Notes on 12 U.S.C. § 4101 : US Code - Notes

Search Notes on 12 U.S.C. § 4101 : US Code - Notes

(Pub. L. 100-242, title II, Sec. 211, as added Pub. L. 101-625,
title VI, Sec. 601(a), Nov. 28, 1990, 104 Stat. 4249.)
EFFECTIVE DATE
Section 605 of Pub. L. 101-625 provided that: "This subtitle
[subtitle A (Secs. 601-605) of title VI of Pub. L. 101-625,
enacting this chapter, amending sections 1715z-6 and 1715z-15 of
this title and section 1437f of Title 42, The Public Health and
Welfare, and enacting provisions set out below] shall take effect
on the date of the enactment of this Act [Nov. 28, 1990]."
SHORT TITLE
Section 201 of title II of Pub. L. 100-242, as added by Pub. L.
101-625, title VI, Sec. 601(a), Nov. 28, 1990, 104 Stat. 4249,
provided that: "This title [enacting this chapter, amending section
1715z-15 of this title and sections 1437f, 1472, 1485, and 1487 of
Title 42, The Public Health and Welfare, and enacting provisions
set out below] may be cited as the 'Low-Income Housing Preservation
and Resident Homeownership Act of 1990'."
APPLICABILITY
Section 235 of Pub. L. 100-242, as added by Pub. L. 101-625,
title VI, Sec. 601(a), Nov. 28, 1990, 104 Stat. 4274, provided
that: "Subject to section 605 of the Cranston-Gonzalez National
Affordable Housing Act [Pub. L. 101-625, set out above], the
requirements of this subtitle [subtitle B (Secs. 211-235) of title
II of Pub. L. 100-242, enacting this subchapter] shall apply to any
project that is eligible low-income housing on or after November 1,
1987."
REGULATIONS
Pub. L. 102-550, title III, Sec. 332, Oct. 28, 1992, 106 Stat.
3773, provided that: "Except as otherwise provided in this title
[enacting sections 4141 to 4147 of this title, amending sections
1715z-1, 1715z-6, 4103, 4105 to 4112, 4116, 4119, 4121, 4122, 4124,
and 4125 of this title, enacting provisions set out as notes under
this section and sections 1715z-6, 4109, and 4117 of this title,
and amending provisions set out as a note under this section], the
Secretary of Housing and Urban Development shall issue interim
regulations implementing this title and the amendments made by this
title not later than the expiration of the 90-day period beginning
on the date of the enactment of this Act [Oct. 28, 1992], which
shall take effect upon issuance. The Secretary shall issue final
regulations implementing this title and the amendments made by this
title after notice and opportunity for public comment regarding the
interim regulations, pursuant to the provisions of section 553 of
title 5, United States Code (notwithstanding subsections (a)(2),
(b)(B), and (d)(3) of such section). The duration of the period for
public comment shall not be less than 60 days, and the final
regulations shall be issued not later than the expiration of the 60-
day period beginning upon the conclusion of the comment period and
shall take effect upon issuance."
LOW-INCOME HOUSING PRESERVATION
Pub. L. 104-204, title II, Sept. 26, 1996, 110 Stat. 2883,
provided in part: "That of the total amount provided under this
head, $350,000,000 shall be available for use in conjunction with
properties that are eligible for assistance under the Low-Income
Housing Preservation and Resident Homeownership Act of 1990
(LIHPRHA) [see Short Title note above] or the Emergency Low Income
Housing Preservation Act of 1987 (ELIHPA) [see Codification note
set out preceding this section], of which $75,000,000 shall be
available for obligation until March 1, 1997 for projects (1) that
are subject to a repayment or settlement agreement that was
executed between the owner and the Secretary prior to September 1,
1995; (2) whose submissions were delayed as a result of their
location in areas that were designated as a Federal disaster area
in a Presidential Disaster Declaration; or (3) whose processing
was, in fact or in practical effect, suspended, deferred, or
interrupted for a period of twelve months or more because of
differing interpretations, by the Secretary and an owner or by the
Secretary and a State or local rent regulatory agency, concerning
the timing of filing eligibility or the effect of a presumptively
applicable State or local rent control law or regulation on the
determination of preservation value under section 213 of LIHPRHA,
as amended [12 U.S.C. 4103], if the owner of such project filed
notice of intent to extend the low-income affordability
restrictions of the housing, or transfer to a qualified purchaser
who would extend such restrictions, on or before November 1, 1993;
and of which, up to $100,000,000 may be used for rental assistance
to prevent displacement of families residing in projects whose
owners prepay their mortgages; and the balance of which shall be
available from the effective date of this Act [Sept. 26, 1996] for
sales to preferred priority purchasers: Provided further, That with
the exception of projects described in clauses (1), (2), or (3) of
the preceding proviso, the Secretary shall, notwithstanding any
other provision of law, suspend further processing of preservation
applications which have not heretofore received approval of a plan
of action: Provided further, That $150,000,000 of amounts
recaptured from interest reduction payment contracts for section
236 [12 U.S.C. 1715z-1] projects whose owners prepay their
mortgages during fiscal year 1997 shall be rescinded: Provided
further, That an owner of eligible low-income housing may prepay
the mortgage or request voluntary termination of a mortgage
insurance contract, so long as said owner agrees not to raise rents
for sixty days after such prepayment: Provided further, That such
developments have been determined to have preservation equity at
least equal to the lesser of $5,000 per unit or $500,000 per
project or the equivalent of eight times the most recently
published monthly fair market rent for the area in which the
project is located as the appropriate unit size for all of the
units in the eligible project: Provided further, That the Secretary
may modify the regulatory agreement to permit owners and priority
purchasers to retain rental income in excess of the basic rental
charge in projects assisted under section 236 of the National
Housing Act, for the purpose of preserving the low- and moderate-
income character of the housing: Provided further, That eligible
low-income housing shall include properties meeting the
requirements of this paragraph with mortgages that are held by a
State agency as a result of a sale by the Secretary without
insurance, which immediately before the sale would have been
eligible low-income housing under LIHPRHA: Provided further, That
notwithstanding any other provision of law, subject to the
availability of appropriated funds, each low-income family, and
moderate-income family who is elderly or disabled or is residing in
a low-vacancy area, residing in the housing on the date of
prepayment or voluntary termination, and whose rent, as a result of
a rent increase occurring no later than one year after the date of
the prepayment, exceeds 30 percent of adjusted income, shall be
offered tenant-based assistance in accordance with section 8 [42
U.S.C. 1437f] or any successor program, under which the family
shall pay no less for rent than it paid on such date: Provided
further, That any family receiving tenant-based assistance under
the preceding proviso may elect (1) to remain in the unit of the
housing and if the rent exceeds the fair market rent or payment
standard, as applicable, the rent shall be deemed to be the
applicable standard, so long as the administering public housing
agency finds that the rent is reasonable in comparison with rents
charged for comparable unassisted housing units in the market or
(2) to move from the housing and the rent will be subject to the
fair market rent of the payment standard, as applicable, under
existing program rules and procedures: Provided further, That the
tenant-based assistance made available under the preceding two
provisos are in lieu of benefits provided in subsections [sic]
223(b), (c), and (d) of the Low-Income Housing Preservation and
Resident Homeownership Act of 1990 [12 U.S.C. 4113(b), (c), (d)]:
Provided further, That any sales shall be funded using the capital
grant available under section 220(d)(3)(A) of LIHPRHA [12 U.S.C.
4110(d)(3)(A)]: Provided further, That any extensions shall be
funded using a non-interest-bearing capital (direct) loan by the
Secretary not in excess of the amount of the cost of rehabilitation
approved in the plan of action plus 65 percent of the property's
preservation equity and under such other terms and conditions as
the Secretary may prescribe: Provided further, That any capital
grant shall be limited to seven times, and any capital loan limited
to six times, the annual fair market rent for the project, as
determined using the fair market rent for fiscal year 1997 for the
area in which the project is located, using the appropriate
apartment sizes and mix in the eligible project, except where, upon
the request of a priority purchaser, the Secretary determines that
a greater amount is necessary and appropriate to preserve low-
income housing: Provided further, That section 241(f) of the
National Housing Act [12 U.S.C. 1715z-6(f)] is repealed and
insurance under such section shall not be offered as an incentive
under LIHPRHA and ELIHPA: Provided further, That up to $10,000,000
of the amount of $350,000,000 made available by a preceding proviso
in this paragraph may be used at the discretion of the Secretary to
reimburse owners of eligible properties for which plans of action
were submitted prior to the effective date of this Act [Sept. 26,
1996], but were not executed for lack of available funds, with such
reimbursement available only for documented costs directly
applicable to the preparation of the plan of action as determined
by the Secretary, and shall be made available on terms and
conditions to be established by the Secretary: Provided further,
That, notwithstanding any other provision of law, a priority
purchaser may utilize assistance under the HOME Investment
Partnerships Act [42 U.S.C. 12721 et seq.] or the Low Income
Housing Tax Credit [see 26 U.S.C. 42]: Provided further, That
projects with approved plans of action which exceed the limitations
on eligibility for funding imposed by this Act may submit revised
plans of action which conform to these limitations by March 1,
1997, and retain the priority for funding otherwise applicable from
the original date of approval of their plan of action, subject to
securing any additional necessary funding commitments by August 1,
1997."
Pub. L. 104-134, title I, Sec. 101(e) [title II], Apr. 26, 1996,
110 Stat. 1321-257, 1321-267; renumbered title I, Pub. L. 104-140,
Sec. 1(a), May 2, 1996, 110 Stat. 1327, provided in part that: "Of
the total amount provided under this head, $624,000,000, plus
amounts recaptured from interest reduction payment contracts for
section 236 [12 U.S.C. 1715z-1] projects whose owners prepay their
mortgages during fiscal year 1996 (which amounts shall be
transferred and merged with this account), shall be for use in
conjunction with properties that are eligible for assistance under
the Low Income Housing Preservation and Resident Homeownership Act
of 1990 (LIHPRHA) [see Short Title note above] or the Emergency Low-
Income Housing Preservation Act of 1987 (ELIHPA) [see Codification
note set out preceding this section]: Provided, That prior to
August 15, 1996, funding to carry out plans of action shall be
limited to sales of projects to non-profit organizations, tenant-
sponsored organizations, and other priority purchasers: Provided
further, That of the amount made available by this paragraph, up to
$10,000,000 shall be available for preservation technical
assistance grants pursuant to section 253 of the Housing and
Community Development Act of 1987 [12 U.S.C. 4143], as amended:
Provided further, That with respect to amounts made available by
this paragraph, after August 15, 1996, if the Secretary determines
that the demand for funding may exceed amounts available for such
funding, the Secretary (1) may determine priorities for
distributing available funds, including giving priority funding to
tenants displaced due to mortgage prepayment and to projects that
have not yet been funded but which have approved plans of action;
and (2) may impose a temporary moratorium on applications by
potential recipients of such funding: Provided further, That an
owner of eligible low-income housing may prepay the mortgage or
request voluntary termination of a mortgage insurance contract, so
long as said owner agrees not to raise rents for sixty days after
such prepayment: Provided further, That an owner of eligible low-
income housing who has not timely filed a second notice under
section 216(d) [12 U.S.C. 4106(d)] prior to the effective date of
this Act [Apr. 26, 1996] may file such notice by April 15, 1996:
Provided further, That such developments have been determined to
have preservation equity at least equal to the lesser of $5,000 per
unit or $500,000 per project or the equivalent of eight times the
most recently published fair market rent for the area in which the
project is located as the appropriate unit size for all of the
units in the eligible project: Provided further, That the Secretary
may modify the regulatory agreement to permit owners and priority
purchasers to retain rental income in excess of the basic rental
charge in projects assisted under section 236 of the National
Housing Act [12 U.S.C. 1715z-1], for the purpose of preserving the
low and moderate income character of the housing: Provided further,
That the Secretary may give priority to funding and processing the
following projects provided that the funding is obligated not later
than September 15, 1996: (1) projects with approved plans of action
to retain the housing that file a modified plan of action no later
than August 15, 1996 to transfer the housing; (2) projects with
approved plans of action that are subject to a repayment or
settlement agreement that was executed between the owner and the
Secretary prior to September 1, 1995; (3) projects for which
submissions were delayed as a result of their location in areas
that were designated as a Federal disaster area in a Presidential
Disaster Declaration; and (4) projects whose processing was, in
fact, or in practical effect, suspended, deferred, or interrupted
for a period of nine months or more because of differing
interpretations, by the Secretary and an owner concerning the time
of the ability of an uninsured section 236 [12 U.S.C. 1715z-1]
property to prepay or by the Secretary and a State or local rent
regulatory agency, concerning the effect of a presumptively
applicable State or local rent control law or regulation on the
determination of preservation value under section 213 of LIHPRHA,
as amended [12 U.S.C. 4103], if the owner of such project filed
notice of intent to extend the low-income affordability
restrictions of the housing, or transfer to a qualified purchaser
who would extend such restrictions, on or before November 1, 1993:
Provided further, That eligible low-income housing shall include
properties meeting the requirements of this paragraph with
mortgages that are held by a State agency as a result of a sale by
the Secretary without insurance, which immediately before the sale
would have been eligible low-income housing under LIHPRHA: Provided
further, That notwithstanding any other provision of law, subject
to the availability of appropriated funds, each unassisted low-
income family residing in the housing on the date of prepayment or
voluntary termination, and whose rent, as a result of a rent
increase occurring no later than one year after the date of the
prepayment, exceeds 30 percent of adjusted income, shall be offered
tenant-based assistance in accordance with section 8 [42 U.S.C.
1437f] or any successor program, under which the family shall pay
no less for rent than it paid on such date: Provided further, That
any family receiving tenant-based assistance under the preceding
proviso may elect (1) to remain in the unit of the housing and if
the rent exceeds the fair market rent or payment standard, as
applicable, the rent shall be deemed to be the applicable standard,
so long as the administering public housing agency finds that the
rent is reasonable in comparison with rents charged for comparable
unassisted housing units in the market or (2) to move from the
housing and the rent will be subject to the fair market rent of the
payment standard, as applicable, under existing program rules and
procedures: Provided further, That rents and rent increases for
tenants of projects for which plans of action are funded under
section 220(d)(3)(B) of LIHPRHA [12 U.S.C. 4110(d)(3)(B)] shall be
governed in accordance with the requirements of the program under
which the first mortgage is insured or made (sections 236 or
221(d)(3) BMIR [12 U.S.C. 1715z-1, 4111(d)(3)], as appropriate):
Provided further, That the immediately foregoing proviso shall
apply hereafter to projects for which plans of action are to be
funded under such section 220(d)(3)(B) [12 U.S.C. 4110(d)(3)(B)],
and shall apply to any project that has been funded under such
section starting one year after the date that such project was
funded: Provided further, That up to $10,000,000 of the amount made
available by this paragraph may be used at the discretion of the
Secretary to reimburse owners of eligible properties for which
plans of action were submitted prior to the effective date of this
Act [Apr. 26, 1996], but were not executed for lack of available
funds, with such reimbursement available only for documented costs
directly applicable to the preparation of the plan of action as
determined by the Secretary, and shall be made available on terms
and conditions to be established by the Secretary: Provided
further, That, notwithstanding any other provision of law,
effective October 1, 1996, the Secretary shall suspend further
processing of preservation applications which do not have approved
plans of action."
For similar provisions see Pub. L. 104-120, Sec. 2(b), Mar. 28,
1996, 110 Stat. 834.
CONDITIONS OF ASSISTANCE
Pub. L. 102-550, title III, Sec. 314, Oct. 28, 1992, 106 Stat.
3770, provided that:
"(a) Elihpa of 1987. - The Secretary may not require, as a
condition of eligibility for or receipt of technical assistance
made available under the Departments of Veterans Affairs and
Housing and Urban Development, and Independent Agencies
Appropriations Act, 1992 (Public Law 102-139 [105 Stat. 736, see
Tables for classification]) (including any phase of a grant), that
an applicant participate in a training program sponsored or
conducted by the Department of Housing and Urban Development for
acquisition of eligible low income housing under the provisions of
the Emergency Low Income Housing Preservation Act of 1987 [see
Codification note above], and may not provide any preference or
priority for such assistance for any applicant based on
participation in such a program.
"(b) Lihprha of 1990. - The Secretary may require, as a condition
of eligibility for or receipt of technical assistance made
available under the Departments of Veterans Affairs and Housing and
Urban Development, and Independent Agencies Appropriations Act,
1992 (Public Law 102-139) (including any phase of a grant), that an
applicant participate in a training program sponsored or conducted
by the Department of Housing and Urban Development for acquisition
of eligible low-income housing under this title [enacting sections
4141 to 4147 of this title, amending sections 1715z-1, 1715z-6,
4103, 4105 to 4112, 4116, 4119, 4121, 4122, 4124, and 4125 of this
title, enacting provisions set out as notes under this section and
sections 1715z-6, 4109, and 4117 of this title, and amending
provisions set out as a note under this section], and may provide
preference or priority for such assistance for applicants based on
participation in such a program, but only if the program is made
available on a nationwide basis not later than March 1, 1993."
TRANSITION PROVISIONS
Section 604 of Pub. L. 101-625, as amended by Pub. L. 102-550,
title III, Sec. 313, Oct. 28, 1992, 106 Stat. 3769, provided that:
"(a) Housing Eligible for Election. - Any owner of housing that
becomes eligible low-income housing before January 1, 1991 and who,
before such date, filed a notice of intent under section 222 of the
Emergency Low Income Housing Preservation Act of 1987 [formerly set
out in a note under section 1715l of this title] (as such section
existed before the date of the enactment of this Act [Nov. 28,
1990]) or under section 212 of such Act [12 U.S.C. 4102] (as
amended by section 601(a)) may elect to be subject to (1) the
provisions of such Act as in effect before the date of the
enactment of this Act, or (2) the provisions of the Low-Income
Housing Preservation and Resident Homeownership Act of 1990 [see
Short Title note above], after the date of the enactment of this
Act. The Secretary shall establish procedures for owners to make
the election under the preceding sentence. An owner that elects to
be subject to the provisions of the Emergency Low Income Housing
Preservation Act of 1987 shall comply with section 212(b), section
217(a)(2), and section 217(c) of the Low-Income Housing
Preservation and Resident Homeownership Act of 1990 [12 U.S.C.
4102(b) and 4107(a)(2), (c)].
"(b) Right of Conversion to New System. - Any owner who has filed
a plan of action on or before October 11, 1990, shall have the
right to convert to the system of incentives and restrictions under
this subtitle [subtitle A of title VI of Pub. L. 101-625, see
Effective Date note above], with such adjustments as the Secretary
determines to be appropriate to compensate for the value of any
incentives the owner received under the Emergency Low Income
Housing Preservation Act of 1987 [see Codification note preceding
this section]. Owners filing plans after such date shall not have
any right under this subsection.
"(c) Effectiveness of Repealed Provisions. - Notwithstanding the
amendment made by section 601(a) [enacting this chapter], the
provisions of the Emergency Low Income Housing Preservation Act of
1987 (as in effect immediately before the date of the enactment of
this Act [Nov. 28, 1990]) shall apply with respect to any housing
for which the election under subsection (a)(1) is made. With
respect to housing for which such an election is made -
"(1) in making incentives under section 224 of such Act
[formerly set out in a note under section 1715l of this title]
available to such housing, the Secretary -
"(A) shall, for approvable plans of action, provide
assistance sufficient to enable a nonprofit organization that
has purchased or will purchase an eligible low income housing
project to meet project oversight costs; and
"(B) may not refuse to offer incentives referred to in such
section to any owner who filed a notice of intent under section
222 of such Act before October 15, 1991, based solely on the
date of filing of the plan of action for the housing; and
"(2) the provisions of section 233(1)(A)(i) of such Act
[formerly set out in a note under section 1715l of this title]
shall not apply, and the term 'eligible low income housing'
shall, for purposes of such Act, shall [sic] include housing
financed by a loan or mortgage that is insured or held by the
Secretary or a State or State agency under section 221(d)(3) of
the National Housing Act [12 U.S.C. 1715l(d)(3)] and receiving
loan management assistance under section 8 of the United States
Housing Act of 1937 [42 U.S.C. 1437f] due to a conversion from
section 101 of the Housing and Urban Development Act of 1965 [12
U.S.C. 1701s].
"(d) Regulations. - Not later than the expiration of the 90-day
period beginning on the date of the enactment of this Act [Nov. 28,
1990], the Secretary of Housing and Urban Development shall,
subject to the provisions of section 553 of title 5, United States
Code, publish proposed rules to implement this subtitle and the
amendments made by this subtitle. Not later than 45 days after the
expiration of the period under the preceding sentence the Secretary
shall issue interim or final rules to implement such provisions."