| (a) The purpose of this section is to outline the policies
and/or procedures of the Department (also called tenant section criteria)
that are required to have written documentation. If an Owner fails
to have such Written Policies and Procedures, or fails to follow their
Written Policies and Procedures it will be handled as an Event of
Noncompliance as further provided in §10.803 of this subchapter
(relating to Compliance and Events of Noncompliance).
(1) Owners must inform applicants/tenants in writing,
at the time of application, or at the time of other actions described
in this section, that such policies/procedures as described in this
section are available, and that the Owner will provide copies upon
request to applicants/tenants or their representatives.
(2) The Owner must have all policies and related documentation
required by this section and the TDHCA form based on HUD form 5380 "Notice
of Occupancy Rights under the Violence Against Women Act" and
the HUD form 5382 "Certification of Domestic Violence, Dating
Violence, Sexual Assault, or Stalking and Alternate Documentation"
available in the leasing office and anywhere else where applications
are taken; Developments that accept electronic applications must maintain
on their website these Written Policies and Procedures and the same
noted forms.
(3) All policies must have an effective date. Any changes
made to the policies require a new effective date, and a notice regarding
the availability of new policies must be communicated to tenants in
writing. Acceptable forms of notification in writing are:
(A) Written notice to each household through an active
communications portal or online rental payment portal, if either are
used at the Development;
(B) written notice via hard copy placed on the door
to each occupied Unit;
(C) a notice online on the Development's website, if
the Development has one; or
(D) a hard copy notice posted in the leasing office's
public area for at least 30 calendar days.
(4) In general, policies addressing credit, criminal
history, and occupancy standards cannot be applied retroactively.
Tenants who already reside in the Development or applicants on the
waitlist at the time new or revised tenant selection criteria are
applied, and who are otherwise in good standing under the lease or
waitlist, must not receive notices of termination or non-renewal based
solely on their failure to meet the new or revised tenant selection
criteria or be passed over on the waitlist. However, criteria related
to program eligibility may be applied retroactively when a market
rate development receives a new award of tax credits, federal, or
state funds and a household is not eligible under the new program
requirements, or when prior criteria violate federal or state law.
(b) Tenant Selection Criteria. A Development Owner
must maintain current and prior versions of the written Tenant Selection
Criteria, for the longer of the records retention period that applies
to the program, or for as long as tenants who were screened under
the historical criteria are occupying the Development.
(1) The criteria identified by a Development must be
reasonably related to an applicant's ability to perform under the
lease (for a Development with MFDL funding this means to pay the rent,
not to damage the housing, and not to interfere with the rights and
quiet enjoyment of other tenants) and include at a minimum:
(A) Requirements that determine an applicant's basic
eligibility for the Development, including any preferences, restrictions
(such as the Occupancy Standard Policy), the Waitlist Policy, Changes
in Housing Designation Policy, low income unit designations utilized,
and any other tenancy requirements. Any restrictions on student occupancy
and any exceptions to those restrictions, as documented in the tenant
file as provided for in 10 TAC §10.612(b)(2) of this chapter
(relating to Tenant File Requirements) must be stated in the policies;
(B) Applicant screening criteria, including what applicant
attributes are screened and what scores or findings would result in
ineligibility;
(C) The following statement: Screening criteria will
be applied in a manner consistent with all applicable laws, including
the Texas and Federal Fair Housing Acts, the Federal Fair Credit Reporting
Act, program guidelines, and TDHCA's rules;
(D) Specific age requirements if the Development is
operating as an Elderly Property either under the Housing for Older
Persons Act of 1995 as amended (HOPA), or the age related eligibly
criteria required by its use of federal funds.
(2) The criteria must not:
(A) Include preferences for admission, unless it is
in a recorded LURA which has been approved by the Department (preferences
are required to be in a LURA when a Development has federal or state
funding, except for the preference allowed by paragraph (3) of this
subsection), is required by a program in which the Owner is participating
which requires the preference, or is allowed by paragraph (3) of this
subsection. Owners that include preferences in their leasing criteria
due to other federal financing must provide to the Department either
written approval from HUD, USDA, or VA for such preference, or identify
the statute, written agreement, or federal guidance documentation
that permits the adoption of this preference;
(B) Exclude an individual or family from admission
to the Development solely because the household participates in the
HOME Tenant Based Rental Assistance Program, the housing choice voucher
program under Section 8, United States Housing Act of 1937 (42 U.S.C. §1-437),
or other federal, state, or local government rental assistance program.
If an Owner adopts a minimum income standard for households participating
in a voucher program, it is limited to the greater of a monthly income
of 2.5 times the household's share of the total monthly rent amount
or $2,500 annually; or
(C) In accordance with VAWA, deny admission on the
basis that the applicant has been a victim of domestic violence, dating
violence, sexual assault, or stalking.
(3) If the Development is funded with HOME, HOME ARP,
TCAP RF, NHTF, or NSP funds, in accordance with 24 CFR §93.356
and 24 CFR §92.359, the criteria may have a preference for persons
who have experienced domestic violence, dating violence, sexual assault,
or stalking.
(4) Occupancy Standard Policy.
(A) If the Development restricts the number of occupants
in a Unit in a more restrictive manner than found in Section 92.010
of the Texas Property Code, the Occupancy Standard Policy must allow
at least two persons per Bedroom plus one additional person per Unit.
An Efficiency Unit that is greater than 600 square feet, must also
have an Occupancy Standard Policy of at least three persons per Unit.
In an SRO or in an Efficiency that is less than 600 square feet, the
Occupancy Standard Policy must allow at least two persons per Unit.
Supportive housing or transitional housing Developments where all
Units in the Development are SROs or Efficiencies, are not required
by the Department to have an Occupancy Standard Policy, except as
required for the 811 PRA Program or as reflected in the Development's
LURA.
(B) A Development may adopt a more restrictive standard
than described in subparagraph (A) of this paragraph, if the Development
is required to utilize a more restrictive standard by a local governmental
entity, or a federal funding source. However, the Development must
have this information available onsite for Department review.
(C) Except for an Elderly Development that meets the
requirements of the Housing for Older Persons Act exception under
the Fair Housing Act, the Occupancy Standard Policy must state that
children that join the household after the start of a lease term will
not cause a household to be in violation of the lease.
(c) Reasonable Accommodations Policy. Owners must maintain
a written Reasonable Accommodations policy. The policy must be maintained
at the Development. Owners are responsible for ensuring that their
employees and contracted third party management companies are aware
of and comply with the reasonable accommodation policy.
(1) The policy must provide:
(A) Information on how an applicant or current resident
with a disability may request a reasonable accommodation;
(B) How transfers related to a reasonable accommodation
will be addressed; and
(C) A timeframe in which the Owner will respond to
a request that is compliant with §1.204(b)(3) and (d) of this
title (relating to Reasonable Accommodations).
(2) The policy must not:
(A) Require a household to make a reasonable accommodation
request in writing;
(B) Require a household whose need is readily apparent
to provide third party documentation of a disability;
(C) Require a household to provide specific medical
or disability information other than the disability verification that
may be requested to verify eligibility for reasonable accommodation;
Cont'd... |
