IPED2008 REAL ESTATE UPDATE

December, 2008San Juan, Puerto Rico

PRESENTATION OFHUD’S SECTION 202

ELDERLY HOUSING PROJECTS

Michael Hawes Reardon, Esq.Nixon Peabody LLP

PROGRAM HISTORY

Enacted as section 202 of the Housing Act of 1959, but has undergone several evolutionsTHREE BASIC PERIODSA. 1959 to 1975 – Direct Federal Loans without operating subsidyB. 1975 to 1990 – Direct Federal Loans with long term section 8 housing assistance payments contractC. 1990 to Present – Capital Advance with long term section 8 Project Rental Assistance Contract (“PRAC”)D. American Homeownership and Economic Opportunity Act of 2000 – changed program structure to allow for ownership by for-profit limited partnerships

SECTION 202 LOAN PROGRAM

A. Direct Loan Program for Non-Profits1. Non-Profits

- participation in program limited to non-profit sponsors and borrowers

- sponsor applies to HUD for funds and then establishes non-profit entity to own the specific projecto no earnings inure to the benefit of memberso governing board which is representative of the community and

is responsible for operation of the projecto approved by HUD as to financial responsibility

- HUD regulations limit the non-profit owner entity to an incorporated private institution or foundation with 501(c)(3) or (c)(4) IRS ruling

SECTION 202 LOAN PROGRAM (con’t)

2. Loan Terms- Generally, loans were for a 40-year term- Interest

o in early years of program interest was set a 3%o in later years, interest established by HUD annually at

the cost of borrowing of the Federal Governmento range of rates starting in mid-1970s with the highest

being @ 9.50% during the early 1980s

SECTION 202 LOAN PROGRAM (con’t)

B. Rent and Occupancy Terms1. Older Loan Projects (pre-1975)

- generally, older projects limited occupancy to low and moderate income families

- need to closely review Regulatory Agreement- rents and adjustments are budget-based to meet debt

service and operating expenses of the project

SECTION 202 LOAN PROGRAM (con’t)

2. Newer Loan Projects (post-1975)- generally, newer projects limit occupancy to low and very low

income families- since 1975, most project have 100% section 8 funding and are

similarly to section 8 in terms of income, rent, and generally, occupancy requirements

- need to review section 8 HAP contract to determine income and rent restrictionso units available pre-October, 1981 – 25% low incomeo units available post-October, 1981 – 15% low income

- rents generally are based on section 8 requirements – family pays 30% of adjusted income

- rent adjustments may be AAF or Budget-based

SECTION 202 CAPITAL ADVANCE PROGRAM

Title VIII of Cranston-Gonzalez National Affordable Housing Act – 1990 – supportive housing for elderly

A. Capital Advance – 1991 to present1. Funding through Capital Advance not Direct Loan

- basically a grant or forgivable loan to the non-profit owner- no interest and no repayment so long as project remains

available for very low-income elderly persons for 40 years- HUD secures this use restriction through a note, mortgage,

regulatory agreement and use agreement

SECTION 202 CAPITAL ADVANCE PROGRAM (con’t)

B. Project Rental Assistance Contract (“PRAC”)1. All units shall be available for very low-income persons

2. Terms of rental assistance- rental assistance no longer provided under section 8- basic income and rental terms are the same as for the

section 8 program- rents are adjusted on a budget basis

3. Twenty v. Five Year PRAC term

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000A. Section 811 – Prepayment and Refinancing of Section 202/8 Projects (See HUD Housing Notices 2002-16; 2004-21)

1. Upon request of Owner, Secretary shall approve a prepayment as long as:- sponsor agrees to operate project in manner advantageous

to resident under the 202 loan agreement or the rental assistance contract

- refinancing results in lower interest rate and reduction in debt service payments

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)- Issues:

o when is HUD approval required – Notes 1977-1982o rates on older loans – 3%o subordination of older loans to new financingo how to calculate debt service reduction (exclude debt service

on rehab portion of new debt

2. Acceptable Project Ownership- really only applies where HUD approval is required- a limited partnership whose general partner is a nonprofit

organization or a corporation solely owner and controlled by a nonprofit organization

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)o Issues:

LLC not an acceptable owner Nonprofit general partner – 501(c)(3) status For-Profit GP controlled by nonprofit• May be an LLC• May not have two managing members

4. Use of Savings on Refinancing- rehab, modernization, retrofitting, improved common areas- construction of additional facility – including assisted living facility- increased supportive services – limitation to 15% of costs- conversion of efficiency units

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)5. Use of Reserves

- Residual Receipts - $500 per unit minimumo only applies when minimum amount in accounto 15% may be used for supportive services

- Reserve for Replacements - $1,000 per unit minimumo same purposes as uses of savings on debt serviceso generally, HUD prefers use for hard construction costs

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)6. Other Limitations

- Developer Feeo 15% of acceptable developer costs as defined by State

LIHTC program, oro Maximum allowed under State LIHTC program

- Limitation on Distributionso 6% distribution from surplus casho May include new LIHTC equity

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)B. Section 8 and Other Issues

1. Projects still under original Section 8 HAP contract- no rent increase allowed in conjunction with refinancing approval- may need to justify current rent levels – 8(c)(2)(C) US Housing Act of 1937

2. Section 8 Renewals- exception project renewals not subject to rent comparability study- initial renewal rent the lesser of existing rent plus an OCAF or a budget-

based rent- during term of renewal contract adjustments by OCAF or a budget-based

increase at request of owner- lesser of test will apply each time the renewal contract expires and is

renewed- owner may choose another renewal option, but then subjects renewals to

rent comparability study

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)3. Sale Proceeds to Nonprofit Seller

- Notice 2004-21 provides for proceeds equal to difference between unassisted market value and outstanding mortgage

- HUD policy has been unclear- Escrow Agreement for use of sales proceeds for other

affordable housing purposes

4. Flexible Subsidy Loans5. Multi-Project Transactions6. Use with Capital Advance Projects

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)C. Section 831 – Eligibility of For-Profit Limited Partnerships

Changed basic definition of private non-profit organization to include a for-profit limited partnership

- sole general partner must be an organization which meets following criteria

o no earnings inure to the benefit of memberso governing board is representative of the community and is

responsible for operation of the projecto Approved by HUD as to financial responsibility

- or must be a corporation wholly owned or controlled by such an organization

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT – enacted by

Congress in December of 2000 (con’t)D. Section 832 – Mixed Funding Sources

- removes limitation on use of only “non-Federal” sources for amenities and other design and construction features

- provides that assistance provided under section 202 may be “treated as amounts not derived from a Federal grant”.

E. Implications of these funding changes- allows broader flexibility for the development of elderly housing

projects using other forms of assistance, including LIHTCs- allows for the development of mixed-income projects including

both section 202 restricted units and non-section 202 units