SB-1124, As Passed House, September 19, 2012

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 1124

A bill to amend 1966 PA 346, entitled

"State housing development authority act of 1966,"

by amending section 22 (MCL 125.1422), as amended by 2008 PA 449.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 22. The authority ~~shall possess~~ possesses all powers

necessary or convenient to carry out this act, including the

following powers in addition to other powers granted by other

provisions of this act:

(a) To sue and to be sued; to have a seal and to alter the

seal at pleasure; to have perpetual succession; to make and execute

contracts and other instruments necessary or convenient to the

exercise of the powers of the authority; and to make, amend, and

repeal bylaws and rules.

(b) To undertake and carry out studies and analyses of housing

needs within this state and ways of meeting those needs, including

data with respect to population and family groups, the distribution

of population and family groups according to income, and the amount

and quality of available housing and its distribution according to

rentals and sales prices, employment, wages, and other factors

affecting housing needs and the meeting of housing needs; to make

the results of those studies and analyses available to the public

and the housing and supply industries; and to engage in research

and disseminate information on housing.

financial assistance.

(d) To survey and investigate housing conditions and needs,

both urban and rural, throughout this state and make

recommendations to the governor and the legislature regarding

legislation and other measures necessary or advisable to alleviate

any existing housing shortage in this state.

(e) To establish and collect fees and charges in connection

with the sale of the authority's publications and the authority's

loans, commitments, and servicing, including, but not limited to,

the reimbursement of costs of financing by the authority, service

charges, and insurance premiums as the authority determines to be

reasonable and as approved by the authority. Fees and charges shall

be determined by the authority and shall not be considered to be

interest. The authority may use any accumulated fees and charges

and interest income for achieving any of the corporate purposes of

the authority, to the extent that the fees, charges, and interest

income are not pledged to the repayment of bonds and notes of the

authority or the interest on those bonds and notes.

(f) To encourage community organizations to assist in

initiating housing projects as provided in this act.

(g) To encourage the salvage of all possible usable housing

scheduled for demolition because of highway, school, urban renewal,

or other programs by seeking authority for the sponsors of the

programs to use funds provided for the demolition of the buildings,

to be allocated to those sponsors approved by the authority to

defray moving and rehabilitation costs of the buildings.

(h) To engage and encourage research in, and to formulate

demonstration projects to develop, new and better techniques and

methods for increasing the supply of housing for persons eligible

for assistance as provided in this act; and to provide technical

assistance in the development of housing projects and in the

development of programs to improve the quality of life for all the

people of this state.

(i) To make or purchase loans, including loans for condominium

units as defined in section 4 of the condominium act, 1978 PA 59,

MCL 559.104, and including loans to mortgage lenders, which are

unsecured or the repayments of which are secured by mortgages,

security interests, or other forms of security; to purchase and

enter into commitments for the purchase of securities, certificates

of deposits, time deposits, or mortgage loans from mortgage

lenders; to participate in the making or purchasing of unsecured or

secured loans and undertake commitments to make or purchase

unsecured or secured loans; to sell mortgages, security interests,

notes, and other instruments or obligations evidencing or securing

loans, including certificates evidencing interests in 1 or more

loans, at public or private sale; in connection with the sale of an

instrument or obligation evidencing or securing 1 or more loans, to

service, guarantee payment on, or repurchase the instrument or

obligation, whether or not it is in default; to modify or alter

mortgages and security interests; to foreclose on any mortgage,

security interest, or other form of security; to finance housing

units; to commence an action to protect or enforce a right

conferred upon the authority by law, mortgage, security agreement,

contract, or other agreement; to bid for and purchase property that

was the subject of the mortgage, security interest, or other form

of security, at a foreclosure or at any other sale, and to acquire

or take possession of the property. Upon acquiring or taking

possession of the property, the authority may complete, administer,

and pay the principal and interest of obligations incurred in

connection with the property, and may dispose of and otherwise deal

with the property in any manner necessary or desirable to protect

the interests of the authority in the property. If the authority or

an entity that provides mortgage insurance to the authority

acquires property upon the default of a borrower, the authority may

make a mortgage loan to a subsequent purchaser of that property

even if the purchaser does not meet otherwise applicable income

limitations and purchase price limits.

(j) To set standards for housing projects that receive loans

under this act and to provide for inspections to determine

compliance with those standards. The standards for construction and

rehabilitation of mobile homes, mobile home parks, and mobile home

condominium projects shall be established jointly by the authority

and the mobile home commission, created in section 3 of the mobile

home commission act, 1987 PA 96, MCL ~~125.2301 to 125.2349~~ 125.2303.

However, financing standards shall be established solely by the

authority.

(k) To accept gifts, grants, loans, appropriations, or other

aid from the federal, state, or local government, from a

subdivision, agency, or instrumentality of a federal, state, or

local government, or from a person, corporation, firm, or other

organization.

(l) To acquire or contract to acquire from a person, firm,

corporation, municipality, or federal or state agency, by grant,

purchase, or otherwise, leaseholds or real or personal property, or

any interest in a leasehold or real or personal property; to own,

hold, clear, improve, and rehabilitate and to sell, assign,

exchange, transfer, convey, lease, mortgage, or otherwise dispose

of or encumber any interest in a leasehold or real or personal

property. This act shall not impede the operation and effect of

local zoning, building, and housing ordinances, ordinances relating

to subdivision control, land development, or fire prevention, or

other ordinances having to do with housing or the development of

housing.

(m) To procure insurance against any loss in connection with

the property and other assets of the authority.

(n) To invest, at the discretion of the authority, funds held

in reserve or sinking funds, or money not required for immediate

use or disbursement, in obligations of this state or of the United

States, in obligations the principal and interest of which are

guaranteed by this state or the United States, or in other

obligations as may be approved by the state treasurer.

(o) To promulgate rules necessary to carry out the purposes of

this act and to exercise the powers expressly granted in this act

~~in accordance with~~ pursuant to the administrative procedures act of

1969, 1969 PA 306, MCL 24.201 to 24.328.

(p) To enter into agreements with nonprofit housing

corporations, consumer housing cooperatives, limited dividend

housing corporations, mobile home park corporations, and mobile

home park associations that provide for regulation by the authority

of the planning, development, and management of any housing project

undertaken by nonprofit housing corporations, consumer housing

cooperatives, limited dividend housing corporations, mobile home

park corporations, and mobile home park associations and that

provide for the disposition of the property and franchises of those

corporations, cooperatives, and associations.

(q) To appoint to the board of directors of a nonprofit

housing corporation, consumer housing cooperative, limited dividend

housing corporation, mobile home park corporation, or mobile home

park association, a number of new directors sufficient to

constitute a majority of the board notwithstanding other provisions

of the articles of incorporation or other provisions of law.

Directors appointed under this subsection need not be stockholders

or members or meet other qualifications that may be described by

the certificate of incorporation or bylaws. In the absence of fraud

or bad faith, directors appointed under this subsection shall not

be personally liable for debts, obligations, or liabilities of the

corporation or association. The authority may appoint directors

under this subsection only if 1 or more of the following occur:

(i) The nonprofit housing corporation, consumer housing

cooperative, limited dividend housing corporation, mobile home park

corporation, or mobile home park association has received a loan or

advance, as provided for in this act, and the authority determines

that the loan or advance is in jeopardy of not being repaid.

(ii) The nonprofit housing corporation, consumer housing

cooperative, limited dividend housing corporation, mobile home park

corporation, or mobile home park association received a loan or

advance as provided for in this act and the authority determines

that the proposed housing project for which the loan or advance was

made is in jeopardy of not being constructed.

(iii) The authority determines that some part of the net income

or net earnings of the nonprofit housing corporation is inuring to

the benefit of a private individual, firm, corporation,

partnership, or association; the authority determines that an

unreasonable part of the net income or net earnings of the consumer

housing cooperative is inuring to the benefit of a private

individual, firm, corporation, partnership, or association; or the

authority determines that some part of the net income or net

earnings of the limited dividend housing corporation, in excess of

that permitted by other provisions of this act, is inuring to the

benefit of a private individual, firm, corporation, partnership, or

association.

(iv) The authority determines that the nonprofit corporation or

consumer housing cooperative is in some manner controlled by, under

the direction of, or acting in the substantial interest of a

private individual, firm, corporation, partnership, or association

seeking to derive benefit or gain from, or seeking to eliminate or

minimize losses in any dealings or transactions with, the nonprofit

corporation or consumer housing cooperative. However, this

subparagraph shall apply to individual cooperators in consumer

housing cooperatives only in circumstances defined by the authority

in its rules.

(v) The authority determines that the nonprofit housing

corporation, consumer housing cooperative, limited dividend housing

corporation, mobile home park corporation, or mobile home park

association is in violation of the rules promulgated under this

section.

(vi) The authority determines that the nonprofit housing

corporation, consumer housing cooperative, limited dividend housing

corporation, mobile home park corporation, or mobile home park

association is in violation of 1 or more agreements entered into

with the authority that provide for regulation by the authority of

the planning, development, and management of a housing project

undertaken by the nonprofit housing corporation, consumer housing

cooperative, limited dividend housing corporation, mobile home park

corporation, or mobile home park association or that provide for

the disposition of the property and franchises of the corporation,

or cooperative, or association.

(r) To give approval or consent to the articles of

incorporation submitted to the authority by a corporation seeking

approval as a nonprofit housing corporation, consumer housing

cooperative, limited dividend housing corporation, or mobile home

park corporation under chapter 4, 5, 6, or 8; to give approval or

consent to the partnership agreement, joint venture agreement,

trust agreement, or other document of basic organization of a

limited dividend housing association under chapter 7 or mobile home

park association under chapter 9.

(s) To engage the services of private consultants on a

contract basis for rendering professional and technical assistance

and advice.

(t) To lease real or personal property and to accept federal

funds for, and participate in, federal programs of housing

assistance.

(u) To review and approve rental charges for authority-

financed housing projects and require whatever changes the

authority determines to be necessary. The changes shall become

effective after not less than 30 days' written notice is given to

the residents of the affected authority-financed housing projects.

(v) To set forth in the various loan documents of the

authority those restrictions on the sale, conveyance by land

contract, or transfer of residential real property, housing

projects, or housing units for which a note is held by the

authority and restrictions on the assumption by subsequent

purchasers of loans originated by and held by, or originated for

purchase by and held by, the authority as the authority determines

to be necessary in order to comply with requirements of federal

statutes, federal rules or regulations promulgated under ~~sections~~

~~551 to 559 of title 5 of the United States Code,~~ 5 USC 551 to 559,

state statutes, or state rules promulgated under the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, or to

obtain and maintain the tax exempt status of authority bonds and

notes. However, the authority shall not use a due on sale or

acceleration clause solely for the purpose of renegotiating the

interest rate on a loan made with respect to an owner-occupied

single-family housing unit. Without limiting the authority's power

to establish other restrictions, as provided in this section, on

the sale, conveyance by land contract, or transfer of residential

real property, housing projects, or housing units for which a note

is held by the authority and the assumption by subsequent

purchasers of loans made or purchased by the authority, the

authority shall provide in its loan documents relating to a single

family loan that the single family loan may be assumed by a new

purchaser only when the new purchaser qualifies under the authority

income limitations rules, ~~except where~~ unless such a restriction

diminishes or precludes the insurance or a guarantee by an agency

of the federal government with respect to the single family loan. A

loan made for a mobile home that the borrower does not intend to

permanently affix to real property shall become immediately due and

payable ~~in the event~~ if the mobile home is moved out of the state.

Any restrictions on conveyance by sale, conveyance by land

contract, or transfer that are authorized in this section shall

apply only to loans originated by and held by, or originated for

purchase by and held by, the authority and may, at the option of

the authority, be enforced by accelerating and declaring

immediately due and payable all sums evidenced by the note held by

the authority. An acceleration and declaration of all sums to be

due and payable on conveyance by sale, land contract, or transfer

is not an unreasonable restraint on alienation. An acceleration and

declaration, unless otherwise prohibited in this subdivision, of

all sums to be due and payable under this subdivision is

enforceable in any court of competent jurisdiction. This

subdivision is applicable to secured and unsecured loans. This

subdivision is also applicable to loan documents utilized in

conjunction with an authority-operated program of residential

rehabilitation by an entity cooperating or participating with the

authority under section 22a(4), ~~which~~ if the loans are originated

with the intent to sell those loans to the authority.

(w) To set forth in the various loan documents of the

authority ~~those~~ remedies for the making of a false statement,

representation, or pretense or a material misstatement by a

borrower during the loan application process. Without limiting the

authority's power to pursue other remedies, the authority shall

provide in its loan documents that, if a borrower makes a false

statement, representation, or pretense or a material misstatement

during the loan application process, the authority, at its option,

may accelerate and declare immediately due and payable all sums

evidenced by the note held by the authority. An acceleration and

declaration of all sums to be due ~~as authorized under this~~

~~subdivision~~ and payable as provided in this subdivision is

enforceable in any court of competent jurisdiction. This

subdivision is applicable to secured and unsecured loans.

(x) To collect interest on a real estate loan, the primary

security for which is not a first lien on real estate, at the rate

of 15% or less per annum on the unpaid balance. This subdivision

does not impair the validity of a transaction or rate of interest

that is lawful without regard to this subdivision.

(y) To encourage and engage or participate in programs to

accomplish the preservation of housing in this state available for

occupancy by persons and families of low or moderate income.

(z) To verify for the state treasurer statements submitted by

a city, village, township, or county as to exempt properties under

section 7d of the general property tax act, 1893 PA 206, MCL

211.7d.

(aa) For the purpose of more effectively managing its debt

service, to enter into an interest rate exchange or swap, hedge, or

similar agreement with respect to its bonds or notes on the terms

and payable from the sources and with the security, if any, as

determined by a resolution of the authority.

(bb) To make working capital loans to contractors or

subcontractors on housing projects financed by the authority. The

authority shall submit an annual report to the legislature

containing the amount, recipient, duration, circumstance, and other

related statistics for each capital loan made to a contractor or

subcontractor under this subdivision. The authority shall include

in the report statistics related to the cost of improvements made

to adapt property for use by disabled individuals as provided in

section ~~32b(5) or (6)~~ 32b or ~~section 44(2)(a).~~44.

(cc) Subject to rules of the civil service commission, to

adopt a code of ethics with respect to its employees that requires

disclosure of financial interests, defines and precludes conflicts

of interest, and establishes reasonable post-employment

restrictions for a period of up to 1 year after an employee

terminates employment with the authority.

(dd) To impose covenants running with the land in order to

satisfy requirements of applicable federal law with respect to

housing assisted or to be assisted through federal programs such as

the low income housing tax credit program or the home investment

partnerships program. These covenants shall be imposed by executing

and recording regulatory agreements between the authority, or ~~such~~

a municipality or other entity ~~as may be~~ designated by the

authority, and the person or entity to be bound. ~~These~~ The

covenants shall run with the land and be effective with respect to

the parties making the covenants and other intended beneficiaries

of the covenants, even though there is no privity of estate or

privity of contract between the authority and the persons or

entities to be bound.

(ee) To impose covenants running with the land in order to

satisfy requirements of applicable state or federal law with

respect to housing financed by the authority. These covenants shall

be imposed by executing and recording regulatory agreements between

the authority and the person or entity to be bound. ~~These~~ The

covenants shall run with the land and be effective with respect to

the parties making the covenants and other intended beneficiaries

of the covenants, even though there is no privity of estate or

privity of contract between the authority and the persons or

entities to be bound. With respect to ~~the application of~~ any

applicable environmental laws, this subdivision ~~shall not be~~

~~construed to~~ does not grant to the authority any additional rights,

privileges, or immunities not otherwise afforded to a private

lender that is not in the chain of title for the land.

(ff) To participate in programs designed to assist persons and

families whose incomes do not exceed 115% of the greater of

statewide median gross income or the area median gross income

become homeowners where loans are made by private lenders for

purchase by the government national mortgage association, federal

national mortgage association, federal home loan mortgage

corporation, or other federally chartered organizations.

Participation may include providing or funding homeownership

counseling and providing some or all of a reserve fund to be used

to pay for losses in excess of insurance coverage.

(gg) To invest, under the conditions prescribed in this

subdivision and without the consent of the escrow depositors, up to

20% of funds held, by or for the authority, in escrow accounts for

the benefit of the authority or mortgagors of authority-financed

housing. The investments under this subdivision shall be made in

loans originated or purchased by the authority ~~, under the~~

~~conditions prescribed in this subdivision and without the consent~~

~~of the escrow depositors.~~ for construction or rehabilitation of

multifamily housing developments for occupancy by persons or

families without regard to income. In connection with loans

described in this subdivision, the authority may charge and retain

fees in amounts similar to those charged with respect to similar

loans for which the source of funding does not come from escrow

~~funds.~~ accounts. For purposes of this subdivision, "escrow account"

means any account or reserve held by the authority and established

in a mortgage or a regulatory agreement to which the authority is a

party or which has been assigned to the authority. However, for

purposes of this subdivision, escrow account does not include any

account labeled in the associated regulatory agreement as

"development cost escrow principal" or "operating assurance

reserve". For purposes of this subdivision, "multifamily housing

development" means a development in which not less than 50% of the

floor space is used primarily for residential purposes. The

investment authorized by this subdivision shall not be made unless

both of the following requirements are met:

(i) The return on the loan is approximately equivalent to that

which could be obtained from investments of substantially similar

credit quality and maturity, as determined by the authority.

(ii) The authority agrees to ~~repurchase from~~ pay with its own

funds ~~and at the same prices at which the loans were sold to~~ the

principal balance of any loan, made with the escrow funds, as

~~adjusted for the accretion of discount or amortization of premium,~~

~~plus accrued interest, any loans that become~~ that becomes

delinquent in excess of 30 days. This subdivision does not obligate

the authority to purchase a delinquent loan so long as with respect

to that loan the authority ~~advances money~~ pays to the escrow funds

from its own funds in the amount of the delinquent payments. The

authority's election to ~~advance~~ pay the delinquent payments to the

escrow funds does not in any manner abate or cure the delinquency

of the loan and the authority may resort to any remedies that would

exist in the absence of that payment.

(hh) To acquire, develop, rehabilitate, own, operate, and

enter into contracts with respect to the management and operation

of real and personal property to use as office facilities by the

authority and to enter into leases with respect to facilities not

immediately necessary for the activities of the authority.

(ii) To make loans to certain qualified buyers and resident

organizations and to make grants to resident organizations as

provided in the following:

(i) The urban homestead act, 1999 PA 127, MCL 125.2701 to

125.2709.

(ii) The urban homesteading on vacant land act, 1999 PA 129,

MCL 125.2741 to 125.2748.

(iii) The urban homesteading in single-family public housing

act, 1999 PA 128, MCL 125.2761 to 125.2770.

(iv) The urban homesteading in multifamily public housing act,

1999 PA 84, MCL 125.2721 to 125.2734.

(jj) To implement and administer a housing and community

development program as described in this act.

(kk) To implement, administer, or execute administrative,

substantive, or supervisory powers pursuant to the individual or

family development account program act, 2006 PA 513, MCL ~~206.701~~

206.901 to ~~206.711.~~206.911.