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Over-Income Policy for Public Housing

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.


See below for frequently asked questions.


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:

    1. Section 9 households who have already been over-income for 24 or more consecutive months as of June 2023; and
    2. Section 9 households who are not yet over-income and may eventually remain over-income for 24 consecutive months going forward.

Residents who are already over-income for 24 consecutive months as of June 2023:

    • In accordance with HUD’s 2019 notice, these households will receive a second notice informing them that they must sign the new non-public housing over-income lease and pay the higher non-public housing rent, if they want to remain at NYCHA. The new non-public housing over-income lease will be included with the second notice to the over-income households.
    • If the new non-public housing over-income lease is not signed and returned to NYCHA within 60 days from the date of the second notice, NYCHA must terminate the tenancy within six months of the second notice, pursuant to HUD’s rules.
    • The notice provides these over-income tenants with an opportunity to dispute NYCHA’s rent calculation. They can do this by contacting their property management office or through the NYCHA Self-Service portal.
    • Per HUD’s February 2023 final rule, NYCHA Section 9 households who have been over-income for 24 consecutive months since 2019, are not entitled to another 24 consecutive month grace period.

Residents who are not yet over-income for 24 consecutive months as of June 2023:

    • Upon the first recertification showing the household is over-income, NYCHA would send the first notice informing the household that they are over-income and if they remain over income for 24 consecutive months, they will no longer be eligible for Section 9 assistance.
    • If still over-income after 12 months, the second notice is issued; at 24 months, the third notice is issued. All three notices provide the household with an opportunity to be heard (rent grievance).
    • The third notice informs the household that they have been over-income for 24 consecutive months and must sign the new non-public housing lease within 60 days. The over-income household would have to pay the alternative non-public housing rent, or, if the tenant rejects the new non-public housing lease, NYCHA must terminate the lease within six months from the date of the third notice.
    • Residents must recertify on an annual basis. When the household recertifies NYCHA will automatically review income against the current Area Median Income (AMI) tables to determine whether the household is still over the income threshold or whether, due to inflation or other changes, the household is no longer over the income threshold.
    • If, at any time, the household composition or household income changes, tenants must report the change to NYCHA immediately, whether or not  the household is over-income.

Residents who accept the new non-public housing lease:

    • NYCHA will have a separate “non-public housing” lease for over-income tenants who accept the lease.
    • Pursuant to HUD’s rules, the following policies apply to the non-public housing lease:
      • Non-public housing over-income households will be charged an Alternative Non-Public Housing Rent (fair market rent). The chart at the bottom of the webpage on this link details the fair market rents currently in effect for each apartment size.
      • Non-public housing over-income households cannot participate in Section 3 hiring/training or resident councils.
      • Non-public housing over-income households will not receive a subsidy or utility allowance.
      • Non-public housing over-income households must complete an annual household composition survey but will not be entitled to an annual or interim recertification process.
      • NYCHA has chosen to continue to offer transfer rights and succession rights to non-public housing over-income tenants.


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?
A6:

    • Grievances: NPHOI tenants will be able to initiate grievances related to apartment succession rights, denials of reasonable accommodation or denials of attempted addition of a member to the household. The grievance process for NPHOI tenants will adhere to the same procedures as grievances for Section 9 tenants, including a hearing before an impartial hearing officer if requested. As discussed in more detail in FAQ #4 above, over-income households may grieve their over income status during the grace period as a Section 9 resident. However, after the 24 consecutive month grace period ends and the new non-public housing over-income lease is signed, the rent will be set according to HUD’s fair market rent and a rent grievance will not be available to NPHOI tenants. 
    • Annual and Interim Recertifications: Per HUD, NPHOI tenants will not file interim or annual recertifications after they have signed their new non-public housing over-income lease. Instead, NYCHA will require the NPHOI tenants to complete a household composition survey annually. Their rent will be set using HUD’s fair market rent calculations.
    • What if my income or household composition as a NPHOI tenant changes? NYCHA cannot adjust the rent for NPHOI tenants. The rent is set using HUD’s fair market rent calculations.
    • Transfers? Reasonable Accommodations?: NPHOI tenants may still initiate a request for a transfer to a different apartment for reasons related to changes in household size or pursuant to a reasonable accommodation request, by visiting their property management office or using the Self-Service portal to fill out a “Non-Public Housing Over-Income Tenant Transfer Request” form. Requests will be processed on the same terms as requests made by Section 9 tenants.
    • Self Service Portal? Work Orders?: NPHOI tenants will still have access to the Self-Service Portal and they will still have access to the Customer Contact Center (CCC), and the MyNYCHApp, to create work order tickets for their apartment.
    • Lease Renewals?: NYCHA will issue a new non-public housing over income lease each year for NPHOI tenants, reflecting the new fair market rent that the resident will need to pay. The NPHOI tenant will need to accept a lease renewal by signing the new lease.


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.