As required by the U.S. Department of Housing and Urban Development (HUD), a household whose income exceeds the over-income limit, which is 120% of the Area Median Income (AMI), must be considered “over-income” by NYCHA for the Section 9 program. As discussed further below, if a household remains over-income for 24 consecutive months, NYCHA is required by HUD to have the household sign a new non-public housing over-income lease and the household will have to pay the alternative non-public housing rent, which in New York City is the Fair Market Rent set annually by HUD. After the non-public housing over-income lease is signed, the non-public housing over-income (NPHOI) tenancy begins.
Q1. What is HOTMA? Why does NYCHA have an Over-Income Policy?
A1: In July 2016, the Housing Opportunities Through Modernization Act (HOTMA) was signed by President Obama. HOTMA amends the U.S. Housing Act of 1937, including the Section 8 and Section 9 (also known as Public Housing) programs. Among other things, HOTMA made changes to the over-income rules in Section 9. In February 2023, HUD issued final regulations regarding the over-income rules pursuant to HOTMA.
Q2. What sections of HOTMA did HUD’s February 2023 final rule address?
A2: In February 2023, HUD issued the final rule implementing sections 102, 103, and 104 of HOTMA. Section 102 changes requirements related to income reviews and calculations of income in the Section 8 and Section 9 programs. Section 103 relates to changes to over-income rules in Section 9. Section 104 sets limits on the assets of families in the Section 8 assisted housing and the Section 9 program. HUD’s 2023 final rule regarding the over-income policy was effective March 16, 2023, with full implementation of the over-income regulations (Section 103) required by June 14, 2023. Section 102 and Section 104 are effective January 1, 2024.
For more information on HOTMA
Q3. What is HUD’s definition of an “over-income” family or household in Section 9?
A3: As required by HUD, a household whose income exceeds the over-income limit, which is 120% of the Area Median Income (AMI), must be considered “over-income” by NYCHA for the Section 9 program. If a household remains over-income for 24 consecutive months, NYCHA is required by HUD to have the household sign a new non-public housing over-income lease and the household will have to pay the alternative non-public housing rent, which in New York City is the Fair Market Rent (FMR) set annually by HUD.
For New York City’s AMI and the FMR amounts, visit: Pay Rent.
Q4. What is NYCHA’s Section 9 over-income policy?
A4: In July 2018, HUD issued instructions for implementing the mandatory public housing income limit requirements in HOTMA. In accordance with these instructions NYCHA adopted a policy to allow overincome households to remain at NYCHA. NYCHA also began notifying over-income households per HUD’s 2019 notice. However, HUD delayed publishing the final regulations regarding over-income rules until February 2023. HUD’s final rule on HOTMA published in February 2023 provided public housing agencies (PHAs) with additional information about how to process over-income households, including the requirement to issue a new non-public housing over-income lease. Therefore, households that have been over-income for 24 consecutive months may remain at NYCHA after agreeing to sign a new non-public housing over-income lease and pay the non-public housing rent, which in New York City is the Fair Market Rent (FMR), as determined annually by HUD. If over-income households refuse to sign the new non-public housing over-income lease, per HUD, NYCHA must terminate their tenancy within six months.
NYCHA’s over-income policies govern:
Residents who are already over-income for 24 consecutive months as of June 2023:
Residents who are not yet over-income for 24 consecutive months as of June 2023:
Residents who accept the new non-public housing lease:
Q5. How is the new rent for the non-public housing over-income tenants calculated?
A5: HUD requires that NYCHA charge an “alternative non-public housing rent” that is equal to the greater of (i) the applicable fair market rent or (ii) the amount of the monthly subsidy provided for the unit. In New York City, the fair market rent is greater than the amount of the monthly subsidy for the unit. Fair market rents are calculated and set by HUD each fiscal year and are published on HUD’s website. Fair market rents are provided for each area and for each apartment size. NYCHA does not have discretion to adjust fair market rents and must use HUD’s calculation.
Q6. How does a non-public housing over-income (NPHOI) tenancy differ from a Section 9 tenancy?
Q7. What is NYCHA’s notification process for tenants of an over-income household?
A7: As discussed in more detail in FAQ #4, residents who are over-income will receive notices stating that they are over-income based on the annual or interim recertifications that was completed.
Q8. Who can Section 9 tenants contact to discuss their concerns about being an over-income household?
A8: If a tenant does not agree with the result of their annual or interim recertification which indicated they are over-income, they should submit a rent grievance within 30 days from the date of the notice via the NYCHA Self-Service portal or by visiting their property management office.
Q9. What happens when the Section 9 tenant’s income changes and is no longer “over-income” even after receiving a notification from NYCHA?
A9: During the 24-month grace period, if the household composition or household income changes, tenants must report the change to NYCHA immediately. If the tenant notifies NYCHA of their change in income and NYCHA determines that the tenant now falls below the over-income threshold, a new 24-month grace period would begin and the tenant would remain a Section 9 tenant. After the 24-month grace period ends and the tenant receives their third notice, NYCHA will not conduct an interim recertification. If the resident believes their most recent income calculation was incorrect, the resident should submit a rent grievance within 30 days from the date of the third notice via the NYCHA Self-Service portal or by visiting their property management office.
As discussed in more detail in FAQ #6, NPHOI tenants will not submit interim or annual recertifications because their fair market rent is set annually by HUD.
Q10. What happens if an over-income resident refuses to sign the lease after 24 consecutive months?
A10: HUD requires that NYCHA must terminate the tenancy of any over income resident who refuses to sign the non-public housing lease within six months of the third notice.
Q11. What happens to the unit once an over-income tenant has vacated the apartment? How does NYCHA prioritize who gets to reside in the unit?
A11: Once a unit has been vacated by an over-income tenant, the unit will return to the Public Housing portfolio and a new prospective tenant will be matched with the apartment using NYCHA’s Tenant Selection and Assignment Plan (TSAP). TSAP was designed to ensure NYCHA processes all housing applications and transfer requests in a fair, objective, and non-discriminatory manner in accordance with applicable federal, state, and city fair housing laws. More information on the general TSAP process can be found here.