

(a)        The PBV Program is funded from the Voucher Annual Contributions Contract (ACC) between the BHA and HUD.  Project-based means that the subsidy is attached to the Unit, whereas tenant-based assistance allows the tenant to move with the subsidy (see difference between project-based and tenant-based assistance at 24 C.F.R. § 982.1(b)).
 
(b)        The BHA enters into a HAP Contract with an Owner for Units in existing housing or in newly constructed or rehabilitated housing.
 
(c)        When the PBV housing is new construction or rehabilitation, the housing is developed under an Agreement to enter into a Housing Assistance Payments (“AHAP”) contract between the BHA and the Owner.
 
(d)        During the term of the HAP Contract the BHA makes payments to the Owners for Units leased and occupied by eligible Families.

15.1.3  Goal of the PBV Program           

It is the goal of the BHA to make project-based rental subsidies accessible so interested and eligible Families can afford safe, decent and sanitary housing; to provide the services with integrity and mutual accountability; and to create housing situations which will serve as catalysts for the transformation from dependence to economic self-sufficiency.  It is also the goal of the PBV program to create new affordable housing resources.  

15.1.4  Maximum Amount of PBV Assistance           

The BHA may project-base up to twenty percent (20%) of the annual budget authority allocated to the BHA by HUD in the Voucher program.  In calculating twenty percent (20%), the BHA will use the amount of funding available at the time of the allocation of the Project Based Vouchers. The BHA is not required to reduce the number of units selected under a HAP Contract or an Agreement if the amount of the budget authority is subsequently reduced.

15.2     Selection of PBV Owner Proposals

15.2.1  Owner Proposal Selection Procedures           

The BHA may use one of the two following methods to select Owner proposals:
 
(a)               Request for Proposal (RFP)
 
The BHA may publicly issue a competitive request for PBV proposals.  The BHA may not limit a Request for Proposal (RFP) to a single site or impose restrictions that explicitly or practically preclude Owner submission of proposals for PBV housing on different sites.

(1)               Public Notice Requirement
 
The BHA will publish a RFP in a newspaper of general circulation and will make the RFP available on its web site (www.bostonhousing.org).  The public notice must specify the submission deadline.  The BHA will provide detailed application and selection criteria at the request of interested parties.  


(b)        The BHA may determine to provide PBV funding to a proposal for housing assisted under a federal, state, or local government housing assistance, community development, or supportive services program that requires competitive selection of proposals (e.g., HOME, and units for which competitively awarded Low Income Housing Tax Credits have been provided), where the proposal has already been selected in accordance with such program's competitive selection requirements within three years of the BHA's PBV proposal selection date, and the earlier competitive selection proposal did not involve any consideration that the project would receive BHA PBV assistance.    

15.2.2  Subsidy Layering Review (SLR) Prohibition of Excess Public Assistance

The SLR is intended to prevent excessive public assistance for the housing by combining (layering) housing assistance subsidy under the PBV program with other governmental assistance from federal, state, or local agencies, including but not limited to, assistance such as tax concessions or tax credits.
 
(a)               The BHA shall obtain from the Applicant all the information required by the HUD mandated SLR checklist.
 
(b)               The BHA must review the SLR package prepared by the Applicant for its completeness and consistency with program requirements.
 
(c)               If it appears complete and acceptable, the BHA shall forward the SLR package to HUD’s Boston office.  The HUD Boston office will also review the material and if found acceptable, submit it to HUD Headquarters for final review and approval.

15.2.3  Cap on Number of PBV Units in each Building

(a)        The BHA may not select a proposal to provide PBV assistance for Units in a building or enter into an Agreement or HAP Contract to provide PBV assistance for Units in a building, if the total number of dwelling units in the building that will receive PBV assistance is more than 25 percent of the number of Units (assisted or unassisted) in the building, unless the building qualifies for an exception.

(b)        Exceptions to 25 percent per building cap.

(1)        Units in a single-family building (a building with no more than four dwelling units);

(2)        Units in a multifamily building that are specifically made available for:

(i)         Elderly or disabled families; or

(ii)        Families receiving supportive services.

(c)        Supportive Services that Qualify for an Exception

Supportive services that qualify for an exception are those services that assist a person with a medical condition or disability or services that assist a Family in becoming self-sufficient.  Examples of supportive services that qualify for an exception include but are not limited to:

(1)               Household Training (e.g., homemaking, parenting skills, money management)

(2)               Job Training (e.g., preparation and counseling, job development and placement, follow-up assistance after job placement, completion of FSS Contract of Family Participation)

(3)               Services and Resources (appropriate to assist families to achieve economic independence and self-sufficiency)

(4)               Child Care (provide sufficient hours of operation and serve an appropriate range of ages)

(5)               Counseling for parents and other kinship relations caring for children with special needs (programs for families adopting children from MA Department of Social Services (DSS), foster care programs, Grandfamily programs)

(6)               Remedial Education (education for the completion of Secondary or post-secondary education)

(7)               Substance Abuse Treatment (counseling and treatment for substance abuse)

(d)        Other Qualifications for Supportive Services

(1)        It is not necessary that the services be provided at or by the project, if they are BHA approved/qualified services.

(2)        A Qualifying Family must have at least one member receiving at least one qualifying supportive service.

(3)        The BHA may not require participation in medical or disability-related services as a condition of living in an excepted Unit, other than drug and alcohol treatment in the case of current abusers as a condition of living in an excepted Unit, although such services may be offered.

(e)        Participant Completion of Services or Service Contract.

If a Family at the time of initial tenancy is receiving, and while the resident of an excepted Unit has received, FSS supportive services or any other supportive services as defined in the BHA administrative plan, and successfully completes the FSS contract of participation or the supportive services requirement, the Unit continues to count as an excepted Unit for as long as the Family resides in the Unit.

(f)         Participant Failure to Complete Supportive Services or Service Contract.

(1)        Termination of Lease.  

If a Family in an excepted Unit fails without good cause to complete its FSS contract of participation or if the Family fails to complete the supportive services requirement as outlined in this Administrative Plan, the BHA will take the actions provided under 24 C.F.R.  § 983.261(d), and the Owner may terminate the Lease in accordance with 24 C.F.R. § 983.257(c).  See also section 14.3.

(2)        Termination of Assistance

At the time of initial Lease execution, the Family and the BHA must sign a statement of Family responsibility. The statement of Family responsibility must contain all Family obligations including the Family's participation in a service program under this section. Failure by the Family without good cause to fulfill its service obligation will require the BHA to terminate assistance.

(3)        Unit Continues to be an Excepted Unit

If the Unit at the time of such termination is an excepted Unit, the exception continues to apply to the Unit as long as the Unit is made available to another Qualifying Family.

(g)        BHA Monitoring of Supportive Services

Providers of supportive services are obligated to report to the BHA regarding any changes in the supportive services at least on annual basis. The BHA may request more frequent reports from supportive service agencies at its discretion.  

A supportive service agency must inform the BHA immediately when a Family fails to meet their supportive service requirements.

(1)        Set-aside for Qualifying Families.

(i)         In leasing units in a multifamily building pursuant to the PBV HAP, the Owner must set aside the number of excepted Units made available for occupancy by Qualifying Families.

(ii)        The BHA may refer only Qualifying Families for occupancy of excepted Units.

(h)        Ninety Percent Cap

The BHA may require a 90% (ninety percent) per-building cap on the number of Units that will receive PBV assistance or other project-based assistance in a multifamily building containing excepted Units.

15.2.4  Site Selection Standards

The BHA’s site selection standards must comply with PBV goals, civil rights requirements, and HQS.

The BHA may not select a proposal for existing, newly constructed, or rehabilitated PBV housing on a site or enter into an Agreement or HAP Contract for Units on the site, unless the BHA has determined that:

(a)        Project-based assistance for housing at the selected site is consistent with the goal of deconcentrating poverty and expanding housing and economic opportunities. The standard for deconcentrating poverty and expanding housing and economic opportunities must be consistent with the BHA Annual Plan, the BHA Administrative Plan, and 24 C.F.R. part 903. In developing the standards to apply in determining whether a proposed PBV development will be selected, the BHA shall consider the following:

(1)        Whether the census tract in which the proposed PBV development will be located is in a HUD-designated Enterprise Zone, Economic Community, or Renewal Community;

(2)        Whether a PBV development will be located in a census tract where the concentration of assisted Units will be or has decreased as a result of public housing demolition;   

(3)        Whether the census tract in which the proposed PBV development will be located is undergoing significant revitalization;

(4)        Whether state, local, or federal dollars have been invested in the area that has assisted in the achievement of the statutory requirement for the deconcentration of poverty at 24 C.F.R. part 903;

(5)        Whether new market rate Units are being developed in the same census tract where the proposed PBV development will be located and the likelihood that such market rate Units will positively impact the poverty rate in the area;

(6)               If the poverty rate in the area where the proposed PBV development will be located is greater than 20 percent, the PHA may consider whether in the past five years there has been an overall decline in the poverty rate;

(7)               If the poverty rate in the area where the proposed PBV development will be located is greater than forty (40%) percent, the BHA may require the developer to submit comprehensive evidence including, but not limited to; specific economic development data of the subject census tract and neighboring census tracts to provide the most complete and accurate assessment of the current economic status of the area as possible;

(8)               Whether there are meaningful opportunities for educational and economic advancement in the census tract where the proposed PBV development will be located.

(b)        The site is suitable from the standpoint of facilitating and furthering full compliance with the applicable provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d-2000d(4)) and HUD's implementing regulations at 24 C.F.R. Part 1; Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601-3629); and HUD's implementing regulations at 24 C.F.R. Parts 100 through 199; Executive Order 11063 (27 FR 11527; 3 C.F.R., 1959-1963 Comp., p. 652) and HUD's implementing regulations at 24 C.F.R. Part 107. The site must meet the section 504 site selection requirements described in 24 C.F.R. § 8.4(b)(5).

(c)        The site meets the HQS site standards at 24 C.F.R. § 982.401(l).

15.2.5  BHA PBV Site Selection Policy

(a)               Each prospective BHA PBV site applicant must demonstrate to the BHA that their respective project satisfies the goals of deconcentrating poverty and expanding housing and economic opportunity, regardless of the project’s poverty rate as defined by the most recent census data.  The BHA will make its assessment of an applicant project’s compliance with achieving these goals based on the totality of the applicant’s response, taking into consideration the target population to be served (i.e., Family, Elderly, Disabled, and populations needing supportive services.

(b)               The BHA will also further assess each proposal to determine if they achieve the following BHA Agency Plan objectives:

(1)               Development and maintenance of an adequate supply of safe, decent housing that is affordable to residents with a range of income levels and household needs;

(2)               Assurance that a resident with long term support needs have access to appropriate services and accessible community and housing options.

(3)               Assurance of full and fair access to housing for all residents.

15.2.6  Environmental Review

The local governmental Unit responsible (RE or Responsible Entity) for the federal environmental review under the National Environmental Protection Act (NEPA) of 1969 (42 U.S.C. § 42331 et. Seq.)[1] will conduct environmental reviews in connection with the project-based program.  If the responsible entity declines to do the review then HUD may perform the environmental review itself.

(a)        Existing Housing

The RE will determine whether the existing building is excluded from environmental review.  The RE will also determine whether or not the assistance is subject to review under the laws and authorities under 24 C.F.R. § 58.5.  

(b)        The BHA may not enter into an Agreement or HAP Contract with an Owner, and the BHA, the Owner, and its contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish, or construct real property or commit or expend program or local funds for PBV activities under this part, until the following HUD environmental requirements are met:

(1)        The RE entity has completed the environmental review and HUD has approved the environmental certification and request for release of funds;

(2)        The RE has determined that the project to be assisted is exempt from an environmental review or is categorically excluded and not subject to compliance with environmental laws under 24 C.F.R. § 58.35(b); or

(3)        HUD has performed an environmental review and has notified the BHA in writing of environmental approval of the site.

(c)        Mitigating Circumstances

The BHA must require the Owner to carry out mitigating circumstances required by the RE or required by HUD.

(d)        Verification

The BHA will keep verification of the review or verification of the exemption in the BHA file for the building.
15.2.7  BHA-owned Units

(a)        The selection of BHA-owned Units must be done in accordance with 24 C.F.R. § 983.51(e) and section 15.2.5 of this Administrative Plan.

(b)        Inspection and determination of reasonable rent by independent entity

(1)        The BHA will have the units inspected by an independent entity to be sure the Units meet the requirements of HQS and Chapter II of the State Sanitary Code.

(2)        The BHA will have the reasonable rent determined by a HUD-approved appraisal or, by a licensed HUD approved appraiser by a licensed state certified appraiser.   

(c)        Nature of independent entity

The independent entity that performs these program services may be the Unit of general local government for the BHA jurisdiction (unless the BHA is itself the Unit of general local government or an agency of such government) or another HUD-approved public or private independent entity.

(d)        Payment to independent entity and appraiser

(1)        The BHA may only compensate the independent entity and appraiser from BHA ongoing administrative fee income (including amounts credited to the administrative fee reserve). The BHA may not use other program receipts to compensate the independent entity and appraiser for their services.

(2)        The BHA, independent entity, and appraiser may not charge the Family any fee for the appraisal or the services provided by the independent entity.

15.3     Dwelling Units

15.3.1  Housing accessibility for persons with Disabilities

(a)        Program accessibility.

The housing must comply with program accessibility requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and implementing regulations at 24 C.F.R. part 8. The BHA shall ensure that the percentage of accessible dwelling Units complies with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), as implemented by HUD's regulations at 24 C.F.R. Part 8, Subpart C.

(b)        Design and construction.

Housing first occupied after March 13, 1991, must comply with design and construction requirements of the Fair Housing Amendments Act of 1988 and implementing regulations at 24 C.F.R. § 100.205, as applicable.

15.3.2  Inspecting Units

(a)        Pre-selection inspection.

(1)        Inspection of site

The BHA must examine the proposed site before the proposal selection date.

(2)        Inspection of existing Units

If the units to be assisted already exist, the BHA must inspect all the units before the proposal selection date, and must determine whether the Units substantially comply with the HQS. To qualify as existing housing, Units must substantially comply with the HQS on the proposal selection date. However, the BHA may not execute the HAP Contract until the Units fully comply with the HQS.

(b)        Pre-HAP Contract inspections

The BHA must inspect each contract Unit before execution of the HAP Contract. The PHA may not enter into a HAP Contract covering a Unit until the Unit fully complies with the HQS.

(c)        Turnover inspections.

Before providing assistance to a new Family in a contract Unit, the BHA must inspect the Unit. The BHA may not provide assistance on behalf of the Family until the Unit fully complies with the HQS.

(d)        Annual inspections.

(1)        At least annually during the term of the HAP Contract, the PHA must inspect a random sample, consisting of at least twenty percent (20%) of the contract units in each building, to determine if the contract Units and the premises are maintained in accordance with the HQS. Turnover inspections pursuant to paragraph (c) of this section are not counted toward meeting this annual inspection requirement.

(2)        If more than twenty percent (20%) of the annual sample of inspected contract Units in a building fail the initial inspection, the BHA must re-inspect one hundred percent (100%) of the contract Units in the building.

(e)        Other inspections.

(1)        The BHA must inspect contract units whenever needed to determine that the contract Units comply with the HQS and that the Owner is providing maintenance, utilities, and other services in accordance with the HAP Contract. The BHA must take into account complaints and any other information coming to its attention in scheduling inspections.

(2)        The BHA must conduct follow-up inspections needed to determine if the Owner (or, if applicable, the Family) has corrected an HQS violation, and must conduct inspections to determine the basis for exercise of contractual and other remedies for Owner or Family violation of the HQS.

(3)        In conducting BHA supervisory quality control HQS inspections, the BHA should include a representative sample of both tenant-based and project-based Units.

(f)         Inspecting BHA-owned Units

(1)        In the case of BHA-owned Units, the inspections required under this section must be performed by an independent agency designated in accordance with section 15.2.7 of this Administrative Plan, rather than by the BHA.

(2)        The independent entity must furnish a copy of each inspection report to the BHA and to the HUD field office where the project is located.

(3)        The BHA must take all necessary actions in response to inspection reports from the independent agency, including exercise of contractual remedies for violation of the HAP Contract by the BHA Owner.

15.3.3  Requirements for Rehabilitated and Newly Constructed Units

An Owner or project sponsor, must enter into an Agreement to Enter in to a Housing Assistance Payments contract (AHAP) before any demolition, construction, or rehabilitation takes place.  This requirement only applies to non-existing PBV Units.

15.3.4  Purpose and content of the Agreement to enter into HAP Contract

(a)        Requirement
 
The BHA must enter into an Agreement (AHAP) with the Owner to enter in a HAP Contract.  
 
(b)        Purpose of the AHAP
                       
In the Agreement the Owner agrees to develop the contract units to comply with the HQS, and the BHA agrees that, upon timely completion of such development in accordance with the terms of the Agreement, the BHA will enter into a HAP Contract with the Owner for the contract Units.
 
(c)        Description of Housing.
           
The AHAP must describe the following features of the housing to be developed (newly constructed or rehabilitated) and assisted under the PBV program:

(1)        Site and evidence of site control;
 
(2)        Location of contract Units on site;
 
(3)        Number of contract Units by area (size) and number of bedrooms and bathrooms;
 
(4)        Services, maintenance, or equipment to be supplied by the Owner without charges in addition to the rent;
 
(5)        Utilities available to the contract Units, including a specification of utility services to be paid by Owner (without charges in addition to rent) and utility services to be paid by the Tenant;
 
(6)        Indication of whether or not the design and construction requirements of the Fair Housing Act and implementing regulations at 24 C.F.R. § 100.205 and the accessibility requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and implementing regulations at 24 C.F.R. §§ 8.22 and 8.23 apply to units under the Agreement. If these requirements are applicable, any required work item resulting from these requirements must be included in the description of work to be performed under the Agreement, as specified in paragraphs (c)(1 – 8) of this section.
 
(7)        Initial rents to Owner for the contract Units;
 
(8)        Description of the work to be performed under the Agreement. If the Agreement is for rehabilitation of units, the work description must include the rehabilitation work write up and, where determined necessary by the BHA, specifications, and plans. If the Agreement is for new construction, the work description must include the working drawings and specifications.           

(d)        Additional Requirements Established by the BHA
 
The BHA may also establish, in the AHAP, additional requirements for quality, architecture, or design of PBV housing, over and above the minimum requirements of HQS.

15.3.5  Conduct of New Construction and Rehabilitation Work

(a)        Development requirements.
 
The Owner must carry out development work in accordance with the Agreement and the requirements of this section.
 
(b)        Labor standards.

(1)        In the case of an Agreement for development of nine or more contract units (whether or not completed in stages), the Owner and the Owner's contractors and subcontractors must pay Davis-Bacon wages to laborers and mechanics employed in development of the housing.
 
(2)        The HUD prescribed form of Agreement shall include the labor standards clauses required by HUD, such as those involving Davis-Bacon wage rates.
 
(3)        The Owner and the Owner's contractors and subcontractors must comply with the Contract Work Hours and Safety Standards Act, Department of Labor regulations in 29 C.F.R. part 5, and other applicable federal labor relations laws and regulations. The PHA must monitor compliance with labor standards.

(c)        Equal opportunity.

(1)        Equal employment opportunity.
 
The Owner must comply with federal equal employment opportunity requirements of Executive Orders 11246 as amended (3 C.F.R., 1964-1965 Comp., p. 339), 11625 (3 C.F.R., 1971-1975 Comp., p. 616), 12432 (3 C.F.R., 1983 Comp., p. 198) and 12138 (3 C.F.R., 1977 Comp., p. 393).
 
(2)        Eligibility to participate in federal programs and activities.
 
The Agreement and HAP Contract shall include a certification by the Owner that the Owner and other project principals (including the officers and principal members, shareholders, investors, and other parties having a substantial interest in the project) are not on the U.S. General Services Administration list of parties excluded from federal procurement and non-procurement programs.
 
(3)        Disclosure of conflict of interest.
 
The Owner must disclose any possible conflict of interest that would be a violation of the Agreement, the HAP Contract, or HUD regulations.

15.3.6  Completion of Housing

(a)        Completion deadline.
 
The Owner must develop and complete the housing in accordance with the Agreement. The Agreement must specify the deadlines for completion of the housing and for submission by the Owner of the required evidence of completion.   
 
(b)        Required evidence of completion.

(1)        Minimum submission.

At a minimum, the Owner must submit the following evidence of completion to the BHA in the form and manner required by the BHA:    

(i)         Owner certification that the work has been completed in accordance with the HQS and all requirements of the Agreement; and
 
(ii)        Owner certification that the Owner has complied with labor standards and equal opportunity requirements in development of the housing.

(2)        Additional documentation.

At the discretion of the BHA, the Agreement may specify additional documentation that must be submitted by the Owner as evidence of housing completion. For example, such documentation may include:                                   

(i)         A certificate of occupancy or other evidence that the units comply with local requirements (such as code and zoning requirements);
 
(ii)        An architect's certification that the housing complies with:   

(A)       HUD housing quality standards;
(B)       State, local, or other building codes;
(C)       Zoning;
(D)       The rehabilitation work write-up (for rehabilitated housing) or the work description (for newly constructed housing); or
(E)       Any additional design or quality requirements pursuant to the Agreement.

(c)        BHA determination of completion.

When the BHA has received Owner notice that the housing is completed:

(1)        Upon notice from the Owner, the BHA must inspect to determine if the housing has been completed in accordance with the Agreement, including compliance with the HQS and any additional requirement imposed by the BHA under the Agreement.
 
(2)        The BHA must determine if the Owner has submitted all required evidence of completion.
                       
(3)        If the work has not been completed in accordance with the Agreement, the BHA must not enter into the HAP Contract.

(d)        Execution of HAP Contract.
 
If the BHA determines that the housing has been completed in accordance with the Agreement and that the Owner has submitted all required evidence of completion, the BHA must submit the HAP Contract for execution by the Owner and must then execute the HAP Contract.  

15.4     Housing Assistance Payments Contract

15.4.1  Purpose of HAP Contract

The purpose of the HAP Contract is to provide housing assistance payments for eligible families.  The BHA makes housing assistance payments to the Owner in accordance with the HAP Contract. Housing assistance is paid for contract Units leased and occupied by eligible families during the HAP Contract term.

15.4.2  HAP Contract information

The HAP Contract must specify:
 
(a)        The total number of contract units by number of bedrooms;
 
(b)        Information needed to identify the site and the building or buildings where the contract units are located. The information must include the project's name, street address, city or county, state and zip code, block and lot number (if known), and any other information necessary to clearly identify the site and the building;
 
(c)        Information needed to identity the specific contract units in each building. The information must include the number of contract units in the building, the location of each contract Unit, the area of each contract Unit, and the number of bedrooms and bathrooms in each contract unit;
 
(d)        Services, maintenance, and equipment to be supplied by the Owner without charges in addition to the rent;
                       
(e)        Utilities available to the contract units, including a specification of utility services to be paid by the Owner (without charges in addition to rent) and utility services to be paid by the tenant;
                       
(f)         Features provided to comply with program accessibility requirements of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and implementing regulations at 24 C.F.R. part 8;
 
(g)        The HAP Contract term;
 
(h)        The number of units in any building that will exceed the 25 percent per building cap (as described in 24 C.F.R. §  983.56), which will be set-aside for occupancy by Qualifying Families; and
 
(i)         The initial Rent to Owner (for the first 12 months of the HAP Contract term).

15.4.3  When HAP Contract is Executed

(a)        BHA inspection of housing.

(1)        Before execution of the HAP Contract, the BHA must inspect each contract Unit in accordance with 24 C.F.R. § 983.103(b).
           
(2)        The BHA may not enter into a HAP Contract for any contract Unit until the BHA has determined that the Unit complies with the HQS.

(b)        Newly constructed or rehabilitated housing.

(1)        In the case of newly constructed or rehabilitated housing the HAP Contract shall be executed after the BHA has inspected the completed units and has determined that the units have been completed in accordance with the Agreement and the Owner has furnished all required evidence of completion (see 24 C.F.R. §§ 983.155 and 983.156).
 
(2)        In the HAP Contract, the Owner certifies that the units have been completed in accordance with the Agreement. Completion of the units by the Owner and acceptance of units by the BHA is subject to the provisions of the Agreement.

15.4.4  Term of HAP Contract           

(a)        Ten-year initial term.
 
The BHA may enter into a HAP Contract with an Owner for an initial term of up to ten years for each contract Unit. The length of the term of the HAP Contract for any contract Unit may not be less than one year, nor more than ten years.
 
(b)        Extension of term.
 
Within one year before expiration, the BHA may agree to extend the term of the HAP Contract for an additional term of up to five years if the BHA determines an extension is appropriate to continue providing affordable housing for low-income families. Subsequent extensions are subject to the same limitations. Any extension of the term must be on the form and subject to the conditions prescribed by HUD at the time of the extension.
 
(c)        Termination by BHA--insufficient funding. (See also section 13.4)

(1)        The HAP Contract must provide that the term of the PHA's contractual commitment is subject to the availability of sufficient appropriated funding (budget authority) as determined by HUD or by the PHA in accordance with HUD instructions. For purposes of this section, "sufficient funding'' means the availability of appropriations, and of funding under the ACC from such appropriations, to make full payment of housing assistance payments to the Owner for any contract year in accordance with the terms of the HAP Contract.
 
(2)        The availability of sufficient funding must be determined by HUD or by the BHA in accordance with HUD instructions. If it is determined that there may not be sufficient funding to continue housing assistance payments for all contract units and for the full term of the HAP Contract, the BHA has the right to terminate the HAP Contract by notice to the Owner for all or any of the contract units. Such action by the BHA shall be implemented in accordance with HUD instructions. The BHA reserves the right to exercise full and unencumbered discretion as to which HAP Contract may or may not be terminated due to insufficient funding, including all PBV contracts in those areas not specifically referenced by a HUD directive.

(d)        Termination by Owner--reduction below initial rent.
 
The Owner may terminate the HAP Contract, upon notice to the BHA, if the amount of the Rent to Owner for any contract Unit, as adjusted in accordance with 24 C.F.R. § 983.302, is reduced below the amount of the initial Rent to Owner (Rent to Owner at the beginning of the HAP Contract term). In this case, the assisted families residing in the contract units will be offered tenant-based voucher assistance.

15.4.5  HAP Contract Amendments

(a)        Amendment to substitute contract units.
 
At the discretion of the BHA and subject to all PBV requirements, the HAP Contract may be amended to substitute a different Unit with the same number of bedrooms in the same building for a previously covered contract Unit. Prior to such substitution, the BHA must inspect the proposed substitute Unit and must determine the reasonable rent for such Unit.
 
(b)        Amendment to add contract units.
 
At the discretion of the BHA, and provided that the total number of units in a building that will receive PBV assistance or other project-based assistance will not exceed 25 percent of the number of dwelling units (assisted or unassisted) in a non-exception building or the 20 percent of authorized annual budget authority as provided in 24 C.F.R. § 983.6, a HAP Contract may be amended during the three-year period immediately following the execution date of the HAP Contract to add additional PBV contract units in the same building. An amendment to the HAP Contract is subject to all PBV requirements (e.g., rents are reasonable), except that a new PBV request for proposals is not required. The anniversary and expiration dates of the HAP Contract for the additional units must be the same as the anniversary and expiration dates of the HAP Contract term for the PBV units originally placed under HAP Contract.

(c)        Amendment to add a preference - At the discretion of the BHA and subject to all PBV requirements, the HAP Contract may be amended to add a preference.

(c)        Staged completion of contract units.
 
Even if contract units are placed under the HAP Contract in stages commencing on different dates, there is a single annual anniversary for all contract units under the HAP Contract. The annual anniversary for all contract units is the annual anniversary date for the first contract units placed under the HAP Contract. The expiration of the HAP Contract for all the contract units completed in stages must be concurrent with the end of the HAP Contract term for the units originally placed under HAP Contract.

15.4.6  Condition of Contract Units

(a)        Owner maintenance and operation.           

(1)        The Owner must maintain and operate the contract units and premises in accordance with the HQS, including performance of ordinary and extraordinary maintenance.
 
(2)        The Owner must provide all the services, maintenance, equipment, and utilities specified in the HAP Contract with the BHA and in the Lease with each assisted Family.
 
(3)        At the discretion of the BHA, the HAP Contract may also require continuing Owner compliance during the HAP term with additional housing quality requirements specified by the BHA (in addition to, but not in place of, compliance with the HUD-prescribed HQS). Such additional requirements may be designed to assure continued compliance with a design, architecture, or quality requirement specified in the Agreement.

 (b)        Remedies for HQS violation.

(1)        The BHA must vigorously enforce the Owner's obligation to maintain contract units in accordance with the HQS. The BHA may not make any HAP payment to the Owner for a contract Unit covering any period during which the contract Unit does not comply with the HQS.
 
(2)               If the BHA determines that a contract Unit is not in accordance with the housing quality standards (or other HAP Contract requirement), the BHA may exercise any of its remedies under the HAP Contract for all or any contract units. Such remedies include termination of housing assistance payments, abatement or reduction of housing assistance payments, reduction of contract units, and termination of the HAP Contract.  If the BHA terminates the HAP Contract for a particular PBV Unit the BHA will attempt to relocate the participant to another PBV Unit.  If there are no PBV units available in the building or otherwise suitable, the BHA will offer the Family a tenant-based voucher if they are available. If the Family has been in the PBV program for more than one-year, the Family may request a tenant-based voucher.

 (c)        Maintenance and replacement--Owner's standard practice.
 
Maintenance and replacement (including redecoration) must be in accordance with the standard practice for the building concerned as established by the Owner.           

15.4.7  Owner Responsibilities                       

The Owner is responsible for performing all of the Owner responsibilities under the Agreement and the HAP Contract. 24 C.F.R. § 982.452 (Owner Responsibilities) applies.

15.4.8  Owner Certification

By execution of the HAP Contract, the Owner certifies that at such execution and at all times during the term of the HAP Contract:
                       
(a)        All contract units are in good and tenantable condition. The Owner is maintaining the premises and all contract units in accordance with the HQS.
 
(b)        The Owner is providing all the services, maintenance, equipment, and utilities as agreed to under the HAP Contract and the Leases with assisted families.
                       
(c)        Each contract Unit for which the Owner is receiving housing
assistance payments is leased to an eligible Family referred by the BHA, and the Lease is in accordance with the HAP Contract and HUD requirements.
 
(d)        To the best of the Owner's knowledge, the members of the Family reside in each contract Unit for which the Owner is receiving housing assistance payments, and the Unit is the Family's only residence.
 
(e)        The Owner (including a principal or other interested party) is not the spouse, parent, child, grandparent, grandchild, sister, or brother of any member of a Family residing in a contract Unit.
 
(f)         The amount of the housing assistance payment is the correct amount due under the HAP Contract.
 
(g)        The Rent to Owner for each contract Unit does not exceed rents charged by the Owner for other comparable unassisted Units.
 
(h)        Except for the housing assistance payment and the tenant rent as provided under the HAP Contract, the Owner has not received and will not receive any payment or other consideration (from the Family, the BHA, HUD, or any other public or private source) for rental of the contract Unit.
 
(i)         The Family does not own or have any interest in the contract Unit.

15.5     Occupancy

15.5.1  How Participants are Selected

(a)        Who may receive PBV assistance?

(1)        The BHA may select Families who are Participants in the BHA's tenant-based voucher program and Families who have applied for admission to the voucher program.
 
(2)        Except for voucher participants (determined eligible at original admission to the voucher program), the BHA may only select families determined eligible for admission at commencement of PBV assistance.
 
(3)        The BHA maintains site based waiting lists for each PBV Development in its portfolio.  An otherwise eligible applicant has the ability to apply for any and all open site based waiting lists
 
(4)        An Eligible applicant with the earliest approval date,  Priority and/or Preference(s) will receive one offer of an apartment of appropriate size at a PBV site of choice. Failure to accept the first housing offer will result in the withdrawal from the particular site where the offer was made.
Failure to accept the housing offer will result in the withdrawal from all PBV site based waiting lists. The Applicant will lose any approved Priority and/or Preference. Furthermore, the Applicant will only be eligible to re-apply after one year from the date of the most
recent apartment assignment rejection
 
Withdrawal from a PBV site based waiting list(s) will have no effect on an applicant’s  positionon either the BHA’s tenant based HCVP waiting list or the BHA’s Public Housing waiting list(s).                                               

(b)        Protection of in-place Families.

(1)        The term "in-place Family'' means an eligible Family residing in a proposed contract Unit on the proposal selection date.    
 
(2)        In order to minimize displacement of in-place families, if a Unit to be placed under contract that is either an existing Unit or one requiring rehabilitation is occupied by an eligible Family on the proposal selection date, the in-place Family must be placed on the BHA's waiting list (if the Family is not already on the list) and, once its continued eligibility is determined, given an absolute selection preference and referred to the project Owner for an appropriately sized PBV Unit in the project. (However, the BHA may deny assistance for the grounds specified in 24 C.F.R. § 982.552 and 982.553.) Admission of such families is not subject to income-targeting under 24 C.F.R. § 982.201(b)(2)(i), and such families must be referred to the Owner from the BHA's waiting list. BHA shall give such families priority for admission to the PBV program. This protection does not apply to families that are not eligible to participate in the program on the proposal selection date.

15.5.2  BHA Information for Accepted Family

(a)        Oral briefing.  

When a Family accepts an offer of PBV assistance, the BHA must give the Family an oral briefing. The briefing must include information on the following subjects:                                  

(1)        A description of how the program works; and
 
(2)        Family and owner responsibilities.                                               

(b)        Information packet.

The BHA must give the Family a packet that includes information on the following subjects:  

(1)        How the BHA determines the total tenant payment for a Family;
 
(2)        Family obligations under the program; and
 
(3)        Applicable fair housing information.

(c)        Providing information for persons with Disabilities.

(1)        If the Family head or spouse is a Disabled Person, the BHA must take appropriate steps to assure effective communication, in accordance with 24 CFR 8.6, in conducting the oral briefing and in providing the written information packet, including in alternative formats.
 
(2)        The BHA shall have some mechanism for referring to accessible PBV units to a Family that includes a person with mobility impairment.

(d)        Providing information for persons with limited English ability.
 
The BHA will communicate with persons of limited English ability in accordance with section1.3.4.

15.5.3  Leasing of Contract Units           

(a)        Owner selection of tenants.

(1)        During the term of the HAP contract, the owner must Lease contract units only to eligible Families selected and referred by the BHA from the BHA waiting list.
 
(2)        The owner is responsible for adopting written tenant selection procedures that are consistent with the purpose of improving housing opportunities for very Low-Income Families and reasonably related to program eligibility and an applicant's ability to perform the lease obligations.
 
(3)        An owner must promptly notify in writing any rejected applicant of the grounds for any rejection.                                   

(b)        Size of unit.
 
The contract unit Leased to each Family must be appropriate for the size of the Family under the BHA's subsidy standards.  See  section 15.5.9

15.5.4  Vacancies

(a)        Filling vacant units.

(1)        The Owner must promptly notify the BHA of any vacancy or expected vacancy in a contract unit. After receiving the owner notice, the BHA must make every reasonable effort to refer promptly a sufficient number of Families for the owner to fill such vacancies.
 
(2)        The Owner must Lease vacant contract units only to eligible Families on the BHA waiting list referred by the BHA.
 
(3)        The BHA and the Owner must make reasonable good faith efforts to minimize the likelihood and length of any vacancy.                                               

(b)        Reducing number of contract units.
 
If any contract units have been vacant for a period of 120 or more days since owner notice of vacancy (and notwithstanding the reasonable good faith efforts of the BHA to fill such vacancies), the BHA may give notice to the owner amending the HAP contract to reduce the number of contract units by subtracting the number of contract units (by number of bedrooms) that have been vacant for such period.
 
The BHA may add units to the building by amending the HAP contract in accordance with section 15.4.5

15.5.5  Tenant Screening           

(a)        BHA option.                                   

(1)        The BHA will screen tenants for eligibility. The owner is also responsible for screening tenants.

(b)        Owner responsibility

(1)        The owner is responsible for screening of families on the basis of their tenancy histories. An owner may consider a Family's background with respect to such factors as:

(i)         Payment of rent and utility bills;
 
(ii)        Caring for a unit and premises;
 
(iii)       Respecting the rights of other residents to the peaceful enjoyment of their housing;
                                               
(iv)       Drug-related criminal activity or other criminal activity that is a threat to the health, safety, or property of others; and
 
(v)        Compliance with other essential conditions of tenancy;

(c)        Providing tenant information to owner.

(1)        The BHA will provide information to the owner in accordance with  section 7.3.3:

15.5.6  Lease                       

(a)        Tenant's legal capacity
 
The tenant must have legal capacity to enter a Lease under State and local law. ``Legal capacity'' means that the tenant is bound by the terms of the Lease and may enforce the terms of the Lease against the Owner.
           
(b)        Form of Lease

(1)        The tenant and the Owner must enter a written Lease for the Unit. The Lease must be executed by the Owner and the tenant.
 
(2)        If the Owner uses a standard Lease form for rental to unassisted tenants in the locality or the premises, the Lease must be in such standard form, except as provided in paragraph (b)(4) of this section. If the Owner does not use a standard Lease form for rental to unassisted tenants, the Owner may use another form of Lease, such as a BHA model Lease.
                                   
(3)        In all cases, the Lease must include a HUD-required tenancy addendum. The tenancy addendum must include, word-for-word, all provisions required by HUD.
 
(4)        The BHA will review the Owner's Lease form to determine if the Lease complies with State and local law. The BHA may decline to approve the tenancy if the BHA determines that the Lease does not comply with state or local law.           

(c)        Required information
 
The Lease must specify all of the following:                                   

(1)        The names of the Owner and the tenant;
                                   
(2)        The Unit rented (address, Apartment number, if any, and any other information needed to identify the leased contract unit);
                                   
(3)        The term of the Lease (initial term and any provision for renewal);
                                   
(4)        The amount of the tenant Rent to Owner. The tenant Rent to Owner is subject to change during the term of the Lease in accordance with HUD requirements;
                                   
(5)        A specification of what services, maintenance, equipment, and utilities are to be provided by the Owner; and    
 
(6)        The amount of any charges for food, furniture, or supportive services.

(d)        Tenancy addendum

(1)        The tenancy addendum in the Lease shall state:

(i)         The program tenancy requirements (as specified in this part);
                                               
(ii)        The Family Composition as approved by the BHA (names of Family members and any BHA-approved Personal Care Attendant).

(2)       All provisions in the HUD-required tenancy addendum must be included in the Lease. The terms of the tenancy addendum shall prevail over other provisions of the Lease.

(e)        Changes in Lease

(1)        If the tenant and the Owner agree to any change in the Lease, such change must be in writing, and the Owner must immediately give the BHA a copy of all such changes.
 
(2)        The Owner must notify the BHA in advance of any proposed change in Lease requirements governing the allocation of tenant and Owner responsibilities for utilities. Such changes may be made only if approved by the BHA and in accordance with the terms of the Lease relating to its amendment. The BHA must redetermine reasonable rent, in accordance with 24 C.F.R. § 983.303(c), based on any change in the allocation of responsibility for utilities between the Owner and the tenant, and the redetermined reasonable rent shall be used in calculation of Rent to Owner from the effective date of the change.

(f)         Initial term of Lease.
 
The initial Lease term must be for at least one year.
 
(g)        Lease provisions governing tenant absence from the Unit.
 
The Lease may specify a maximum period of tenant absence from the Unit that is shorter than the maximum period permitted by BHA policy.

15.5.7  Owner Termination of Tenancy and Eviction

(a)        In general.
 
24 C.F.R. § 982.310 applies with the exception that §§  982.310(d)(1)(iii) and (iv) do not apply to the PBV program. (In the PBV program, “good cause” does not include a business or economic reason or desire to use the Unit for an individual, Family, or non-residential rental purpose.) 24 C.F.R. §§ 5.858-5.861 on eviction for drug and alcohol abuse apply to this part.
 
(b)        Upon Lease expiration, an Owner may:

(1)        Renew the Lease;
 
(2)        Refuse to renew the Lease for good cause as stated in paragraph (a) of this section;
 
(3)        Refuse to renew the Lease without good cause, in which case the BHA would provide the Family with a tenant-based voucher, if available, and the Unit would be removed from the PBV HAP Contract.    

(c)        If a Family resides in a project-based Unit excepted from the twenty five percent (25%) per-building cap on project-basing because of participation in an FSS or other supportive services program, and the Family fails, without good cause, to complete its FSS contract of participation or supportive services requirement, such failure is grounds for Lease termination by the Owner.

15.5.8  Security deposit: amounts owed by tenant

(a)        The Owner may collect a security deposit from the tenant in accordance with Massachusetts State law.   

15.5.9  Overcrowded, under-occupied, and accessible units

(a)        Family occupancy of wrong-size or accessible Unit.

The BHA subsidy standards determine the appropriate Unit size for the Family size and composition. If the BHA determines that a Family is occupying a:

(1)        Wrong-size Unit, or     

(2)        Unit with accessibility features that the Family does not require, and the Unit is needed by a Family that requires the accessibility features, the BHA must promptly notify the Family and the Owner of this determination, and of the BHA's offer of continued assistance in another Unit pursuant to paragraph (b) of this section.

(b)        BHA offer of continued assistance.

(1)        If a Family is occupying a:

(i)         Wrong-size Unit, or

(ii)        Unit with accessibility features that the Family does not require, and the Unit is needed by a Family that requires the accessibility features, the BHA must offer the Family the opportunity to receive continued housing assistance in another Unit.

(2)        The BHA will offer continued housing assistance in the form of:

(i)                  PBV assistance in an appropriate-size Unit (in the same building or in another building);

(A)       When offering continued assistance in another PBV Unit, the BHA will first attempt to place the Family in the same building.  If no units are available in the same building, the BHA will attempt to offer the Family a PBV Unit with same Owner.  If a Unit is not available in the same building or with the same Owner, then the BHA will offer the Family any other PBV Unit that they qualify for.

(ii)        Tenant-based rental assistance under the voucher program

(c)       BHA termination of housing assistance payments

(1)        If the BHA offers the Family the opportunity to receive tenant-based rental assistance under the voucher program, the BHA must terminate the housing assistance payments for a wrong-sized or accessible Unit at expiration of the term of the Family's voucher (including any extension granted by the BHA).

(2)        If the BHA offers the Family the opportunity for another form of continued housing assistance in accordance with paragraph (b)(2) of this section (not in the tenant-based voucher program), and the Family does not accept the offer, does not move out of the PBV Unit within 120 days from first day of the month after the offer, or both, the BHA must terminate the housing assistance payments for the wrong-sized or accessible Unit at the end of the 120 days from the first day of the month after the offer.

15.5.10            Family right to move                       

(a)        The Family may terminate the assisted Lease at any time after the first year of occupancy.  

The Family must give the Owner advance written notice of intent to vacate (with a copy to the BHA) in accordance with the Lease.  See also section 11.4.  

(b)        If the Family has elected to terminate the Lease in this manner, the BHA must offer the Family the opportunity for continued tenant-based rental assistance, in the form of either assistance under the voucher program or other comparable tenant-based rental assistance.

(c)        Before providing notice to terminate the Lease under paragraph (a) of this section, a Family must make a written request for tenant-based rental assistance if the Family wishes to move with continued assistance. If voucher or other comparable tenant-based rental assistance is not immediately available upon termination of the Family's Lease of a PBV Unit, the BHA will place the Family on a waiting list by date and time of request to receive the next available opportunity for continued tenant-based rental assistance.

(d)        If the Family terminates the assisted Lease before the end of one year, the Family relinquishes the opportunity for continued tenant-based assistance.

(e)        Good standing requirement to receive continued assistance in the tenant-based voucher program.  The BHA may deny the opportunity for a tenant-based voucher where there are grounds for denial or termination.  See 24 C.F.R. § 982.314(e)(2).  

15.5.11            When occupancy may exceed 25-percent cap

(a)        Except as provided in 24 C.F.R. § 983.56(b), the BHA may not pay housing assistance under the HAP Contract for contract units in excess of the 25 percent cap pursuant to 24 C.F.R.  § 983.56(a).

(b)        In referring families to the Owner for admission to excepted units, the BHA must give preference to Elderly or Disabled Families; or to Families receiving supportive services.

(c)        If a Family at the time of initial tenancy is receiving and while the resident of an excepted Unit has received FSS supportive services or any other service as defined in the BHA administrative plan, and successfully completes the FSS contract of participation or the supportive services requirement, the Unit continues to count as an excepted Unit for as long as the Family resides in the Unit.

(d)        A Family (or the remaining members of the Family) residing in an excepted Unit that no longer meets the criteria for a “qualifying Family'' in connection with the 25 percent per building cap exception (e.g., a Family that does not successfully complete its FSS contract of participation or the supportive services requirement as defined in the BHA administrative plan or the remaining members of a Family that no longer qualifies for Elderly or Disabled Family status) must vacate the Unit within a reasonable period of time established by the BHA, and the BHA shall cease paying housing assistance payments on behalf of the non-qualifying Family. If the Family fails to vacate the Unit within the established time, the Unit must be removed from the HAP Contract unless the project is partially assisted, and it is possible for the HAP Contract to be amended to substitute a different Unit in the building in accordance with 24 C.F.R.  § 983.206(a); or the Owner terminates the Lease and evicts the Family. The housing assistance payments for a Family residing in an excepted Unit that is not in compliance with its Family obligations (e.g., a Family fails, without good cause, to successfully complete its FSS contract of participation or supportive services requirement) shall be terminated by the BHA.

15.6     Rent to Owner

15.6.1  Determining the Rent to Owner

(a)    Initial and Redetermined rents

(1)        The amount of the initial and redetermined Rent to Owner is determined in accordance with this section and 24 C.F.R. § 983.302.

(2)        The amount of the initial Rent to Owner is established at the beginning of the HAP Contract term.

(3)        The Rent to Owner is redetermined at the Owner's request for a rent increase in accordance with this section and 24 C.F.R.  § 983.302. The Rent to Owner is also redetermined at such time when there is a five percent or greater decrease in the published FMR in accordance with 24 C.F.R. § 983.302.

(b)        Amount of Rent to Owner

Except for certain tax credit units as provided in paragraph (c) of this section, the Rent to Owner must not exceed the lowest of:

(1)        An amount determined by the BHA, not to exceed 110 percent of the applicable fair market rent (or any exception payment standard approved by the Secretary) for the Unit bedroom size minus any utility allowance;

(2)        The Reasonable Rent; or

(3)        The rent requested by the Owner.

(c)        Rent to Owner for Certain Tax Credit Units

(1)        The BHA will determine the rent on tax credit units in accordance with federal law.  

(d)        Rent to Owner for Other Tax Credit Units

Except in the case of a tax credit Unit described in paragraph (c)(1) of this section, the Rent to Owner for all other tax credit units is determined pursuant to paragraph (b) of this section.

(e)        Reasonable Rent

The BHA shall determine Reasonable Rent in accordance with 24 C.F.R. § 983.303. The Rent to Owner for each contract Unit may at no time exceed the Reasonable Rent.

(f)         Use of FMRs and utility allowance schedule in determining the amount of Rent to Owner.

(1)        Amounts Used

(i)         Determination of initial rent (at beginning of HAP Contract term). When determining the initial Rent to Owner, the BHA shall use the most recently published FMR in effect and the utility allowance schedule in effect at execution of the HAP Contract. At its discretion, the BHA may use the amounts in effect at any time during the 30-day period immediately before the beginning date of the HAP Contract.

(ii)        Redetermination of Rent to Owner. When redetermining the Rent to Owner, the BHA shall use the most recently published FMR and the BHA utility allowance schedule in effect at the time of redetermination. At its discretion, the BHA may use the amounts in effect at any time during the 30-day period immediately before the redetermination date.

(2)        Exception Payment Standard and PHA Utility Allowance Schedule

(i)         Any HUD-approved exception payment standard amount under 24 C.F.R. § 982.503(c) applies to both the tenant-based and project-based voucher programs.  HUD will not approve a different exception payment standard amount for use in the PBV program.

(ii)        The PHA may not establish or apply different utility allowance amounts for the PBV program.  The same PHA utility allowance schedule applies to both the tenant-based and the PBV programs.

(g)        BHA-Owned Units

For BHA-owned PBV units, the initial Rent to Owner and the annual redetermination of rent at the annual anniversary of the HAP Contract are determined by the independent entity approved by HUD in accordance with 24 C.F.R. § 983.59. The BHA must use the Rent to Owner established by the independent entity.

15.6.2  Redetermination of Rent to Owner

(a)        The BHA must redetermine the Rent to Owner:

(1)        Upon the Owner's request; or

(2)        When there is a five percent or greater decrease in the published FMR in accordance with 24 C.F.R. § 983.301.

(b)        Rent Increase

(1)        The BHA may not make any rent increase other than an increase in the Rent to Owner as determined pursuant to 24 C.F.R. § 983.301.

(2)        The Owner must submit a written request for a rent increase at least sixty (60) days prior to the date of the anniversary of the HAP contact to receive and increase in rent.  A rent increase that is not submitted at least (60) days prior to the date of the anniversary of the HAP contract shall not be processed until the following year.    

(c)        Rent Decrease

If there is a decrease in the Rent to Owner, as established in accordance with 24 C.F.R. § 983.301, the Rent to Owner must be decreased, regardless of whether the Owner requested a rent adjustment.

(d)        Notice of rent redetermination

Rent to Owner is redetermined by written notice by the BHA to the Owner specifying the amount of the redetermined rent.  The BHA notice of the rent adjustment constitutes an amendment of the Rent to Owner specified in the HAP Contract.     

(e)        Contract year and annual anniversary of the HAP Contract

(1)        The contract year is the period of 12 calendar months preceding each annual anniversary of the HAP Contract during the HAP Contract term. The initial contract year is calculated from the first day of the first calendar month of the HAP Contract term.

(2)        The annual anniversary of the HAP Contract is the first        day of the first calendar month after the end of the preceding contract year. The adjusted Rent to Owner amount applies for the period of 12 calendar months from the annual anniversary of the HAP Contract.

(3)        See 24 C.F.R. § 983.206(c) for information on the annual anniversary of the HAP Contract for contract units completed in stages.

15.6.3  Reasonable Rent

(a)        Owner Certification of Comparability

By accepting each monthly housing assistance payment from the BHA, the Owner certifies that the Rent to Owner is not more than rent charged by the Owner for comparable unassisted units in the premises. The Owner must give the BHA information requested by the BHA on rents charged by the Owner for other units in the premises or elsewhere.

(b)        Determining Reasonable Rent for BHA-Owned Units

(1)        For BHA-owned units, the amount of the reasonable rent must be determined by an independent agency approved by HUD in accordance with 24 C.F.R. § 983.59, rather than by the BHA. Reasonable rent must be determined in accordance with this section.

(2)        The independent entity must furnish a copy of the independent entity determination of reasonable rent for BHA-owned units to the BHA and to the HUD field office where the project is located.

15.6.4  Other Subsidy: Effect on Rent to Owner    

(a)        General

In addition to the rent limits established in accordance with Sec.  983.301 and 24 C.F.R. § 982.302, the following restrictions apply to certain units.     

(b)        HOME

For units assisted under the HOME program, rents may not exceed rent limits as required by the HOME program (24 C.F.R. § 92.252).

(c)        Subsidized Projects

(1)        This paragraph (c) applies to any contract units in any of the following types of federally subsidized project:

(i)         An insured or non-insured Section 236 project;

(ii)        A formerly insured or non-insured Section 236 project that continues to receive Interest Reduction Payment following a decoupling action;

(iii)       A Section 221(d)(3) below market interest rate (BMIR) project;

(iv)       A Section 515 project of the Rural Housing Service;

(v)        A project receiving low-income housing tax credits;

(vi)       Any other type of federally subsidized project specified by HUD.

(2)        The Rent to Owner may not exceed the subsidized rent (basic rent) or tax credit rent as determined in accordance with requirements for the applicable federal program listed in paragraph (c)(1) of this section.

(d)        Combining Subsidy

Rent to Owner may not exceed any limitation required to comply with HUD subsidy layering requirements. See 24 C.F.R. § 983.55.

(e)        Other Subsidy: BHA Discretion to Reduce Rent

At its discretion, a BHA may reduce the initial Rent to Owner because of other governmental subsidies, including tax credit or tax exemption, grants, or other subsidized financing.

 (f)        Prohibition of Other Subsidy

For provisions that prohibit PBV assistance to units in certain types of subsidized housing, see 24 C.F.R. § 983.54.
15.6.5  Rent to Owner: Effect of Rent Control and Other Rent Limits

In addition to the limitation to 110 percent of the FMR in 24 C.F.R. § 983.301(b)(1), the rent reasonableness limit under §§ 983.301(b)(2) and 983.303, the rental determination provisions of § 983.301(f), the special limitations for tax credit units under § 983.301(c), and other rent limits under this part, the amount of Rent to Owner also may be subject to rent control or other limits under local, state, or federal law.

 15.6.6  Payment to Owner

(a)        When Payments are Made

(1)        During the term of the HAP Contract, the BHA shall make housing assistance payments to the Owner in accordance with the terms of the HAP Contract. The payments shall be made for the months during which a contract Unit is Leased to and actually occupied by an eligible Family.

(2)        Except for discretionary vacancy payments in accordance with 24 C.F.R. § 983.352, the BHA may not make any housing assistance payment to the Owner for any month after the month when the Family moves out of the Unit (even if household goods or property are left in the unit).

(b)        Monthly Payment

Each month, the BHA shall make a housing assistance payment to the Owner for each contract Unit that complies with the HQS and is Leased to and occupied by an eligible Family in accordance with the HAP Contract.

(c)        Calculating Amount of Payment

The monthly housing assistance payment by the BHA to the Owner for a contract Unit Leased to a Family is the Rent to Owner minus the tenant rent (total tenant payment minus the utility allowance).

(d)        Prompt Payment

The housing assistance payment by the BHA to the Owner under the HAP Contract shall be paid to the Owner on or about the first day of the month for which payment is due, unless the Owner and the BHA agree on a later date.     
(e)        Owner Compliance with Contract

To receive housing assistance payments in accordance with the HAP Contract, the Owner must comply with all the provisions of the HAP Contract. Unless the Owner complies with all the provisions of the HAP Contract, the Owner does not have a right to receive housing assistance payments.

15.6.7  Vacancy Payment

(a)        Payment for Move-out Month

If an assisted Family moves out of the Unit, the Owner may keep the housing assistance payment payable for the calendar month when the Family moves out (“move-out month''). However, the Owner may not keep the payment if the BHA determines that the vacancy is due to the Owner's fault.

15.6.8  Tenant Rent; Payment to Owner    

(a)        BHA Determination

(1)        The tenant rent is the portion of the Rent to Owner paid by the Family. The BHA determines the tenant rent in accordance with HUD requirements.

(2)        Any changes in the amount of the tenant rent will be effective on the date stated in a notice by the BHA to the Family and the Owner. See also section 8.6 of this Administrative Plan.

(b)        Tenant Payment to Owner

(1)        The Family is responsible for paying the tenant rent (total tenant payment minus the utility allowance).

(2)        The amount of the tenant rent as determined by the BHA is the maximum amount the Owner may charge the Family for rent of a contract Unit. The tenant rent is payment for all housing services, maintenance, equipment, and utilities to be provided by the Owner without additional charge to the tenant, in accordance with the HAP Contract and Lease.

(3)        The Owner may not demand or accept any rent payment from the tenant in excess of the tenant rent as determined by the BHA. The Owner must immediately return any excess payment to the tenant.

(4)        The Family is not responsible for payment of the portion of the Rent to Owner covered by the housing assistance payment under the HAP Contract. The Owner may not terminate the tenancy of an assisted Family for nonpayment of the BHA housing assistance payment.     

(c)        Limit of BHA Responsibility

(1)        The BHA is responsible only for making housing assistance payments to the Owner on behalf of a Family in accordance with the HAP Contract. The BHA is not responsible for paying the tenant rent, or for paying any other claim by the Owner.

(2)        The BHA may not use housing assistance payments or other program funds (including any administrative fee reserve) to pay any part of the tenant rent or to pay any other claim by the Owner. The BHA may not make any payment to the Owner for any damage to the Unit, or for any other amount owed by a Family under the Family's Lease or otherwise.

(d)        Utility Reimbursement

(1)        If the amount of the utility allowance exceeds the total tenant payment, the BHA shall pay the amount of such excess as a reimbursement for tenant-paid utilities (“utility reimbursement'') and the tenant rent to the Owner shall be zero.

(2)        The BHA either may pay the utility reimbursement to the Family or may pay the utility bill directly to the utility supplier on behalf of the Family.

(3)        If the BHA chooses to pay the utility supplier directly, the BHA must notify the Family of the amount paid to the utility supplier.

15.6.9  Other Fees and Charges

(a)        Meals and Supportive Services

(1)        Except as provided in paragraph (a)(2) of this section, the Owner may not require the tenant or Family members to pay charges for meals or supportive services. Non-payment of such charges is not grounds for termination of tenancy.

(2)        In assisted living developments receiving project-based assistance, Owners may charge tenants, Family members, or both for meals or supportive services. These charges may not be included in the Rent to Owner, nor may the value of meals and supportive services be included in the calculation of reasonable rent. Non-payment of such charges is grounds for termination of the Lease by the Owner in an assisted living development.

(b)        Other Charges by Owner

The Owner may not charge the tenant or Family members extra amounts for items customarily included in rent in the locality or provided at no additional cost to unsubsidized tenants in the premises.  If an Owner does charge extra amounts the BHA reserves the right to terminate all HAP Contracts with that Owner.

[1] The Boston Environmental Department is responsible for environmental review under NEPA in the City of Boston.  The department analyzes projects for potential environmental impacts on the City of Boston and its residents. The reviews identify specific environmental impacts and the department suggests potential solutions.