1. (a) All residential rental units in the development must be available for use by the general public.

2. (b)

   1. (1) LIHTC properties are subject to Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act, 42 U.S.C. §§ 3601 – 3619.

   2. (2) The Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings based on:

      1. (A) Race or color;
      2. (B) Religion;
      3. (C) Sex;
      4. (D) National origin;
      5. (E) Familial status (including children under the age of eighteen (18) living with parents or legal custodians, pregnant women, and people securing custody of children under eighteen (18)); and
      6. (F) Disability.

   3. (3) However, all households must be eligible in the areas of:

      1. (A) Income;
      2. (B) Occupancy;
      3. (C) Selection criteria by management; and
      4. (D) Type of property.

3. (c)

   1. (1) Tax credit units may not be provided:

      1. (A) Only for members of a social organization; or
      2. (B) By an employer for its employees.

   2. (2) Also, a residential unit is not for use of the general public, and therefore does not qualify under the Internal Revenue Code as part of a:

      1. (A) Hospital;
      2. (B) Nursing home;
      3. (C) Sanitarium;
      4. (D) Life care facility;
      5. (E) Dormitory;
      6. (F) Trailer park;
      7. (G) Retirement home that provides significant services other than housing; or
      8. (H) Intermediate care facility for the disabled.

4. (d)

   1. (1) The Fair Housing Act also mandates specific design and construction requirements for multi-family housing built after March 13, 1991, to provide accessible housing for individuals with disabilities.

   2. (2) Owners are expected to be familiar with accessibility requirements for their developments in compliance with:

      1. (A) The Fair Housing Act;
      2. (B) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and
      3. (C) The Americans with Disabilities Act.

   3. (3) Some of those pertinent facts are:

      1. (A) New construction requirements. Since March 13, 1991, the Fair Housing Act has required that downstairs units in nonelevator buildings and all units in elevator buildings be accessible;
      2. (B) Reasonable accommodation. The law requires that reasonable accommodations in rules, regulations, policies, and procedures may have to be made for disabled applicants or residents;
      3. (C) Reasonable modification. The law requires that reasonable physical alterations cannot be refused to an applicant or tenant;
      4. (D) Section 504.

5. (i) Section 504 of the Rehabilitation Act of 1973 covers all federal programs, including Community Development Block Grant, HOME funds, United States Department of Agriculture Rural Development, PHA, and Department of Housing and Urban Development properties.

   1. (ii) New construction and substantial rehabilitation require that a minimum of five percent (5%) of units or a minimum of one (1) and additional two percent (2%) of units or a minimum of one (1) be adapted for wheelchair and visual/hearing impaired respectively.

      1. (iii) All common areas must be accessible to and useable by the physically mobility impaired.

         1. (iv)
6. (a) (a) While the Fair Housing Act states that reasonable modification costs may be charged to tenants, Section 504 of the Rehabilitation Act of 1973 states it is a project expense unless it poses a financial or administrative burden.

7. (b) (b) It is the owner's responsibility to provide documentation to prove financial or administrative burden; and

   1. (E) The Fair Housing Act applies to all LIHTC developments.

      1. (i)
8. (a) (a) Section 504 of the Rehabilitation Act of 1973 does not apply to conventional nine percent (9%) deals without other federal funds.

9. (b) (b) This ruling may be subject to change.

   1. (ii) The Americans with Disabilities Act provision in regard to public accommodations would require offices and other common areas to be accessible.

10. (e)

    1. (1) The current Annual Owner's Certification being used by the Arkansas Development Finance Authority asks the owner to indicate if a finding of discrimination under the Fair Housing Act, 42 U.S.C. §§ 3601 – 3619, has occurred for the development.

    2. (2) A finding of discrimination includes an:

       1. (A) Adverse final decision by the Secretary of Housing and Urban Development, 24 C.F.R. § 180.680;
       2. (B) Adverse final finding by a substantially equivalent state or local fair housing agency, 42 U.S.C. § 3616a(a)(1); or
       3. (C) Adverse judgment by a federal court.

Codification Notes: "LIHTC" means low-income housing tax credit. "PHA" means public housing authority.