New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle S - Division of Housing and Community Renewal › Chapter VI - Neighborhood Park Land Acquisition Program › Subchapter B - Low-income Housing Tax Credit Program › Part 2040 - Low-income Housing Tax Credit Program › Section 2040.8 - Annual certification

Current through Register Vol. 46, No. 28, July 10, 2024
(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]).