1、444 24 CFR Ch. II (4111 Edition) Pt. 246 (3) The State or local agency must certify that the mortgagor has com-plied with the requirements of 245.410, 245.415, 245.416, 245.420, and 245.425. (b) After the State or local agency has considered the request for approval of a conversion or reduction that
2、 meets the requirements of 245.425, it must make a determination to approve or disapprove the conversion, or to ap-prove, adjust upward or downward, or disapprove the reduction. If the agency determines to approve the conversion or reduction (as originally proposed or as adjusted), it must submit to
3、 the ap-propriate local HUD office the mortga-gors request for approval of the con-version or reduction, along with the comments of the tenants and the mort-gagors evaluation of the comments, and must certify to HUD that the mortgagor is in compliance with the requirements of this subpart. HUD must
4、review the agencys determina-tion and certification and notify the agency of its approval or disapproval of the proposed conversion or of its ap-proval, adjustment upward or down-ward, or disapproval of the proposed re-duction. HUD will not unreasonably withhold approval of a conversion or reduction
5、 approved by the State or local agency. (c) If the agency determines to dis-approve the conversion or reduction, there is no HUD review of the agencys determination. (d) The agency must notify the mort-gagor of the final disposition of the re-quest, and it must furnish the mort-gagor with a written
6、statement of the reasons for its approval or disapproval. The mortgagor must make the reasons for approval or disapproval known to the tenants, by service of notice on them as provided in 245.15. If the agen-cy has approved the proposed conver-sion or a reduction, the notice must set forth the infor
7、mation prescribed in 245.430(b) (1) and (2). PART 246LOCAL RENT CONTROL Subpart AGeneral Provisions Sec. 246.1 Scope and effect of regulations. Subpart BUnsubsidized Insured Projects 246.4 Applicability. 246.5 Rental charges. 246.6 Initiation. 246.7 Notice to tenants. 246.8 Materials to be submitted
8、 to HUD in support of preemption request. 246.9 Request for preemption. 246.10 HUD procedures. 246.11 Notification of action on preemption request. 246.12 Preemption of prospective term of lease. Subpart CSubsidized Insured Projects 246.20 Applicability. 246.21 Rental charges. 246.22 Procedures. Sub
9、part DHUD-Owned Projects 246.30 Rental charges. 246.31 Procedures. AUTHORITY: 12 U.S.C. 1715b; 42 U.S.C. 3535(d). Subpart AGeneral Provisions 246.1 Scope and effect of regulations. (a) The regulation of rents for a project coming within the scope of Subpart BUnsubsidized Insured Projects is preempte
10、d under these regulations only when the Department determines that the delay or decision of the local rent control board, or other authority regulating rents pursuant to state or local law (hereinafter referred to as board) jeopardizes the Depart-ments economic interest in a project covered by that
11、subpart. The regula-tion of rents for projects coming within the scope of Subpart CSubsidized In-sured Projects is preempted in its en-tirety by the promulgation of these regulations. The regulation of rents for projects coming within the scope of Subpart DHUD-Owned Projects rests within the exclusi
12、ve jurisdiction of the Department. (b) Any state or local law, ordinance, or regulation is without force and ef-fect insofar as it purports to regulate rents of: (1) Projects for which a deter-mination of preemption has been made pursuant to subpart B, or (2) projects coming within the scope of subp
13、art C or D. Compliance with such law, ordi-nance, or regulation shall not be re-quired as a condition of, or prerequisite VerDate Mar2010 10:21 May 10, 2011 Jkt 223078 PO 00000 Frm 00454 Fmt 8010 Sfmt 8010 Y:SGML223078.XXX 223078WReier-Aviles on DSKGBLS3C1PROD with CFRProvided by IHSNot for ResaleNo
14、 reproduction or networking permitted without license from IHS-,-,-445 Office of Assistant Secretary for Housing, HUD 246.7 to, the remedy of eviction, and any law, ordinance, or regulation which purports to require such compliance is similarly without force and effect. (c) It is the purpose of the
15、Depart-ment that these regulations shall bar all actions of a board that would in any way frustrate the purpose or effect of these regulations or that would in any way delay, prevent or interfere with the implementation of any increase in rental charges approved by HUD. (d) These regulations may be
16、offered as a defense to a proceeding by whom-ever initiated, which may be brought or threatened to be brought against any owner, mortgagor or managing agent of a project subject to these reg-ulations who demands, receives or re-tains, or seeks to demand, receive or retain, rental charges approved by
17、 HUD, or as a basis for declaratory, in-junctive or other relief against any person or agency, public or private, who attempts to enforce, or threatens to enforce, any state or local law, ordi-nance, or regulation which is without force and effect by reason of this regu-lation. (e) This part applies
18、 to mortgages in-sured under the National Housing Act. It does not apply to mortgages insured under section 542(c) of the Housing and Community Development Act of 1992 (12 U.S.C. 1707). 40 FR 49318, Oct. 22, 1975. Redesignated at 49 FR 6713, Feb. 23, 1984, and amended at 58 FR 64038, Dec. 3, 1993; 5
19、9 FR 62524, Dec. 5, 1994 Subpart BUnsubsidized Insured Projects SOURCE: 44 FR 58504, Oct. 10, 1979, unless otherwise noted. Redesignated at 49 FR 6713, Feb. 23, 1984. 246.4 Applicability. This subpart applies to all projects with mortgages insured or held by HUD, except those to which subpart C appl
20、ies. 40 FR 49318, Oct. 22, 1975. Redesignated at 49 FR 6713, Feb. 23, 1984 246.5 Rental charges. The Department will generally not interfere in the regulation of rents by a rent control board or agency con-stituted under State or local laws (hereinafter referred to as board) for unsubsidized project
21、s with mortgages insured or held by HUD. However, HUD will preempt the regulation of rents, together with any board regulations which require the mortgagor to offer a lease for a term in excess of one year, under certain conditions. This preemp-tion may occur for such a project when the Department d
22、etermines that the delay or decision of a board prevents the mortgagor from achieving a level of residential income necessary to maintain and operate adequately the project, which includes sufficient funds to meet the financial obligations under the mortgage. 246.6 Initiation. When a mortgagor deter
23、mines that the permitted increase in rents as pre-scribed by the board will not provide a rent level necessary to maintain and operate adequately the project, and the mortgagor elects to request preemp-tion under this subpart, it shall: (a) File an application for whatever relief or redetermination
24、is permitted under the State or local law and; (b) Notify: (1) The tenants in accord-ance with 246.7 of this subpart, (2) the appropriate HUD office pursuant to 246.8, and (3) the board of the mortga-gors intention to file a request for pre-emption of local rent control regula-tion pursuant to the p
25、rovisions of regu-lations in this subpart. This action may be taken if either the boards writ-ten decision is unacceptable to the mortgagor or no written decision is re-ceived from the board within 30 days of the mortgagors request under para-graph (a) of this section. 246.7 Notice to tenants. At le
26、ast 30 days before filing a formal request to HUD for preemption of local rent control regulations, the mort-gagor shall notify the tenants of its in-tention to so file. Copies of the Notice shall be: (a) Delivered directly or by mail to each tenant; and (b) Posted in at least 3 conspicuous places w
27、ithin each structure or build-ing in which the affected dwelling units are located. VerDate Mar2010 10:21 May 10, 2011 Jkt 223078 PO 00000 Frm 00455 Fmt 8010 Sfmt 8010 Y:SGML223078.XXX 223078WReier-Aviles on DSKGBLS3C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted
28、without license from IHS-,-,-446 24 CFR Ch. II (4111 Edition) 246.8 The Notice shall contain the addresses where the materials, which constitute a complete submission as required by 246.8 in support of the proposed pre-emption request, are to be made avail-able to tenants as well as the required inf
29、ormation in the following equiva-lent format: NOTICE TO TENANTS OF INTENTION TO FILE A REQUEST TO HUD FOR PREEMPTION OF LOCAL RENT CONTROL REGULATIONS Date of Notice llllllllllllllllTake notice that on (Date) we requested the (Name) board to review our application for redetermination of permitted re
30、nts. Take further notice that on (Date), if the (Name) board fails to approve an income level necessary to maintain and operate ade-quately the project, or to act upon our re-quest, we plan to file a request for preemp-tion of local rent control regulations for (Name of Apartment Complex) with the U
31、nited States Department of Housing and Urban Development (HUD) which will result in an increase in your rental rate as provided within the terms of your lease. The re-quested preemption action is supported by the following: (1) HUD approved Gross Potential Income: Year approved, ll, $lllll. (2) Curr
32、ent Total Residential Rents Al-lowed by Local Rent Control Board, $lllll. (3) Projected Total Annual Residential Rents Allowable Under Local Board Regula-tions 6 Months After Date of this Notice, $lllll. (4) Income Required to Operate Project as Supported by Profit and Loss Statement Being Submitted
33、 to HUD, $lllll. Copies of the materials that we intend to submit to HUD in support of our request will be available during normal business hours as well as one evening a week after business hours which will be (Day) at (Address) for a period of 30 days from the date of this No-tice. The materials m
34、ay be inspected and copied by tenants of (Name of Apartment Complex and HUD Project No.) and if the tenants wish, by legal or other representa-tives duly authorized in writing to act for one or more of the tenants. During a period of 30 days from the date of this notice, tenants of (Name of Apartmen
35、t Complex and HUD Project No.) may submit written comments on the proposed preemp-tion request to us at (Address). Tenant rep-resentatives may assist tenants in preparing those comments. The inspection and com-ment period will be extended as necessary to (a) assure a 30-day comment period on a com-p
36、lete mortgagors submission and (b) to allow at least 5 days to comment on any written decision made by the board, if the decision is received by the mortgagor on or before the expiration of the thirty-day period and it was not available to the tenants dur-ing the first 25 days of the 30-day period.
37、These comments will be transmitted to HUD, along with our evaluation of them and our preemption request. You may also send a copy of your comments directly to HUD at the following address: United States Depart-ment of Housing and Urban Development, (address of local HUD field office with juris-dicti
38、on over preemption of rents for the project) Attention: Director, Housing Re: (Project No.) and (Name of Apartment Com-plex). HUD will approve or diapprove the pre-emption request in whole or in part upon re-viewing the materials and comments. When HUD advises us in writing of its decision on our re
39、quest, you will be notified at least 30 days before any change in the rental struc-ture is put into effect, in accordance with the terms of existing leases. llllllllllllllllllllllll(Name of mortgagor or managing agent) The mortgagor shall comply with all rep-resentations made in this Notice. 246.8 M
40、aterials to be submitted to HUD in support of preemption re-quest. (a) After posting or delivery of the Notice as required by 246.7, the mort-gagor shall immediately send HUD no-tification of its intention to file a pre-emption request, to include: (1) The written Notice to the tenants, which will s
41、tate the date of its posting and distribution. (2) An annual Statement of Profit and Loss, on a form prescribed by the Commissioner, audited by an inde-pendent public accountant and cov-ering the most recently ended account-ing year, and if more than four months have elapsed since the date of the Pr
42、of-it and Loss Statement, an unaudited accrual Profit and Loss Statement on a form prescribed by the Commissioner for the intervening period since the date of the annual statement, with the mortgagors certification as to its ac-curacy. (3) A certified statement which pro-vides a separate breakdown f
43、or the per-centage of vacancies for the present and previous year. (4) A certified statement which pro-vides a separate breakdown of the ac-tual rent loss due to nonpayment of rent for the past 2 years. (5) A certified statement which pro-vides a separate breakdown of rent loss VerDate Mar2010 10:21
44、 May 10, 2011 Jkt 223078 PO 00000 Frm 00456 Fmt 8010 Sfmt 8010 Y:SGML223078.XXX 223078WReier-Aviles on DSKGBLS3C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-447 Office of Assistant Secretary for Housing, HUD 246.10 due to tenant turn
45、over for the past 2 years. (6) A certified statement covering known approved rate or cost increases not yet experienced by the project which can be documented by the fol-lowing: (i) Tax rates or appraisals, (ii) Utility rates, (iii) Contracts for employees or serv-ices, (iv) Insurance, and (7) A cer
46、tified statement covering known decreases of rates or costs not yet experienced by the project which have been approved and can be docu-mented as follows: (i) Tax rates or appraisals, (ii) Utility rates, (iii) Contracts for employees or serv-ices, (iv) Insurance. If there are none, the mortgagor mus
47、t so certify. (8) A copy of the full application to the board with supporting documenta-tion. (b) The local HUD office shall review the mortgagors submission promptly upon receipt, to ascertain that it is complete as required by paragraph (a) of this section. Should the submission be found to be inc
48、omplete, the local HUD office shall notify the mortgagor within 48 hours of the review of its de-termination that further material is necessary to constitute a complete sub-mission as defined in paragraph (a) of this section. (c) When the submission is complete, the HUD office shall hold the mortga-
49、gors submission as specified in para-graph (a) of this section in abeyance until a preemption request is received pursuant to 246.9. (d) If the mortgagor subsequently re-submits any change to the submission as described in paragraphs (a) (1) through (7) of this section, it will be re-quired to provide the tenants with an additional 30 days to comment. 246.9 Request for preemption. (a) Upon expiration of the period for tenant comm
