[Code of Federal Regulations]

[Title 24, Volume 4]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR884.223a]



[Page 128-130]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

  CHAPTER VIII--OFFICE OF THE ASSISTANT SECRETARY FOR HOUSING-FEDERAL 

 

PART 884_SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM, NEW CONSTRUCTION 

SET-ASIDE FOR SECTION 515 RURAL RENTAL HOUSING PROJECTS--Table of Contents

 

               Subpart B_Project Development and Operation

 

Sec.  884.223a  Preference for occupancy by elderly families.



    (a) Election of preference for occupancy by elderly families--(1) 

Election by owners of eligible projects. (i) An owner of a project 

assisted under this part (including a partially assisted project) that 

was originally designed primarily for occupancy by elderly families (an 

``eligible project'') may, at any time, elect to give preference to 

elderly families in selecting tenants for assisted, vacant units in the 

project, subject to the requirements of this section.

    (ii) For purposes of this section, a project eligible for the 

preference provided by this section, and for which the owner makes an 

election to give preference in occupancy to elderly families is referred 

to as an ``elderly project.'' ``Elderly families'' refers to families 

whose heads of household, their spouses or sole members are 62 years or 

older.

    (iii) An owner who elects to provide a preference to elderly 

families in accordance with this section is required to notify families 

on the waiting list who are not elderly that the election has been made 

and how the election may affect them if:

    (A) The percentage of disabled families currently residing in the 

project who are neither elderly nor near-elderly (hereafter, 

collectively referred to as ``non-elderly disabled families'') is equal 

to or exceeds the minimum required percentage of units established for 

the elderly project in accordance with paragraph (c)(1) of this section, 

and therefore non-elderly families on the waiting list (including non-

elderly disabled families) may be passed over for covered section 8 

units; or

    (B) The project, after making the calculation set forth in paragraph 

(c)(1) of this section, will have no units set aside for non-elderly 

disabled families.

    (iv) An owner who elects to give a preference for elderly families 

in accordance with this section shall not remove an applicant from the 

project's waiting list solely on the basis of having made the election.

    (2) HUD approval of election not required. (i) An owner is not 

required to solicit or obtain the approval of HUD before exercising the 

election of preference for occupancy provided in paragraph (a)(1) of 

this section. The owner, however, if challenged on the issue of 

eligibility of the project for the election provided in paragraph (a)(1) 

of this section must be able to support the project's eligibility 

through the production of all relevant documentation in the possession 

of the owner that pertains to the original design of the project.

    (ii) The Department reserves the right at any time to review and 

make determinations regarding the accuracy of the identification of the 

project as an elderly project. The Department can make such 

determinations as a result of ongoing monitoring activities, or the 

conduct of complaint investigations under the Fair Housing Act (42 

U.S.C. 3601 through 3619), or compliance reviews and complaint 

investigations under section 504 of the Rehabilitation Act of 1973 (29 

U.S.C. 794) and other applicable statutes.

    (b) Determining projects eligible for preference for occupancy by 

elderly families--(1) Evidence supporting project eligibility. Evidence 

that a project assisted under this part (or portion of a project) was 

originally designed primarily for occupancy by elderly families, and is



[[Page 129]]



therefore eligible for the election of occupancy preference provided by 

this section, shall consist of at least one item from the sources 

(``primary'' sources) listed in paragraph (b)(1)(i) of this section, or 

at least two items from the sources (``secondary'' sources) listed in 

paragraph (b)(1)(ii) of this section:

    (i) Primary sources. Identification of the project (or portion of a 

project) as serving elderly (seniors) families in at least one primary 

source such as: the application in response to the notice of funding 

availability; the terms of the notice of funding availability under 

which the application was solicited; the regulatory agreement; the loan 

commitment; the bid invitation; the owner's management plan, or any 

underwriting or financial document collected at or before loan closing; 

or

    (ii) Secondary sources. Two or more sources of evidence such as: 

lease records from the earliest two years of occupancy for which records 

are available showing that occupancy has been restricted primarily to 

households where the head, spouse or sole member is 62 years of age or 

older; evidence that services for elderly persons have been provided, 

such as services funded by the Older Americans Act, transportation to 

senior citizen centers, or programs coordinated with the Area Agency on 

Aging; project unit mix with more than fifty percent of efficiency and 

one-bedroom units [a secondary source particularly relevant to 

distinguishing elderly projects under the previous section 3(b) 

definition (in which disabled families were included in the definition 

of ``elderly families'') from non-elderly projects and which in 

combination with other factors (such as the number of accessible units) 

may be useful in distinguishing projects for seniors from those serving 

the broader definition of ``elderly families'' which includes disabled 

families]; or any other relevant type of historical data, unless clearly 

contradicted by other comparable evidence.

    (2) Sources in conflict. If a primary source establishes a design 

contrary to that established by the primary source upon which the owner 

would base support that the project is an eligible project (as defined 

in this section), the owner cannot make the election of preferences for 

elderly families as provided by this section based upon primary sources 

alone. In any case where primary sources do not provide clear evidence 

of original design of the project for occupancy primarily by elderly 

families, including those cases where sources documents conflict, 

secondary sources may be used to establish the use for which the project 

was originally designed.

    (c) Reservation of units in elderly projects for non-elderly 

disabled families. The owner of an elderly project is required to 

reserve, at a minimum, the number of units specified in paragraph (c)(1) 

of this section for occupancy by non-elderly disabled families.

    (1) Minimum number of units to be reserved for non-elderly disabled 

families. The number of units in an elderly project required to be 

reserved for occupancy by non-elderly disabled families, shall be, at a 

minimum, the lesser of:

    (i) The number of units equivalent to the higher of--

    (A) The percentage of units assisted under this part in the elderly 

project that were occupied by non-elderly disabled families on October 

28, 1992; and

    (B) The percentage of units assisted under this part in the elderly 

project that were occupied by non-elderly disabled families upon January 

1, 1992; or

    (ii) 10 percent of the number of units assisted under this part in 

the eligible project.

    (2) Option to reserve greater number of units for non-elderly 

disabled families. The owner, at the owner's option, and at any time, 

may reserve a greater number of units for non-elderly disabled families 

than that provided for in paragraph (c)(1) of this section. The option 

to provide a greater number of units to non-elderly disabled families 

will not obligate the owner to always provide that greater number to 

non-elderly disabled families. The number of units required to be 

provided to non-elderly disabled families at any time in an elderly 

project is that number determined under paragraph (c)(1) of this 

section.



[[Page 130]]



    (d) Secondary preferences. An owner of an elderly project also may 

elect to establish secondary preferences in accordance with the 

provisions of this paragraph (d) of this section.

    (1) Preference for near-elderly disabled families in units reserved 

for elderly families. If the owner of an elderly project determines, in 

accordance with paragraph (f) of this section, that there are an 

insufficient number of elderly families who have applied for occupancy 

to fill all the vacant units in the elderly project reserved for elderly 

families (that is, all units except those reserved for the non-elderly 

disabled families as provided in paragraph (c) of this section), the 

owner may give preference for occupancy of such units to disabled 

families who are near-elderly families.

    (2) Preference for near-elderly disabled families in units reserved 

for non-elderly disabled families. If the owner of an elderly project 

determines, in accordance with paragraph (f) of this section, that there 

are an insufficient number of non-elderly disabled families to fill all 

the vacant units in the elderly project reserved for non-elderly 

disabled families as provided in paragraph (c) of this section, the 

owner may give preference for occupancy of these units to disabled 

families who are near-elderly families.

    (e) Availability of units to families without regard to preference. 

An owner shall make vacant units in an elderly project generally 

available to otherwise eligible families who apply for housing, without 

regard to the preferences and reservation of units provided in this 

section if either:

    (1) The owner has adopted the secondary preferences and there are an 

insufficient number of families for whom elderly preference, reserve 

preference, and secondary preference has been given, to fill all the 

vacant units; or

    (2) The owner has not adopted the secondary preferences and there 

are an insufficient number of families for whom elderly preference, and 

reserve preference has been given to fill all the vacant units.

    (f) Determination of insufficient number of applicants qualifying 

for preference. To make a determination that there are an insufficient 

number of applicants who qualify for the preferences, including 

secondary preferences, provided by this section, the owner must:

    (1) Conduct marketing in accordance with Sec.  884.214(a) to attract 

applicants qualifying for the preferences and reservation of units set 

forth in this section; and

    (2) Make a good faith effort to lease to applicants who qualify for 

the preferences provided in this section, including taking all feasible 

actions to fill vacancies by renting to such families.

    (g) Prohibition of evictions. An owner may not evict a tenant 

without good cause, or require that a tenant vacate a unit, in whole or 

in part because of any reservation or preference provided in this 

section, or because of any action taken by the Secretary pursuant to 

subtitle D (sections 651 through 661) of title VI of the Housing and 

Community Development Act of 1992 (42 U.S.C. 13611 through 13620).



[59 FR 65855, Dec. 21, 1994, as amended at 61 FR 9047, Mar. 6, 1996; 65 

FR 16723, Mar. 29, 2000]