COVID-19 Interim Rental Compliance Policy
NOTICE TO PARTNERS
City of Boulder’s Interim Rental Compliance Policy in Response to COVID-19
On March 27, 2020, the president signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. The law includes important, immediate protections for tenants. The federal eviction moratorium for tenants living in certain types of housing is summarized below. In addition to the types of housing summarized below, the City expects all owners of permanently affordable rental housing units under Covenant with the City to follow the same guidance from HUD on evictions (nonpayment, late fees, etc.).
I. What does the federal eviction moratorium do?
The eviction moratorium operates by restricting lessors of covered properties (discussed in more detail below) from filing new eviction actions for non-payment of rent, and also prohibits “charging fees, penalties, or other charges to the tenant related to such nonpayment of rent.” Sec. 4024(b). The federal moratorium also provides that a lessor (of a covered property) may not evict a tenant after the moratorium expires except on 30 days’ notice—which may not be given until after the moratorium period. See Sec. 4024(c).
The eviction moratorium found in Section 4024(b) of the CARES Act only applies to evictions related to nonpayment of rent or nonpayment of other charges to the tenant related to nonpayment of rent. The moratorium also prohibits the charging of other fees, penalties, or other charges due to the nonpayment of rent. Therefore, the owner can still undertake an eviction/termination of assistance action against a tenant for drug abuse and/or other criminal activity, as those are unrelated to nonpayment of rent. The same is true for other lease violations, although HUD encourages owners to consider delaying the initiation or completion of evictions for non-drug or non-crime related reasons until after state or local emergencies are over.
The federal eviction moratorium does not affect cases:
- that were filed before the moratorium took effect or that are filed after it sunsets
- that involve non-covered tenancies (see below), or
- where the eviction is based on another reason besides nonpayment of rent or nonpayment of other fees or charges.
II. What types of housing are covered by the federal eviction moratorium?
The eviction moratorium applies to “covered dwellings,” which includes those dwellings on or in “covered properties.” Sec. 4024(a). The Act defines a “covered property” as a property that: (1) participates in a “covered housing program” as defined by the Violence Against Women Act (VAWA) (as amended through the 2013 reauthorization); (2) participates in the “rural housing voucher program under section 542 of the Housing Act of 1949”; (3) has a federally backed mortgage loan; or (4) has a federally backed multifamily mortgage loan. See Sec. 4024(a)(2).
More discussion about each of these categories follows.
- VAWA Covered Housing Programs
The eviction moratorium extends to federal housing rental programs covered by VAWA (34 U.S.C. § 12491(a)). The moratorium itself does not impact VAWA housing protections, but referencing the VAWA statute was presumably a quick way to extend coverage to most federally assisted rental housing programs. VAWA-covered housing programs include the following:
Department of Housing and Urban Development (HUD)2
- Public housing (42 U.S.C. § 1437d)
- Section 8 Housing Choice Voucher program (42 U.S.C. § 1437f)
- Section 8 project-based housing (42 U.S.C. § 1437f)
- Section 202 housing for the elderly (12 U.S.C. § 1701q)3
- Section 811 housing for people with disabilities (42 U.S.C. § 8013)
- Section 236 multifamily rental housing (12 U.S.C. § 1715z–1)
- Section 221(d)(3) Below Market Interest Rate (BMIR) housing (12 U.S.C. § 17151(d))
- HOME (42 U.S.C. § 12741 et seq.)
- Housing Opportunities for Persons with AIDS (HOPWA) (42 U.S.C. § 12901, et seq.)
- McKinney-Vento Act homelessness programs (42 U.S.C. § 11360, et seq.)
Department of Treasury
- Low-Income Housing Tax Credit (LIHTC) (26 U.S.C. § 42)
For programs that fund units (rather than tenant-based subsidies), advocates can use resources such as the National Housing Preservation Database to determine what type of housing a client is living in.
B. Rural Housing Voucher Program
The evictions moratorium also extends to “the rural housing voucher program under section 542 of the Housing Act of 1949 (42 U.S.C. 1490r).” Sec. 4024(a)(2)(A)(ii). The separate inclusion of this program was necessary because the Rural Housing Voucher Program was omitted from the covered housing programs in the 2013 VAWA reauthorization statute.
C. Properties with federally backed mortgage loans (1-4 units)
Federally backed mortgage loans are defined to include loans secured by any lien on residential properties having 1-4 units and that are “made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” Sec. 4024(a)(4). Note that there is a differently worded definition of the term "federally backed mortgage loan" in Sec. 4022(a)(2) of the Act where the term is defined in terms of a finite list of federal agencies and loan programs5 in contrast to the more sweeping language here. It is not entirely clear if these two definitions of the same term are intended to cover the same set of loans, but the definition of "federally backed mortgage loan" in the eviction moratorium provisions is arguably much broader, so advocates should assert that a tenant is protected by the moratorium even if the landlord's mortgage is not known to be a HUD, VA, USDA or Fannie Mae or Freddie Mac loan.
III. How long is the federal eviction moratorium in effect?
The federal eviction moratorium took effect on March 27, 2020 and extends for 120 days. If owners need more information visit the nhlp summary and analysis
If owners have residents experiencing difficulties paying rent, we encourage you to work with them and direct them to the resources outlined in the following link. https://www.bouldercounty.org/families/disease/covid-19/covid-19-resources/#housing
If owners (as an organization) are experiencing hardships, please contact us so we can assist with finding solutions.
The City of Boulder received a memorandum on April 14, 2020 from HUD regarding the availability of Waivers and Suspensions of HOME Program Requirements in Response to COVID-19 Pandemic. The memorandum provides guidance and necessary statutory suspensions and regulatory waivers to enable HOME participating jurisdictions (PJs) affected by COVID-19 pandemic.
Per the waivers and suspension issued by HUD, the City of Boulder, Department of Housing & Human Services is implementing the following interim policies for income verification, annual inspections and on-site monitoring. While the waivers issued by HUD were specifically designed for HOME-assisted properties, the City has determined that these waivers shall apply to all permanently affordable rental housing under Covenant with the City.
The waiver issued by HUD permits the City of Boulder (as a designated PJ) to allow Owners/Managers of HOME-assisted properties to use self-certification of income in lieu of source documentation to determine eligibility for HOME assistance to persons requiring emergency assistance related to COVID-19. The waiver applies to individuals/households that have lost employment or income due to COVID-19 who are applying for admission to a HOME rental unit or TBRA program. This waiver also applies to homeless individuals/households who are applying for a HOME unit or TBRA program.
Owners/Managers must ensure that self-certification takes into consideration all income, including unemployment and emergency benefits that the applicant will receive. Emergency tax relief (stimulus payments) are not to be included as an emergency benefit. On-site rent and income reviews must be completed within 90-days after the waiver period. This waiver remains in effect through 12/31/2020.
On-Site Monitoring & HQS Inspections
The federal regulation that requires the City of Boulder to perform on-site monitoring and annual inspections to determine compliance within the period of affordability is waived. The waiver extends the timeframe for the City to perform ongoing monitoring/inspections through 12/31/2020. Within 120 days of the end of the waiver, the City must conduct on-site monitoring and physically inspect units that would have been subject to ongoing monitoring during the waiver period.
CHFA Interim Policies Applicable through April 30, 2020 unless otherwise noted
In support of our partners and in consultation with HUD, the City of Boulder has determined to adopt the following interim policies developed by CHFA regarding resident certifications completed or due during this time period:
Move-in certifications and annual recertifications may be completed electronically with the following requirements:
- Content may be entered electronically by residents on certification forms.
- Signatures by residents and management on certification forms, including the Tenant Income Certification (TIC), may be completed electronically as long as each signature is authenticated, and date and time stamped by software.
- Typed and unauthenticated signatures are not permitted.
If property management is unable to complete recertification timely due to COVID-19 related issues, either in person or using an electronic format, the file must include a clarification record explaining the delay
The City of Boulder continues to monitor the COVID-19 situation and developments in Colorado. In response to concerns related to COVID-19, The Department of Housing & Human Services is implementing the following interim policies for inspections and monitoring. These policy changes seek to help minimize the spread of COVID-19 and protect the health of tenants, partners, and City of Boulder staff. These policies and courses of action were developed by CHFA based on current guidance provided by the IRS and HUD and are subject to change as the situation continues to develop and as warranted.
- All on-site compliance monitoring and visits will be suspended until May 1, 2020.
- As an alternative, desk monitoring will be implemented, and partners may need to submit documentation electronically. We will notify you before implementing desk monitoring.
- Technical assistance will be offered to partners remotely.
All normal reporting requirements will remain in place but for approved exceptions. This request must be sent directly to the Compliance & Project Manager.
Certifications and Verifications
The City of Boulder has adopted CHFA’s interim policy and guidance regarding certifications and verifications. If the property management staff are unable to conduct the certification process in person, or electronic format is not available, the certification may be conducted with the resident over the phone using the following steps:
- Call the resident(s) to complete the certification interview.
- Complete the questionnaire and other documents with the information collected during the call. Do not sign on behalf of residents.
- Use a clarification record to document:
- The date, time, and contact info for phone call with the resident(s).
- The reason the certification was conducted by phone and why the residents’ signature was not obtained.
- Confirmation that management will have the resident sign all documents, true and correct, when it becomes feasible to do so.
If property management staff are unable to collect third-party employment verification via email, fax, or mail, either of the following alternatives may be used.
- Verbal third-party verification: Obtain all of the same information on the VOE form and document the name of the person providing the information, including the person’s title and phone number, along with the date of the conversation.
- Resident-provided paystubs: Ask the resident to put paystubs in the rent drop box or take a picture of the paystub with their phone and send to management.
If you have any additional questions, please contact City of Boulder compliance staff.
Notice of Nondiscrimination
The City of Boulder, Division of Housing does not discriminate on the basis of race, color, religion, gender, age, national origin, disability, marital status, familial status, sexual orientation or military status in any of its programs, services or activities.
The Department of Housing and Human Services, upon request, will provide appropriate aids and services leading to effective communication for qualified persons with disabilities so they can participate equally in programs, services and activities. Anyone who requires an auxiliary aid, communication service, or a reasonable accommodation to participate in a program, service, or activity of the Department, should call the ADA/Section 504 Coordinator at 303-441-3231. For hearing or speech impaired residents, please dial 7-1-1 for Relay Colorado.
For more information on legal notices and resources, visit: bouldercolorado.gov/housing/legal-notices