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Affordable Housing and Community Development

LEADERSHIP: Scott E. Fireison and Christine Waldmann Carmody

The Affordable Housing Group, which is part of the firm’s Financial Services Practice Group, is founded upon a solid core of real estate, finance, tax and lending experience and has lawyers with concentrated experience in affordable housing and economic and community development activities using federal, state, local and private financial guarantees and assistance.


Federally Assisted Housing and Community Development

While many firms have experience in either housing, public finance, banking, real estate, administrative law or litigation, we are one of the few firms in the country that combines these disciplines in a comprehensive, national affordable housing and community development practice.  The practice is national in scope, and we regularly assist clients by negotiating development terms, closing loans, handling various aspects of housing and community development projects and obtaining public financing and assistance, as well as implementing legislative, regulatory and litigation strategies in Washington, D.C. and throughout the country.

The proximity of our Washington office enables us to represent clients directly before the U.S. Department of Housing and Urban Development (HUD), the Internal Revenue Service (IRS), the Government National Mortgage Association (GNMA), Fannie Mae, the Federal Home Loan Mortgage Corporation (Freddie Mac), the Federal Reserve Board (FRB), the Office of Comptroller of the Currency (OCC), the Department of the Treasury (DOT), the Department of Defense (DOD) and the Department of Justice (DOJ).

Our extensive experience with agency programs is particularly helpful in obtaining approval of business plans, defending against enforcement actions for alleged regulatory violations, resolving disputes over use of grant funds, negotiating the purchase of assets from government agencies, facilitating participation in agency financing programs, assisting clients in negotiating workout arrangements and claims, and keeping abreast of pending legislative and regulatory requirements and their impact on our clients and their businesses.

Our clients include virtually all of the participants in the housing process: developers, national and local nonprofit entities, public housing agencies, lenders, investors, conduits, mortgage and investment bankers, owners, managers, contractors, underwriters, and mortgage insurance companies. We are active in and familiar with all HUD housing, community development, public housing, FHA and GNMA programs, the multifamily programs of Fannie Mae and Freddie Mac, the Low Income Housing Tax Credit (LIHTC), the American Recovery and Reinvestment Act of 2009 (ARRA), the requirements of the Community Reinvestment Act (CRA), as well as state and local housing finance agency and public housing authority and development programs and the evolving programs of the Defense Department. We represent for-profit and nonprofit developers and managers and have organized scores of nonprofit development entities, and nonprofit/for-profit joint ventures in order to take advantage of federal, state and local funding opportunities.

We are active in virtually every relevant national professional organization and trade association involved in these issues; we serve on their boards and speak regularly at their meetings. Additionally, the firm publishes the Housing Update, a periodic review and analysis of current affordable housing legislative and regulatory developments. We also host a free breakfast program, Housing Update Live and HUD 101, which bring current governmental and industry leaders to our Washington office to discuss topics of interest to members of the national multifamily housing community.

Beyond performing the basic legal work necessary to structure and close transactions, we offer additional value by assisting clients in identifying potential opportunities and problems and available options. In representing nonprofit and public entities, we normally find ourselves as central players in the client’s organization. We do not just “lawyer” or “paper” a deal. As a rule, our clients rely on us to provide advice and counsel beyond the scope of conventional legal matters and often call upon us to evaluate or resolve underwriting assumptions and all manner of issues, including those related to feasibility, program design, social service components, operation and compatibility, as well as other “business” concerns.

As counsel to lenders, owners and agencies, our attorneys have been involved with public-sector entities, including local governments, special purpose authorities and nonprofit developers. When necessary, we have instituted or responded to litigation in federal and state administrative, trial and appellate courts.

In addition to providing analysis of applicable federal laws and regulations and evaluating and utilizing state and local financing support and applicable requirements, we provide advice regarding the operation of public housing projects and other low-rent housing programs, and mixed finance structured development activities. We have counseled owners, lenders and purchasers with respect to the Low Income Housing Tax Credit, HUD's Rental Assistance Demonstration Program (RAD), the TCAP & Exchange programs and Green Retrofitting, HUD multifamily loan and property sales, partial payment of insurance claims, as well as in HUD’s Section 236 decoupling, Section 202 prepayment, LEAN financing, Mark-to-Market and Mark-up-to-Market programs, and its 2530 previous participation process, REAC Enforcement Center, and APPS requirements. We have handled scores of Transfer of Physical Assets (TPAs), represented public housing authorities in capital fund securitizations and have undertaken such diverse tasks as reviewing and revising required federal eviction procedures and leases, and assisting in obtaining special purpose federal grants, ranging from assistance with New Markets Tax Credit and Enterprise Zone applications to preparation of proposals for special rehabilitation grants. Our attorneys have helped prevent threatened HUD litigation to take over local government programs and activities, and have represented developers, managers and lenders in HUD debarment and Justice Department criminal proceedings.

We have assisted in disputing various Inspector General audit findings against housing authorities, local governments and developers, restructured and interpreted HUD-FHA insured and Section 202 loans and Elderly Direct Loans, Community Development, Urban Development Action Grants (UDAGs) and Housing Opportunity Development Action Grants (HODAGs), and helped prevent attempts by HUD to terminate or recapture such grants. We have been successful in obtaining the benefits of HUD’s LIHPRHA and ELIHPRHA programs for our clients and in restructuring these projects through subsequent sales and the Low Income Housing Tax Credit program.

Low-Income Housing Tax Credit (LIHTC) Development

Since its enactment in 1986, our attorneys have concentrated in Low-Income Housing Tax Credit (LIHTC) development by representing both profit-motivated and nonprofit developers of low-income housing, as well as syndicators, equity investors and lenders. This nationwide practice uses the tax credits under Section 42 of the Internal Revenue Code by preparing credit applications; drafting and negotiating acquisition and partnership agreements, offering memoranda, financing documents, and construction and investment agreements; and rendering opinions with respect to all aspects of the development process.

We were active in the lobbying efforts at the federal level that led first to the enactment, and then to the permanent extension, of the LIHTC. Our attorneys closed some of the first LIHTC deals in 1987 and obtained some of the earliest waivers from the IRS as they affected property acquired from the Resolution Trust Corporation and HUD. Today, we continue to assist our clients with ongoing compliance, monitoring and certification requirements at both the state and federal levels, and are particularly experienced in transactions involving layering of financing sources.

Most recently, we have been involved in tax credit development by private developers, banks and public housing and nonprofit organizations meeting their community development goals by obtaining private investment through the LIHTC program. We have represented such groups in nearly every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands.

Our services for nonprofit developers go beyond what is generally required by more experienced private developers and are akin to those required by public housing authorities. Our attorneys actively participate not only in the application process, construction, investment and agreement drafting, but also help negotiate the terms of financing and partnership arrangements. Our attention to these “business terms” requires a sensitivity to the special circumstances and mandates of charitable and public organizations and their communities. Our judgments on matters of commercial practicability and acceptability are often required when large, financially dominant for-profit investors confront public agencies or less sophisticated nonprofits. We maintain our awareness of the evolving standards of the IRS concerning for-profit/nonprofit partnerships and HUD guidelines governing private/public partnerships for mixed finance development.

Dispute Resolution, Partial Payments of Claims, Prepayment Lockouts, 2530 Clearance, REAC, the Inspector General and APPS

In the last few years, difficult multifamily markets in many areas of the country and the benefit of lower interest rates have increased the need for advice concerning prepayment overrides for FHA mortgage loans (usually backed by GNMA securities) still within their prepayment lockout period to lenders, investment bankers and owners, as well as the need to work with HUD to restructure loans and facilitate partial payments of insurance claims. We also are engaged frequently to accomplish prepayment authorization and to resolve 2530 difficulties of owners and managers as a result of mortgage defaults (and REAC-triggered flags), suspensions and debarments. Often, the repositioning plan of a troubled project involves a refinancing at lower rates to allow for solvent operations. HUD is concerned that owners with projects that are not truly troubled will instigate defaults to obtain HUD approval of the lockout override. Whether justified or not, the result is that the project owner, manager, lender and other key participants can encounter problems with future 2530 clearance.

Our experience in assisting in resolving “flags” and 2530 issues is extensive. More recently, as HUD has implemented its Active Partners Performance System (APPS), we have helped our clients develop and maintain their APPS submissions.

Our HUD dispute resolution team helps clients work through Inspector General Audits, REAC and other enforcement difficulties, including from the U.S. Department of Justice. The growing amount of this activity now requires early and direct action to prevent otherwise consistent and strong portfolio developments and operations from being waylaid by economic, management or administrative difficulties at a single project.

Public Housing

The firm’s affordable housing attorneys have been involved in the early efforts to implement the Rental Assistance Demonstration Program (RAD), represented housing and redevelopment authorities throughout the country, including the redevelopment authorities of Philadelphia, Pittsburgh, Kansas City and Houston, as well as other housing authorities including: Augusta, Georgia; Aurora, Colorado; Allegheny, Beaver, Butler and Delaware counties, Pennsylvania; Baltimore, Maryland; Benton Harbor, Michigan; Camden and Atlantic City, New Jersey; Huntington, West Virginia; Newport, Kentucky; McKeesport, Philadelphia and Pittsburgh, Pennsylvania; Tucson, Arizona; Utica, New York; Wayne County, Michigan; Wilmington, Delaware; the U.S. Virgin Islands and others in their planning and structuring of development, financing, energy retrofitting, and use of capital funding, including the use of funds related to ARRA and other services. We have advised public agencies on the purchase, sale, operation or rehabilitation of multifamily housing properties and mixed finance developments. We have been engaged to provide services in connection with environmental matters, public sector procurement, real estate and development of real property, and statutory and regulatory compliance. We have provided counsel to public agencies in connection with the preparation of bid packages and the handling of bid disputes, negotiation of pre-development and development agreements including family self-sufficiency components, drafting forms of contract for construction management and service contracting, handling the full range of contractor and design professional claims, and litigating, arbitrating or resolving by alternative dispute resolution procedures claims arising from defective design or construction. We have counseled a number of housing authorities on securitizing their capital grant funds with tax-exempt bonds and are thoroughly familiar with project-based vouchers and the moderate rehabilitation program.

For example, for almost five years, we were engaged by the Housing Authority of the City of Camden, New Jersey. In Camden, members of our group assisted the authority in its operational and financial reengineering, and in its efforts to rehabilitate public-owned housing stock and to offer tenants home ownership opportunities. Pepper provided counsel with regard to compliance and contracting under an existing HOPE VI grant. Our attorneys also advised regarding its HOPE I and Turnkey III programs. Additionally, the firm acted as the authority’s general outside counsel, reviewing and prosecuting all litigation and pre-litigation issues with which the authority became involved, including disputes between the authority and contractors or subcontractors; employee matters, such as labor union negotiations and employee dismissals; and procurement-related issues.

We also have provided services in connection with HOPE VI development projects of the Housing Authorities of the cities of Philadelphia; Wilmington, Delaware; Benton Harbor, Michigan; Utica, New York; and the U.S. Virgin Islands, where we have negotiated and drafted development agreements; reviewed regulatory and programmatic requirements; and assisted in program design, organizational structure planning and implementation, construction and contracting matters, and program documentation, and have provided counsel in procurement and contracting disputes.

Nonprofit Organizations

Increasingly, federal, state and local housing agencies, including HUD, have shifted their housing assistance programs to public and nonprofit agencies. Pepper is a leader in this field. A few of the nonprofit housing entities for which we have worked include affiliates of the Christian Relief Services Charities, Inc., the National Housing Trust, National Church Residences and Volunteers of America. We closed one of, if not the first, resyndication of a HUD-financed Section 202 project with Low Income Housing Tax Credits and continue to be a leader in refinancing and restructuring Section 202 properties.

Through these relationships, as well as through our profit-motivated developer experience, we have developed a broad practice in affordable housing, including housing management, rehabilitation, development and financing. Our nonprofit clients have recently acquired properties in states including: Arizona, Arkansas, California, Colorado, Florida, Kansas, Louisiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Texas, Virginia, and Puerto Rico. Financing sources used include Section 8, Fannie Mae, tax-exempt bonds, private credit enhancement, HUD and state housing agency insurance, the Federal Home Loan Bank Affordable Housing program and unrated bonds.

Pepper lawyers have been integrally involved in the structure and formation of partnerships and limited liability companies used by exempt organizations as acquisition vehicles, as well as investment partnerships formed with exempt partners. Sophisticated income, estate and gift tax planning for closely held corporations, their executives and their owners, including issues associated with Subchapter S and limited liability companies, partnerships, and private foundations, are presented by numerous clients.

In addition to our housing clients, we are counsel to a myriad of tax-exempt institutions, such as hospitals and universities, in connection with their real estate ownership, labor issues and charitable giving programs, including endowment funds, outright and restricted gifts, charitable remainder trusts and charitable lead trusts. We routinely establish Section 501(c)(3) organizations for individuals and corporate entities, and provide a full range of services, including the formation of the entity, the submission of a ruling to the Internal Revenue Service to confirm the tax-exempt status of the entity, the registration under any applicable state charitable solicitation act statutes and sales tax exemption, and the filing of federal income tax returns (Forms 990 and 990-PF) for such entities. We provide advice to enable a charitable organization to qualify as a public charity rather than as a private foundation, which often requires a detailed scrutiny of the organization’s sources of support and relationships with other charitable organizations that it may “support” under the tax laws. We provide advice in areas such as permitted lobbying activities and the applicability of the private foundation excise taxes. We have established and received IRS private letter rulings for schools, civic organizations, business leagues, community charitable programs, and other federal and local community service organizations. We also have established scholarship programs for private foundations maintained by private corporations for their employees’ children.

New Markets Tax Credit Development

Our work with developers, owners, lenders, investors, bond issuers and GSEs, as well as HUD, the IRS and state and local community development agencies has inevitably and naturally led to our involvement with the New Markets Tax Credit (NMTC). We are commonly engaged as a development team member to assist in structuring, negotiating and closing NMTC projects, with and without housing components, using multiple layers of private and public funding sources. Our engagements have included advice to financial institutions in applications for NMTC allocation and leveraging of community investment funds; and we have worked with Community Development Entities (CDEs) and developers in their evaluation of projects and transaction modeling.

Most recently, we have been involved in assisting in the design of innovative Qualified Low Income Community Businesses (QUALICB) and operational models with large affordable housing components.

As an example, we recently concluded an engagement as borrower/developer counsel to a large nonprofit in its $9.7 million redevelopment of a multifamily and commercial space. The project was developed with an allocation of NMTC providing support/leverage for various debt and equity sources, including: (i) $3.4 million of local government Trust Funds and $600,000 from other sponsor and local funds aggregated through a nonprofit-controlled special purpose entity (SPE) and loaned to the upper tier NMTC investment entity, and (ii) $5.7 million in additional loan and equity proceeds from a NMTC investor combined with the SPE funding sources for a Community Development Entity (CDE) below-market loan to the nonprofit affiliate. This transaction also required qualifying the use/lease of commercial space by a child care provider and prefunding a commercial rental reserve to ensure future satisfaction of NMTC’s non-residential income requirements.

Public and Structured Finance

We represent real estate developers (profit and nonprofit), underwriters, brokers, management companies, government agencies and special purpose issuers on a variety of issues relating to financing real estate transactions. This work includes both debt and equity financing and the structuring of investments, tax-driven limited partnerships and mortgage-backed securities transactions. Our experience and depth is well known in the housing industry and among major investment and commercial banking houses.

Pepper is a nationally recognized and “Red Book”-listed bond counsel firm with more than 40 years of public finance experience. The firm’s public finance lawyers act as bond counsel or as issuer’s counsel, underwriter’s counsel, credit bank counsel, trustee’s counsel, tax counsel or borrower’s counsel with respect to public offerings or private placements of securities issued to finance or refinance capital improvement projects, including housing and industrial projects, hospitals and universities, for governmental entities, nonprofit corporations, and commercial and industrial enterprises.

A significant element of nearly all such securities offerings is qualifying the interest on the obligations for the exemption from federal income tax available for obligations issued by state and local governmental entities.

For many of our clients, our work includes involvement in the legislative process; we regularly deal with housing, banking and tax issues before Congress and the executive branch.

Multifamily Lending

Our attorneys have experience representing lenders in conventional apartment and commercial property mortgage financing transactions; and the multifamily, nursing, health care and seniors’ housing programs of conduits, Fannie Mae, Freddie Mac and HUD including LEAN. Our services include the documentation and closing of loans secured by projects throughout the country and advising lender clients of rights and remedies flowing from the origination, sale, pooling, securitization and servicing of multifamily and commercial mortgage loans. We were pioneers in working with shared appreciation and risk share programs and helped develop warehouse lending programs for banks providing short-term financing for mortgage lenders to address the gap between the disbursement of loan proceeds at closing and the purchase of the loans by Fannie Mae or Freddie Mac or the sale of mortgage-backed securities to investors.

Our success has required an awareness and a practical application of the subtleties of the various lending programs under which the loans were made, in addition to variations dictated by the peculiarities of individual jurisdictions such as Mortgage Consolidations (New York, Maryland and Florida), Texas Title Requirements and Illinois Land Trusts.

With specific reference to the programs of Fannie Mae, Freddie Mac and HUD, our lender representations include, as necessary, legal support at all levels of the loan closing process, from drafting the loan commitment to delivering loan servicing binders. This requires active coordination with the lender client, borrower’s counsel, lender’s warehouse bank and the legal staffs of Fannie Mae, Freddie Mac or HUD. Our services also are engaged regularly in connection with case-specific issue resolution matters to be addressed with the secondary mortgage market and HUD staff.

Pepper attorneys have closed, on a nationwide basis, billions of dollars in multifamily and commercial loans. The core goal is to take whatever steps are necessary to assure a smooth, event-free and uninteresting closing. We proceed on the theory that a loan closing is a celebration of the end of a frequently arduous process. This approach serves the dual business interests of the lender by freeing underwriting and origination staff to handle new business and by leaving the borrower with a positive impression of the lender. To this end, we consciously work to resolve all issues in advance of the closing; endeavor to remain accessible to all parties; prepare all closing documents; develop settlement sheets; physically attend closings (as dictated by the program or the context); package and deliver in a timely manner complete loan delivery packages to HUD, Fannie Mae, Freddie Mac or Ginnie Mae standards, and forward fully indexed servicing binders to the lender and courtesy copies of loan dockets to the borrower and its counsel.

Senior Housing and Assisted Living

Pepper furnishes complete legal services to the rapidly growing real estate sector of senior housing and assisted living, including HUD- and GNMA-insured construction and permanent financing of housing; independent-living and assisted-living facilities; skilled nursing homes; hospitals; and HUD Section 202 properties. Clients include lenders, REITS, developers and operators. We provide basic business and tax planning, corporate articles and bylaws, joint venture agreements and applications for IRS tax exemption, including clarification of relationships between for-profit and non-profit partners. In conjunction with Pepper’s Health Care Services practice, we also represent hospitals, health maintenance organizations, clinics, physician groups, insurance companies and investment funds that provide funding for new assisted-living and health care ventures. We also have litigated complex insurance and reinsurance issues and counseled clients on relevant state laws and regulations, including Medicaid.

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