21 Oct 2015

Proposed Housing Bill HR3700 – The Housing Opportunity Through Modernization act of 2015

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Thomas M. Skiba, CAE
Chief Executive Officer
Community Associations Institute
Statement for the Record
Hearing Entitled: ‘‘The Future of Housing in America—–
Federal Housing Reforms that Create Housing Opportunity’’
House Financial Services Committee, Subcommittee on Housing and Insurance October 21, 2015

On behalf of the more than 66 million Americans who live in community associations—- often referred to as homeowners associations, planned communities, condominiums, or housing cooperatives—-Community Associations Institute (CAI) submits this statement for the committee’s consideration.

The community association model of housing not only provides key benefits to homeowners and residents, but also plays a central role in meeting housing needs for first-time homebuyers. Ownership in a condominium project is often one of the more affordable housing options for Americans. In short, most condominium unit owners are representative of the consumers the Federal Housing Administration (FHA) was designed and created to serve.

General Comments

CAI believes Title III of H.R. 3700 is a constructive step toward easing some pressure points that have prevented condominiums from seeking or qualifying for FHA project approval. CAI members appreciate the committee’s attention to FHA’s condominium unit mortgage insurance program. Additional oversight of this program will improve FHA processes and reverse FHA’s flight from the condominium market.

Condominium Amendments in HERA a Source of Market Dislocation

FHA’s condominium-related statutory authority was revised with little discussion and fanfare in the Housing and Economic Recovery Act (HERA) of 2008, which eliminated FHA’s separate statutory authority for insuring condominium unit mortgages and placed condominium unit mortgages under the purview of FHA’s general 203(b) single family mortgage insurance program. This statutory revision and the numerous resulting mortgagee letters revising condominium policy in the midst of the housing crisis resulted in a drastic reduction in FHA condominium unit market share.

FHA currently operates its condominium mortgage insurance program without the benefit of an updated or current regulation. While Congress acted through HERA to

revise the statutory authority for FHA’s condominium mortgage program in 2008, the agency has yet to propose for public comment a new regulation. Rather, FHA has relied on regulation by mortgagee letter. The result has been a rigid, inflexible process. FHA indicated in 2010 that a regulation would be drafted, but as 2015 draws to a close there is no proposed regulation.

To further illustrate this point, FHA has yet to bring forth any proposal to incorporate its condominium project approval policy in the Single Family Handbook. This failure is emblematic of an agency culture that has placed a low priority on FHA’s role in the condominium market. While work has continued at the staff level, senior level agency officials do not appear to view the condominium market as an important market for FHA.

FHA Regulation at 24 CFR 203.41 a Source of Friction for Condominium Associations

The numerous condominium standards pushed into the market by FHA absent public comment, consultation, or any empirical study to understand market impact led many condominium associations to view FHA as a demanding and inconsistent partner. To illustrate this point, FHA regulation at 24 CFR 203.41, which is intended to ensure assumability of FHA mortgages and protect consumers from certain practices, was the basis of considerable market consternation.

24 CFR 203.41 was cited in FHA denials for projects with affordable housing units where the affordable designation survived foreclosure (this policy has since been revised). The regulation is the basis of continued confusion and project approval rejections over the use of community transfer fees, a common and lawful practice used by the vast majority of all community associations, including condominium associations. FHA has also relied on 24 CFR 203.41 as the legal basis to deny approval to condominiums that have sought to incorporate FHA approval standards in the association’s rules so the condominium board can protect the project’s ongoing FHA eligibility.

For example, many associations were ruled ineligible after adopting FHA owner- occupancy limits and requiring that owners receive approval from the board prior to leasing. These requirements did not permit board approval of a tenant, but were intended to verify before a lease is signed that the lease would not cause the condominium to be in violation of FHA eligibility standards.

A robust discussion of FHA regulation at 24 CFR 203.41 and its effect on condominium project approval could lead Congress to consider additional programmatic reform. It is important to preserve assumability and limit discriminatory practices that could harm

consumers. However, given the legal and contractual basis of condominium unit ownership, Congress could constructively consider offering reasonable flexibility in FHA’s condominium mortgage insurance program without harming FHA, taxpayers, or consumers. Such an outcome would ensure FHA is not only viewed as a stable and reliable partner for condominium associations, but actually becomes the partner condominium associations need.

Documenting the FHA Retreat from the Condominium Market

With regard to the impact of FHA’s statutory and policy changes in the condominium unit market, the numbers speak for themselves. Based on FHA reports and disclosures, CAI determined that condominium unit mortgages accounted for only 2.9 percent of FHA’s 2014 book of business. FHA data from 2015 show that condominium unit mortgages remain at these historical lows in terms of percentage of book of business.

These data raise an important question: are lower FHA mortgage insurance premiums helping condominium unit owners? Further, does the agency’s condominium project approval process actively prevent these consumers from accessing lower cost FHA insured mortgage products?

A comparison of the number of condominium unit mortgages endorsed in 2001 to the number in 2014 is instructive. According to FHA reports and data, the agency endorsed 81,336 condominium unit mortgages in 2001 compared to 22,804 in 2014. The following chart illustrates FHA condominium market activity from 2001 through 2014.

FHA BILL CHART

Source: FHA Quarterly Reports and Reports to Congress

The dramatic drop off in condominium endorsements in 2011and resulting downward trend begins as FHA’s new condominium project approval policies are absorbed by the

market and the two-year certifications expire and are not renewed. The drop off from 2005 to 2007 came as FHA lost market share overall as lenders originated loans for sale in the secondary market to be packaged in private label securitizations.

The sharp increase FHA condominium unit endorsements in 2009 and 2010 is attributable to the key countercyclical role FHA played in the condominium unit market at the height of the crisis as the private label market collapsed. Under the current project approval structure, FHA would have no means to provide similar countercyclical support for this marketplace during times of future market duress. If Congress wants FHA to play a countercyclical role in a distressed market, it should either direct or empower the agency to do so for the entire market, including condominium units.

Section-by-Section Comments

CAI supports a longer certification period and strongly supports adoption of commonsense approaches to reducing the burden of recertification. Reducing costs for condominium associations that are related to recertification is a constructive and useful step.

On a technical matter, page 61, lines 9 and 10 refer to FHA mortgage insurance for condominium projects. Under a little used program, FHA has previously insured mortgages for condominium projects, but this authority is separate from mortgage insurance under FHA’s 203(b) mortgage insurance program. Due to the amendments enacted in HERA, FHA insures forward condominium unit mortgages only under its 203(b) authority.

CAI respectfully urges the committee to consider if a technical correction is warranted to clarify Title III applies to the insurance of mortgages secured by individual condominium units rather than the defunct FHA program to insure mortgages secured by a condominium project.

(2) Commercial Space Requirements.

CAI members have advocated a more flexible approach to qualifying condominium projects with a commercial space component. In certain housing markets, condominium projects with access to grocery stores, sport and health clubs, and other consumer services are in great demand.

These projects are often predicated on a high density housing model located near key services such as public transportation centers offering owners access to employers, education, and healthcare. CAI members believe FHA could offer additional flexibility in the process of obtaining necessary waivers where commercial space may exceed general program requirements.

CAI notes that associations submitting for project approval and the commercial space exemption through the HUD Review and Approval Process (HRAP) may face some difficulty in preparing an economic analysis as described in (2)(B). This option is more likely to be pursued by new mixed-use condominium projects still under development while existing mixed-use projects may find such an exemption less useful.

(3) Transfer Fees.

CAI members strongly support alignment of FHA policy concerning community transfer fees with the current regulatory standard enforced by the Federal Housing Finance Agency (FHFA). FHA has, in the view of CAI members, improperly applied its regulation at 24 CFR 203.41 concerning legal restrictions on conveyance to disallow or sow confusion on the eligibility for FHA programs of community associations that use community transfer fees.

Community transfer fees are deed-based and are used to directly benefit encumbered properties. These fees meet the long-standing benefit-burden test established in the Restatement (Third) of Servitudes, which provides that any burden that runs with encumbered land must also directly benefit the encumbered land. FHFA enshrined this legal principle in its regulation concerning transfer fees while FHA has failed to do so. The resulting confusion has been harmful to not only condominium associations, but to all community associations, including planned communities, that have adopted a transfer fee.

(4) Owner Occupancy Requirement.

In general, CAI believes a reduction of the owner-occupancy requirements will increase the number of condominium projects that will qualify for FHA project approval.

However, this general FHA project approval criterion must in no way be viewed as a prohibition on a condominium association’s authority to promote owner occupancy of units by adopting owner occupancy standards that exceed the FHA minimum standard. Further, this statutory change must not impede a condominium association from enforcing an owner occupancy standard that limits the total number of units in the project that may be leased at any one time.

Condominium unit owners have a clear interest in preserving the residential character and purpose of a condominium project while also ensuring that unit owners have a reasonable ability to lease their unit. This protects the financial stability of the condominium project as well as the prerogatives of unit owners who may wish or need to lease their unit.

Additionally, it is CAI’s understanding that FHA counts REO properties against the general 50 percent owner occupancy requirement. At the height of the foreclosure crisis as lenders held on to REO properties while waiting for markets to recover (with the blessing of regulators), this policy prevented many condominiums from either meeting the certification requirements or the ongoing requirements to which lenders must certify in presenting a condominium unit mortgage for FHA endorsement.

This section could be usefully amended by requiring FHA to revise or clarify agency policy concerning REO or to consider other economic factors when including REO in the owner occupancy ratio.

On behalf of the more than 66 million Americans living in community associations, thank you for the opportunity to provide these comments for consideration.

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