encourage owner participation, and in particular,to facilitate sales to nonprofit purchasers.These new policies identify <strong>the</strong> allowable feesand transaction costs that HUD will underwriteas part of <strong>the</strong> restructuring package, outline <strong>the</strong>conditions under which HUD will forgive <strong>the</strong>deferred second mortgage (for qualified nonprofitpurchasers), and give qualified nonprofitsa three-year window after debt restructuring topurchase <strong>the</strong> property and secure second mortgageforgiveness.Recent legislation extends OMHAR untilOctober 1, 2004, extends <strong>the</strong> Mark-to-Marketprogram with certain amendments until October1, 2006, and brings OMHAR under <strong>the</strong> authorityof <strong>the</strong> FHA Commissioner.Below-Market Section 8 Properties:Mark-Up-to-MarketWhile <strong>the</strong> MAHRA statute focuses primarily onabove-market Section 8 properties, it also permitsHUD to renew project-based Section 8 contractsin below-market properties—but only at<strong>the</strong> owner's option. And to facilitate budgetarymanagement, all expiring Section 8 contractswere initially subject to annual renewals (aswell as annual appropriations), giving ownersfrequent opportunity to reconsider <strong>the</strong>ir participation.As rents escalated throughout <strong>the</strong> late 1990s,many owners of below-market Section 8 housingbegan opting out of <strong>the</strong>ir contracts.Between October 1996 and April 1999, <strong>the</strong>nation lost almost 40,000 Section 8 units asowners left <strong>the</strong> program. 7 This process culminatedin a series of well-publicized opt-outs inrural Iowa, where elderly Section 8 tenants in<strong>the</strong> district of an influential congressman weredisplaced from <strong>the</strong> only affordable housing in<strong>the</strong>ir communities.able housing in <strong>the</strong> country, located in goodneighborhoods with good schools and economicopportunities, was being lost due to federalhousing policy. This report laid <strong>the</strong> groundworkfor a new Mark-Up-to-Market program, whichbegan as an emergency initiative but was enactedinto law in October 1999.Under this program, owners of eligible propertiesare permitted to renew <strong>the</strong>ir expiring project-basedSection 8 contracts at <strong>the</strong> prevailingmarket comparable rents for a minimum of fiveyears (although payments are still subject toannual appropriations). For properties wi<strong>the</strong>xpiring use restrictions, mortgage prepaymentis prohibited during <strong>the</strong> mark-up term.Recent policy changes have relaxed <strong>the</strong> eligibilityrequirements for Mark-Up-to-Market , extended<strong>the</strong> contract renewal term to any lengthagreed to by <strong>the</strong> owner and HUD, and modifiedor eliminated <strong>the</strong> original limited dividendrestrictions for participating owners. Many ownersappear to be choosing this incentive as analternative to opting out of <strong>the</strong>ir contracts.Additionally, a variation of Mark-Up-to-Market—called Mark-Up-to-Budget—has been extendedto nonprofit owners who can justify marketcomparable rents based on <strong>the</strong> project’s budget.Mark-Up-to-Budget can ei<strong>the</strong>r facilitate apurchase transaction or finance neededrepairs. 8Section 8 Contract Renewal OptionsHUD now offers a variety of renewal options forowners with expiring Section 8 contracts,including <strong>the</strong> following:1. Mark-Up-to-Market/Budget.2. Regular Renewal for below-marketproperties, with rents adjusted by anOperating Cost Adjustment Factor(OCAF) or on a budget basis.3. Mark-to-Market, for above-marketinsured properties.4. For certain "Exception Projects," <strong>the</strong>lesser of existing OCAF-adjusted rentsor budget-based rents, with no marketcap.6After renewed protests from housing advocates,HUD acknowledged that its own policies werecontributing to tenant displacement and creatingrecord levels of worst case housing needs.In a landmark 1999 report entitled "Opting In:Renewing America's Commitment to AffordableHousing," HUD conceded that <strong>the</strong> best affordchapterone: Subsidized Housing Preservation: An Historical Perspective
In addition, <strong>the</strong>re are special rules for projectsthat participated in <strong>the</strong> federal preservationprograms or <strong>the</strong> Portfolio ReengineeringDemonstration Program, a predecessor of Markto-Market.Special rules also apply to propertieswith Section 8 Moderate Rehabilitation contracts:renewal rents are <strong>the</strong> lesser of existingrents adjusted by OCAF, <strong>the</strong> Section 8 FairMarket Rent or <strong>the</strong> market comparable rent.Enhanced VouchersWhere owners choose not to renew a Section 8contract, but to "opt out" instead, MAHRA providesthat eligible tenants will receive EnhancedVouchers at <strong>the</strong> prevailing market rent. Vouchereligibility in opt-outs is limited to low-incometenants with incomes at or below 80 percent ofarea median; o<strong>the</strong>rwise, <strong>the</strong> same basic rulesapply as in <strong>the</strong> prepayment program. EnhancedVouchers are now available to eligible tenantsin any property where an opt-out occurred afterFY1994.Tenant NoticeOwners must give tenants notice at least oneyear prior to <strong>the</strong> opt-out date. If proper notice isnot given, <strong>the</strong> owner may not evict <strong>the</strong> tenant orincrease <strong>the</strong> tenant's rent share until <strong>the</strong> oneyearnotice requirement is met. (HUD will generallyprovide an interim contract extension tocover <strong>the</strong> notice period.)Pending Legislation: Federal Matching GrantsIn recent years, preservation advocates havefocused <strong>the</strong>ir legislative efforts on a campaignto secure federal matching grants for state andlocal preservation programs. While not yet successful,<strong>the</strong>se efforts are gaining momentumeach year. In 1999, a preservation matchinggrant bill passed both <strong>the</strong> House and Senatewith 50 co-sponsors. In 2001, <strong>the</strong> bill was reintroducedas (HR 425 and S 2733) along witho<strong>the</strong>r bills proposing a broader affordable housingtrust fund with potential preservation aswell as production uses. Advocates anticipate arenewed effort to secure passage of <strong>the</strong>se initiativesin 2002. 9 chapter one: Subsidized Housing Preservation: An Historical Perspective 7