Comments to FHFA on Tenants Rights

The Honorable Sandra Thompson, Federal Housing Finance Agency Washington, D.C.

RE:  Response to FHFA Request for Information on Tenants Rights

Dear Director Thompson:                                                                                                 July 31, 2023

On behalf of the Leaders and Organizers for Tenant Empowerment (LOFTE) Network, we write to offer recommendations to advance tenants’ rights from experienced federally-assisted tenant leaders and advocates from across the US. 

We applaud the historic initiative of the Federal Housing Finance Agency (FHFA) to consider nationwide standards for tenants’ rights in rental properties with federally-backed mortgages.  While it would be desirable for these recommendations to apply to existing FHFA backed properties, at a minimum, FHFA should make clear that future purchases of mortgage securities by the GSE’s will be conditioned on owner adherence to national standards for tenants’ rights.  FHFA’s adoption of such standards will both directly benefit future tenants in properties with federally-backed mortgages, and set important precedents  for the rental housing industry and state and local governments, across the board. 

The LOFTE Network is comprised of 20 locally-based, areawide nonprofit tenant assistance groups with deep organizing experience in privately-owned, federally-assisted housing.  All of us organize democratic tenant associations at the building level and engage lower income tenants with lived experience and policy expertise as leaders in our organizations. 

Collectively, we have preserved and improved tens of thousands of at-risk HUD Multifamily homes through tenant organizing, one building at a time, in a wide variety of HUD programs. [1]  We have established numerous pro-tenant policies and precedents along the way, collaborating with HUD Headquarters and regional staff as HUD’s “Eyes and Ears” in the oversight of our homes. In recent years, many of us have begun to organize Low Income Housing Tax Credit (LIHTC) buildings, where LIHTC is the primary or only federal subsidy.   Since the White House Blueprint, the LOFTE Network has begun a dialogue with HUD, the Treasury and the White House regarding tenants’ rights, on behalf of our memberships; more than 100 tenant leaders and organizers joined our first national meeting with HUD’s Office of Multifamily Housing, on July 21, 2023.  

In response to FHFA’s Request for Information, we forward these recommendations; 

  1. Extend and Enforce a Federally Guaranteed Right to Organize. Across the US, tenants are largely unorganized and unaware of their rights.  Tenants often fear retaliation or eviction if they speak up about repair needs or seek to organize their neighbors. Fear of eviction is particularly widespread among vulnerable lower income tenants, such as people of color, women with children, the elderly, people with disabilities, and immigrants.  Besides contributing to an anti-democratic culture in rental housing, tenants afraid to communicate repair needs to owners can make emergent repair problems worse, to the long term detriment of the property and FHFA’s investment in it.  Because not all states have protections against retaliatory eviction, national standards are needed.

In response, over the decades, groups in the LOFTE Network advocated successfully with HUD to establish an enforceable Right to Organize in HUD Multifamily Housing, including:

24 CFR Part 245 requires owners and management to recognize “legitimate tenant organizations” and to give reasonable consideration to their concerns.  It defines a “legitimate tenant organization” as one that meets regularly; operates democratically; is representative of all tenants in the development,;and is “completely independent” of owners and managers.  An “organizing committee” is recognized as legitimate if it meets these tests; HUD Housing Notice 2016-5 clarifies that the definition of “legitimate tenant organizations” includes organizing committees newly formed by residents, and does not require specific structures, written by-laws, elections or petitions.

Part 245 also requires owners and their agents to allow tenants and tenant organizers to conduct “protected activities” related to the establishment and operation of a tenant organization.  These include:  (1) Distributing leaflets in lobby or common areas;  (2)  Distributing leaflets at or under tenants’ doors; (3) Initiating contact with tenants; (4) Conducting door to door surveys; (5) Posting information on bulletin boards; (6) Meeting without management representatives present.  Tenants are also guaranteed access to common spaces to hold meetings.  Tenants and organizers may conduct other reasonable activities related to establishment of a tenant’s organization.  Owner/Agents “shall not require tenants and organizers to obtain prior permission” before engaging in protected activities.

Non-tenant organizers or advocates are allowed to assist tenants in these activities.   Owners “must allow tenant organizers” to assist tenants in establishing and operating a tenants organization. If a multifamily building has a consistently enforced, written policy against canvassing, than an “outside” organizer must be accompanied by a tenant while on the property.  However, if a property allows canvassing, or does not have a consistently enforced, written policy prohibiting canvassing, then the property is treated as allowing canvassing.   

Most importantly, owners and agents are forbidden from harassment or retaliation against tenants who assert their rights, and may be liable for sanctions by HUD if they violate these rights.    

24 CFR Part 245 standards are generally recognized as the “gold standard” for the Right to Organize in multifamily housing.  HUD extended these regulations to properties in HUD”s Rental Assistance Demonstration after they convert to private ownership.  Part 245 has also served as the model for recent local legislative efforts for privately owned rental housing, such as the San Francisco Right to Organize ordinance adopted in 2022. 

We urge FHFA to extend an enforceable Right to Organize based on Part 245, to all properties with GSE backed mortgages in the future. 

While Part 245 rights are strong on paper, HUD enforcement has been almost non-existent, despite widespread violations.  We urge FHFA to establish an enforcement protocol applying to future FHFA assisted properties, including fines for Owner/Agent violations of tenants’ rights.  LOFTE can share with FHFA detailed enforcement recommendations with suggested fines for common violations of the right to organize.  FHFA should create an internal Enforcement Office to receive and investigate complaints and assess fines where warranted.

2. Outlaw discrimination based on Source of Income.  Nationwide, landlord refusal to rent to low income renters with Section 8 Vouchers, or to accept Emergency Rental Assistance, is an obvious surrogate for discrimination against renters of color, women with children, and people with disabilities.  Only a few jurisdictions have   local laws prohibiting discrimination on the basis of Source of Income, and enforcement is often lagging.  A national standard with strong enforcement provisions would go a long way toward ensuring that renters with Vouchers are able to find a home.  In tight markets in particular, Voucher rejections prevent many people from finding an apartment within the 4 to 6 month time window and result in people losing their voucher and/or becoming homeless.  A strong national standard is needed.

3. Provide Just Cause for Eviction. Providing Just Cause for Eviction for tenants is crucial to maintaining housing stability, especially for lower income households.  Tenants should not live in fear of arbitrary, “no cause” evictions, and should have a right to remain in their homes when leases expire and they are able to meet reasonable landlord terms for renewal.   

HUD Multifamily housing tenants have had Just Cause for Eviction in Project Based Section 8 leases with 1.2 million families for many years. It has worked well for decades to provide housing stability for low income families, and large corporate owners have accepted this standard.  If it has worked for the tenants represented by the LOFTE Network, it can work for others in privately-owned housing. 

Moreover, the national eviction ban during the COVID emergency, coupled with Emergency Rental Assistance, saved millions from arbitrary evictions and showed what national just cause standards could do to dramatically improve housing stability. We urge FHFA to extend Just Cause protections as well, to future rental property with FHFA mortgage backed securities. 

4. Prohibit Rent Gouging. Related to Just Cause, landlords in FHFA assisted properties should be limited to reasonable rent increases upon turnover, to improve housing stability, particularly for vulnerable lower income tenants.  This will also help curb the large corporate speculative investors who have been buying up rental properties, including former owner-occupied foreclosed buildings,  some offered for sale by federal agencies and often with FHFA backed mortgages.

5. Require the strongest state/local tenants rights protections nationwide.  FHFA has issued a recent report cataloguing state and local laws for basic renters rights in multifamily housing.  In 2018, one of our members, the Texas Tenants Union published a similar matrix.  As a general principle, FHFA should require the strongest of these enumerated state and local laws throughout the US, as national standards for new housing underwritten by Freddie Mac or Fannie Mae. 

For example, tenants in some states are allowed to Withhold Rent in Escrow if their landlord fails to make repairs.  Similarly, some states allow tenants to “Repair and Deduct” the cost of repairs from their rent if landlords fail to make repairs in a timely manner. These protections have worked well for decades in the states where tenants have had these rights.   FHFA should extend these rights to tenants in any future properties receiving federally-backed mortgages.  This will empower tenants to directly engage with owners and managers to improve health and safety outcomes for their families.

In addition, FHFA should allow tenants in any property receiving GSE backed mortgage assistance the Opportunity to “Cure” any Lease Violations (such as late rent payment) prior to eviction actions. FHFA should require any property developed in Arkansas to provide a Warranty of Habiltability.   (Arkansas is today apparently the only state without this guarantee.)

Other state law protections that FHFA could extend to future FHFA backed properties, include:

  • Placing a limit on charges for late rent
  • Providing at least 24 hours Notice before landlord entry to an apartment, except in emergencies
  • Prohibit lock-outs and utility shut-offs
  • Prohibit landlord liens on tenants’ property

6. Adopt uniform standards for decent, safe and sanitary Housing.  We also encourage FHFA to reference the new National Standards for the Physical Inspection of Real Estate (NSPIRE) adopted in 2023 by HUD for Project Based Section 8, Tenant Protection Vouchers, and Public Housing.  The newly consolidated NSPIRE regulations  include comprehensive, state-of-the art standards for addressing common health and safety issues, such as mold and underlying water leaks, bedbugs and other pest infestations, carbon monoxide and more.   They were developed over the past few years through a national NSPIRE Demonstration project and public consultation with directly affected residents, owners, public housing agencies and advocates.   Owners receiving underwriting assistance by FHFA should be required to meet these standards, and residents should be informed of their right to grieve and enforce them. 

These standards should also include basic accessibility requirements for people with disabilities, consistent with the Americans for Disability Act. 

7. Provide tenants with Access to Information. Residents can best serve as partners with owners and agents if they have access to basic information regarding their rights and decisions affecting their homes.  FHFA can use its authority to require owners to:

  • Require owners of affected properties to distribute Tenants Rights information (modeled on HUD’s Tenants Rights Brochure) annually to all residents upon lease signing.
  • Require Notice to tenants of major decisions affecting their housing, such as property sale, change in management agent, major renovations and relocation
  • Information regarding the beneficial owners of their development (i.e., identify beneficial partners, real owners and investors)

We urge FHFA to use this historic opportunity to extend these protections for all households expected to live in properties with future federally-backed mortgages.  In particular, protections are necessary to ensure that the lowest income and most marginalized renters can save and improve their homes. 

Thank you for your consideration.  Please respond to Michael Kane, Chair of the Leaders and Organizers for Tenant Empowerment Network at [email protected]  and 617-233-1885 (cell) if you have any questions.     

Leaders and Organizers for Tenant Empowerment

Michael Kane, Mass Alliance of HUD Tenants

Camilo Viveiros, George Wiley Center, Rhode Island

Bill Good, Greater Newark HUD Tenant Coalition

Genesis Aquino, New York State Tenants & Neighbors    

Sharon Sherman, Greater Syracuse Tenants Network      

Allison Johnson, Housing Justice League, Atlanta

Foluke Nunn, AFSC/Economic Justice Program, Atlanta

Claudia Sanford, United Community Housing Corporation, Detroit

John Bartlett, Metropolitan Tenants Organization, Chicago

Don Washington, Chicago Housing Initiative

Eric Hauge, HOME Line, Minneapolis, MN

Ivory Taylor, Housing Justice Center, MN

Neil Sealy, Arkansas Community Organizations/Arkansas Renters United

Sandy Rollins and Alice Robinson, Texas Tenants Union, Dallas

Larry Gross, Coalition for Economic Survival (CES), Los Angeles

Susie Shannon, Housing Is a Human Right, Los Angeles

Fred Sherburn-Zimmer, Housing Rights Committee of San Francisco

Rob Wiener, California Coalition for Rural Housing

Leanna Noble, Long Beach Residents Empowered (LIBRE), Long Beach, CA

Terri Anderson, Tenants Union of Washington State

 

Cc:  Marcia Fudge, Secretary, HUD

        Dr. Ruth Jones-Nichols, HUD

        Vincent Reina, White House Domestic Policy Office

        LOFTE Network

[1]  These range from Troubled Housing/Foreclosure and Property Disposition; the Title II/VI Preservation Programs, including resident-controlled developments; Mark to Market and Mark Up to Market re-financings; Section 8 Renewals or Opt-Outs; Enhanced Vouchers; the Rental Assistance Demonstration, and more.

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