2. Unclear Protocol For Audits And Non-Compliance
We are asking the BPDA to (A) create a standard on how audits are done (such as requesting specific information to satisfy suspicion and/or remediate non-compliance, giving specific status decisions on households, sharing results/updates with the property and third part consultants) and (B) provide more definitive standards and penalties for non-compliance.
Peter and Mary just recently told us that the new process going forward will be to have a conference after the audit with a property representative and a member of the third-party compliance team (like SEB Housing, if applicable). We think this is a GREAT idea, and covers some of our concerns in this section, but as I wrote some of this prior to our call, I figured I’d keep the framework in place.
We believe we have historically had a good working relationship with the BPDA and BFHC founded upon the shared goals of facilitating Boston’s IDP program so that deserving households may find housing at affordable prices within the City. I hope the BPDA and BFHC realize that we bring all of these issues to you in the hopes of improving and refining the programs and processes involved in getting the households in need of this housing into units in a fair, efficient, and transparent way. We take our work very seriously, have a lot of experience in this field, and work very closely with DHCD, MassHousing, MHP and the City of Somerville on their programs. The relationships we have cultivated with those different agencies are based on mutual respect, and they understand that properties are better off having us involved and overseeing/helping with the affordable housing program. As such, when issues come up, they ask us directly, or include us in discussing the issues. We would like to request the same of the BPDA. This process will be much easier if the BPDA recognizes that the property and their third-party consultants work together on these issues and coordinate their responses back to the BPDA (and it sounds like this will be done going forward).
Often times the remediation that the BPDA suggests for a file is unclear and whether a household can continue to stay in a unit isn’t always clearly explained, and so the properties (and SEB Housing) don’t know if the household should be given a Notice To Quit/Vacate, or if they should be asked to provide more documentation, or some other step. Comments such as “you need to speak to your attorney about that file” or “there is nothing else that (Consultant Group) can do” or “we still think there may be another occupant living in the unit” are unclear and do not bring the case closer to resolution.
(A) Create A Standard For Audits
-Always request specific information to satisfy suspicion and/or remediate non-compliance
-Always give specific status decisions on households
-Always share results/updates with the property and third part consultants
We were recently involved in a compliance remediation of Bell Olmsted Park, which had fallen out of compliance (during a period when we were not retained at the property). The process and directives were clear and sent directly to us, and this allowed for a faster remediation process and we would be thrilled if the standard was closer to that. As discussed below, in recent audits of other properties, the BPDA process and directives have been much less clear than they were for Bell Olmsted Park.
For example, during some recent audits, it’s become clear that the BPDA is doing deeper reviews into who is physically occupying an IDP unit through reviews of a tenant’s social media postings and record searches using tools not available to private entities. In consequence, the BPDA has been finding an increasing number of households ineligible based on statements or posts made on social media websites such as Facebook. We and the properties we work with have no idea what standards should be used to verify social media claims made by tenants, what amount of review of social media is permissible, or what sort of information shared on social media necessitates further documentation from the tenants. Accordingly, it seems that standards governing how a property must verify who is or isn’t living in a unit (including reviews of social media) and the documentation that must be provided to either prove non-compliance or alleviate such concerns must be put into place by the BPDA. Or, at the very least, how apparent tenancy violations (that the BPDA discovers through social media and public record searches) are handed off to the property manager, and how the property manager or their attorneys can or cannot enforce the conditions of the lease agreement based on the information provided by the BPDA, needs to be explored and better understood so that the path to remediation is clear.
Similarly, the BPDA needs to provide more decisive status updates when reviewing files during an audit. A property does not have clear guidance on what action to take if the BPDA provides a non-definitive response in their review of a household for eligibility (such as “if the tenant wants to stay in the unit they need to prove beyond doubt that the other household member we tracked through social media is living elsewhere”, or “we think they may have a guarantor but they can submit more bank statements”). If there is documentation that needs to be provided to satisfy the BPDA’s review, then that documentation needs to be clearly specified, rather than hinted at (like it sometimes is). If a tenant is ineligible, so be it, the property just needs that determination made in writing so they can take the appropriate action on their end. If a household needs to provide additional bank statements because the BPDA states that they are ineligible because they have a “guarantor”, that at least allows the property to convey that information to the tenant and also impose a deadline by which they must submit updated documentation or their ineligible status will remain, and the appropriate action can then be taken at the end of that deadline. But without such clear directives, both applicants and properties are left confused, anxious, and the process cannot conclude in a timely manner.
We would also request that the BPDA simultaneously share the status of a tenant with both the property and their consultants (provided the property gives the BPDA permission). It should not be the BPDA’s job to coordinate who at each property is responsible for each file, or each issue in a file (such as missing asset documentation versus residency verification documentation). If the BPDA can simply include both the property and their consultant in their status updates, the property and their consultant can more easily coordinate the actions necessary to remediate the issue, and provide more concise and comprehensive responses to the issue. This should also greatly reduce the amount of time the BPDA deals with the back-and-forth with properties and their consultants during an audit.
(B) Provide more definitive standards, degrees and penalties for non-compliance.
We feel that there are a number of instances surrounding a property’s compliance with its obligations that would benefit from further clarification. For example, it is unclear if (or why) when a property has a tenant who is ineligible for a unit but hasn’t moved out but HAS been given a Notice To Quit/Vacate, if the property is considered “out of compliance.” There doesn’t seem to be any standard, which can be problematic, particularly when properties are in the process of being sold, or if penalties are going to be imposed.
Moreover, we fully recognize that there should be penalties for non-compliance, but there does not seem to be a fair or consistent standard. The penalty of not approving any files for new move-ins (or not allowing a property to utilize the annual rent increases) while a property is non-compliant is a good incentive to maintain compliance but it would seem unfair to impose this on a property if they have a handful of tenants, out of dozens in total, who might not be in compliance because of issues that are only known to the BPDA (such as items that might come up in public record searches, or BPDA’s decisions based on social media postings, and BPDA judgment calls on guarantors). Such non-compliance would be materially different than the non-compliance of a property who hasn’t made any efforts to do any recertification work for the large majority of their BPDA tenants (which we know is the case for a lot of properties).