No, you won't lose your housing lottery apartment for making too much money

By Nathan Tempey  | August 31, 2018 - 10:00AM

Battery Park City, known for its elite ambience, includes some housing lottery apartments.

Billie Grace Ward/Flickr

The New York City affordable housing lottery is a complicated process involving a maze of city, state, and federal programs. Typically, lottery apartments are in partially or fully below-market-rate buildings where the developer got some sort of tax and/or zoning incentive in exchange for keeping the apartments in question designated affordable for a certain period of time. There's a lot that's confusing about applying, and for an in-depth explanation of that, you can check out our guide here and our podcast on the subject here.

One major issue that people face is changes in their income between the time they apply and the time they're accepted, which can be a deal-breaker given that lottery apartments are set aside for households of specific sizes making an annual income within a very specific range. So if you get married, get a major promotion, or lose your job between the time you apply and when the city or developer picks you—a not uncommon scenario in a city where housing wait lists can extend for decades—that could knock you out of eligibility.

[Editor's note: This story was originally published in February 2018. We are presenting it again here as part of our summer Best of Brick week.]

We've seen a related, and it seems, mistaken belief online that once you're in a lottery apartment, you need to continue to keep your income down within the target range, or risk losing your apartment. The uncertainty seems to arise from the requirement that some buildings have for lottery tenants to re-certify their income annually. 

You may have to re-certify, but don't worry

A spokesman for the Department of Housing Preservation and Development, one of the city agencies that administers affordable housing programs, says that as a rule of thumb, buildings that get federal low-income housing tax credits require lottery apartment tenants to re-certify their incomes, whereas buildings in common city and state programs such as the 421-a tax exemption don't. It sounds simple, but in practice there is a large galaxy of programs that any given building owner can be taking advantage of, and it's possible for multiple ones to be in play in a given building. 

The details of when and how you'll have to re-certify your income (it can involve collecting months of pay stubs, tax forms, and bank statements) should be included in the application materials, your lease, and the regulatory agreement for the building, which you should be able to look up, according to the HPD spokesman. 

If your building doesn't require recertification, ducky for you. But if it does, don't despair. Your income rising over a certain level can have consequences, but for the good: if you get married to someone who's working or get a better-paying job and your household income rises to above a certain threshold so that you no longer qualify as low-income, your apartment remains rent-stabilized, and you get to stay in it, but the building owner is required to add a comparably sized apartment to the lottery program and make it available for applications when one comes vacant. 

By making more money in these instances, "You actually make room for your neighbors," says Brian Cahill-Moledo, lead organizer for Churches United for Fair Housing, an affordable housing advocacy and services group.

Once you're in, it's hard to get kicked out

Lottery apartments are typically subject to rent stabilization, which means that you're guaranteed a renewal lease, and you can only be evicted for a handful of reasons. The biggies are chronic nonpayment of rent, non-primary residence—i.e. you live somewhere not your lottery apartment for more than half the year—and creating a nuisance, as in you have a dog that's biting your neighbors and won't do anything about it.

The specific rules, of course, depend on the specific regulatory history of your building, so be sure to do your research to make sure you understand what programs are involved, and whether your landlord is following them properly.

What about those rich people who got booted?

Stockbroker David Sans made headlines recently after a judge ruled that his landlord could kick him out of his $722-a-month lottery apartment in a luxury building in Chelsea. So what happened there? The issue was with what he did during the application period, not his later reported six-figure income. A judge ruled that Sans had no adequate explanation for how he made under $25,000 a year in 2012, when he applied for the income-restricted apartment, as The Real Deal reports. Going from flipping burgers to making a killing on Wall Street would be fine, so long as he saved the career change till after he moved into the lottery apartment. Not as kosher was making eight times as much as the amount he represented when he applied, as state Comptroller Tom DiNapoli found in an audit.

Bottom line: Do your homework

To avoid being declined a lottery apartment on the basis of income changes between applying and getting accepted, there are some precautions you can take. Cahill-Moledo advises keeping detailed records of every financial, familial, and professional change, and also applying often as you go through life, because you never know when one of the applications will hit.

"If you applied for an apartment when you were a broke, part-time student and there’s no way of winning now," because of your income, "apply for a new one and don’t worry about that one," he says.

On the other hand, if you went freelance or recently took a new job but think you still qualify, be prepared to explain in the interview how things are different, and why you should make the cut. 

"It’s no use lying about income, because you have to provide documents qualifying all of it," Cahill-Moledo says. "People get cagey when, if they’d been honest, it would have gotten them the apartment."

Consulting with an affordable housing advocacy group ahead of your interview could help you prepare explanations of your life's twists and turns, and know what documents to track down. Also, it doesn't make sense to organize your life around a lottery, which is intrinsically something that might not work out, but if you're on a waiting list and know that you're near the front of the line, it might just be the time to press pause on some big life-changing moves.

Speaking about Mitchell-Lama apartments, which are not exactly what we're discussing here but entail similar income requirements at application time, housing attorney Dean Roberts says, "Say you’re number four from getting a one-bedroom apartment in a highly desirable [building]—you might want to put your wedding off for a year. There’s an economic decision to make: 'If I get married I will be over income.'"

He continues, "It’s not something I want to tell my wife: 'Look, we can’t get married because I want to get this apartment.' But if she’s familiar with New York, I think she’ll understand."



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