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November 9, 2011: Low Income Housing Tax Credit Preservation Victory in State Appeals Court

On October 26, the Oregon Court of Appeals issued a major decision affecting the preservation of Low-Income Housing Tax Credit developments. In Nordbye v. BRCP/GM Ellington, the court ruled that tenants have the right to enforce restrictive covenants that, among other things, do not allow a state credit allocation agency to terminate a property from the program for an owner’s noncompliance.

The LIHTC program is the primary vehicle for affordable housing production in the country. By terminating the property for noncompliance, the state agency had allowed the owner to receive millions in tax credits and profits from an unregulated sale without having to continue to provide affordable housing at restricted rents as required by the Use Agreement.

The court recognized that nothing in the federal law allows termination and release for noncompliance and that the state agency’s interpretation of federal law is not entitled to deference. The court further held that any tenants can enforce the use restrictions under federal law and their express terms.

The tenant was represented by Ed Johnson of Oregon Law Center and private attorneys, Alice Warner and Micky Ryan. NHLP filed an amicus brief in the case, which the court acknowledged in its ruling.

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