N.Y. Comp. Codes R. & Regs. Tit. 9 § 2040.8 - Annual certification

(a) Certification period.

Annual certifications shall be submitted for all projects for which a final credit allocation has been issued and shall be submitted annually for the period during which the project is subject to regulation under the code. The owner of a low-income housing project shall certify annually under the penalty of perjury that the project or building is in compliance with all applicable State and Federal laws, regulations, procedures, policies and contractual obligations in a form approved by DHCR.

(b) Certification content.

The owner's certification shall include, but shall not necessarily be limited to the following elements:

(1) project and ownership data;

(2) certification that:

(i) the project meets the requirements of whichever minimum set-aside test is applicable to the project;

(ii)

(a) the owner has received an annual income certification from each tenant residing in a low-income unit and documentation to support that certification, or, in the case of a tenant receiving section 8 housing assistance payments, the statement from a public housing authority described in paragraph (b)(1)(vii) of 26 CFR section 1.42-5;

(b) after initial income certifications have been completed for all units in a project, the certification required by this subparagraph shall not be required for projects in which 100 percent of the residential units are LIHTC qualified low-income units, unless:

(1) DHCR has determined that the project is not in compliance with the provisions of this low-income housing credit qualified allocation plan, the code or the regulatory agreement required by section 2040.5 of this Part;

(2) DHCR has notified the project owner of the event(s) of noncompliance; and

(3) the project owner has not documented correction of, or otherwise resolved, the noncompliance to the satisfaction of the division;

(4) the division, at its discretion, chooses to continue requiring annual income recertifications, or to reinstate annual recertification requirements;

(iii) each low-income unit in the project is rent restricted under code section 42(g)(2);

(iv) all low-income units in the project are for use by the general public (as defined in 26 CFR part 1, section 1.42-9), including the requirement that no finding of discrimination under the Fair Housing Act, 42 U.S.C. 3601-3619, occurred for the project;

(v) all low-income units in the project are used on a nontransient basis except for transitional housing for the homeless provided under code section 42(i)(3)(B)(iii);

(vi) each building in the project is suitable for occupancy, taking into account local health, safety, and building codes and the State or local government unit responsible for making local health, safety, or building code inspections did not issue a violation report for any building or low-income unit in the project. If a violation report or notice was issued by the governmental unit, the owner must attach a statement summarizing the violation report or notice or a copy of the violation report or notice to the annual certification submitted to the DHCR. In addition, the owner must state whether the violation has been corrected;

(vii) there has been no change in the eligible basis (as defined in code section 42[d]) of any building in the project; or if there has been such a change(s), the owner shall certify to the nature of the change(s) (e.g., a common area has become commercial space, or a fee is now charged for a tenant facility formerly provided without charge) on a building-by-building basis;

(viii) there has been no change in the applicable fraction (as defined in code section 42[c][1][B]) of any building in the project; if there has been such a change(s) the owner shall certify to the nature of the change(s) on a building-by-building basis;

(ix) all tenant facilities included in the eligible basis under code section 42(d) of any building in the project, such as swimming pools, other recreational facilities and parking areas are provided on a comparable basis without charge to all tenants in the building;

(x) when and if a low-income unit in the project became vacant, reasonable attempts were being or will be made to rent that unit or the next available unit of comparable or smaller size to tenants having a qualifying income, before any units in the project were or will be rented to tenants not having a qualifying income;

(xi) if the income of tenants of a low-income unit increased above the limit allowed in IRC section 42(g)(2)(D)(ii), the next available unit of comparable or smaller size in the building was rented to tenants having a qualifying income;

(xii) an extended low-income housing commitment (regulatory agreement), as described in IRC section 42(h)(6), was in effect for buildings subject to section 7108(c)(1) of the Revenue Reconciliation Act of 1989, 103 stat. 2106, 2308-2311, including the requirement that an owner cannot refuse to lease a unit in the project to an applicant because the applicant holds a voucher or certificate of eligibility under section 8 of the United States Housing Act of 1937, 42 U.S.C. 1437f (for buildings subject to section 13142[b][4] of the Omnibus Budget Reconciliation Act of 1993, 107 stat. 312, 438-439);

(xiii) the project has been operated in compliance with the DHCR regulatory agreement (if applicable);

(xiv) there has been no change in ownership of the project or any building within the project during the previous calendar year; and

(xv) all low-income units in the project were used on a nontransient basis (except for transitional housing for the homeless provided under section 42[i][3][B][iii] or single-room- occupancy units rented on a month-by-month basis under section 42[i][3][B][iv]).

Notes

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2040.8

Amended New York State Register May 26, 2021/Volume XLIII, Issue 21, eff. 5/26/2021