A Dangerous Disappearing Act: Preserving Affordable Housing in the Face of Maturing Mortgages

Abstract: By the year 2020, almost all of the affordable housing units created by Sections 221(d)(3) and 226 of the Housing Act of 1937 could disappear. These units were created in the late 1960s in an effort to draw more private equity to the affordable housing market. The federal government entered into contracts with developers, exchanging mortgage subsidies and insurance for affordability clauses in the developers' mortgages that required a certain percentage of their developments be kept for affordable housing for the life of the mortgage. These mortgages were set for a term of forty years. The country is now faced with an unprecedented housing crisis as these mortgages reach their maturity mark. Unfortunately, the federal government lacks the funding and political will to pass the necessary legislation to protect the current stock of affordable housing. Furthermore, only a handful of states have taken the lead in efforts to preserve affordability through new laws that impose notice requirements on owners of developments reaching maturity, and afford rights of first offer and first refusal to local housing authorities so that they may purchase these properties to retain affordability. This Note argues that more states should adopt such laws to ensure that the tens of thousands of families who are bound to lose their subsidized housing are provided reasonable protections.INTRODUCTIONTina Amenta lived with her husband in a Colorado town in a rental unit subsidized by the Fort Collins Housing Authority ("FCHA").1 She, along with dozens of other families, was forced to pack up and move when the FCHA decided to sell eighty-eight of its 154 public housing units.2 The FCHA sold the units because, as a local housing agency, it did not receive enough government funds to refurbish and maintain each unit.3 Fort Collins families were "heart broken" to leave their homes.4 The FCHA provided vouchers to the displaced residents to supplement rent at a new development.5 Nonetheless, many of the displaced tenants could not find new affordable housing because affordable rental units in Fort Collins, as in many places around the United States, are extremely scarce.6Because Ms. Amenta can only afford two hundred dollars for monthly rent, she cannot afford to rent a market-rate apartment; that is, she must either find another affordable unit or risk homelessness.7In early 2011, low-income tenants of the Los Angeles neighborhood of Arlington Heights received letters from their landlord notifying them of significant rent increases, in some cases doubling their monthly payment. 8 The rent increase forced some tenants, including many long-term residents, to move. 9 Similarly, in 2011, residents of the Burbank Apartments development in Boston's Fenway neighborhood were informed that more than 170 affordable housing units, representing ten percent of the neighborhood's affordable housing, were being converted to market-rate units.10 The development's owner, First Realty Management, decided to opt out of its Section 8 contract and convert the affordable units to market rate.11 The current tenants were promised vouchers from First Realty Management to subsidize their current or future apartments.12 Once the current tenants move out of their units, however, the units will no longer be available as subsidized housing.13When the owners of developments such as Burbank Apartments and Arlington Heights purchased their respective properties, they did so with the assistance of a number of government programs.14 In the 1960s and 1970s, the U.S. Congress established federal housing programs to incentivize private investment in the affordable housing market.15 Through these federal programs, owners were able to borrow money from the bank to buy the development at an interest rate far below the market rate at the time.16 The U.S. government subsidized the low interest rate by promising to pay the bank the resulting difference in interest rates. …