Tax Type
Corporation Income Tax
Description
Credits to Owners of Rental Housing Units for Elderly or Disabled; Fair Housing Laws
Topic
Credits
Date Issued
02-07-1992
[Opinion - Virginia Attorney General: 1992 at 123]
REQUEST BY: The Honorable Carroll M. Cooper Chairman, Board of Commissioners Virginia Housing Development Authority 601 South Belvidere Street Richmond, Virginia 23220
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask whether the program established under § 58.1-339 of the Code of Virginia, which allocates state tax credits to owners of rental housing units who provide housing to low income elderly or disabled persons, conflicts with either federal or state fair housing laws.
I. Applicable Statutes
Section 58.1-339 allows a tax credit to individual and corporate landlords who are subject to the Virginia Residential Landlord and Tenant Act, §§ 55-248.2 through 55-248.40, if they provide "a reduced rent [at least 15% less than the rent charged to other tenants for comparable units in the property] to low income tenants who either exceed the age of sixty-two or are disabled from a physical or mental condition." § 58.1-339(ii).
The Virginia Fair Housing Law, Chapter 5.1 of Title 36, §§ 36-96.1 through 36-96.23, prohibits housing practices that discriminate "because of race, color, religion, national origin, sex, elderliness . . . or handicap." § 36-96.3. "Elderliness" is defined as being over fifty-five years of age, and " handicap" refers to a person with a "physical or mental impairment" that limits such persons activities. § 36-96.1:1.
Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3602, 3604-3608, 3610-3619, and 3631 (1988) (the "FHAA"), imposes substantially similar prohibitions to those in the Virginia Fair Housing Law.
II. Tax Credit Progam Does Not Violate Virginia Fair Housing Law
Section 58.1-339 was enacted in 1990 while the predecessor statute to the current Fair Housing Law was in effect.1 A presumption of a validity attaches to any statute enacted by the General Assembly. Colman v. Pross, 219 Va.143, 153, 246 S.E.2b 613, 619 (1978). It is a "'firmly established principle of law'" that when two statutes are in apparent conflict, if reasonably possible, they should be given "'such a construction as will give force and effect to each.'" American Cyanamid Co. v. Com., 187 Va. 831, 841, 48 S.E.2d 279, 285 (1948) (citation omitted).
The Virginia Fair Housing Law clearly is intended to correct practices which denied to certain groups -- among them the elderly and handicapped -- equal access to, and benefits from, housing opportunities. In that sense, it is a remedial law. "Remedial statutes are to be 'construed liberally, so as to suppress the mischief and advance the remedy' in accordance with the legislature's intended purpose. All other rules of construction are subservient to that intent." University of Virginia v. Harris, 239 Va. 119, 124 387 S.E.2d 772, 775 (1990) (quoting Board of Sup. v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 898 (1989) (emphasis added)). The "mischief" which the Fair Housing Law seeks to suppress is the denial of housing opportunities to persons who fall within its designated classifications.
Section 58.1-339 does not require that a landlord designate specified units or numbers of units for participation in the tax credit program, nor does it restrict anyone's access to available housing.2 It simply provides a financial incentive to landlords to make available housing affordable for low income people who are elderly or handicapped. The two statutes are not in direct conflict, because one speaks to the availabilty of housing, while the other speaks to its affordability. To the extent any conflict may exist, it is resolved by the fact that both are remedial statutes which have as their goal increased access to housing opportunities by people who traditionally have been denied such opportunities. Resolving the conflict in this manner promotes the ability of each of the two statutes to remedy the "mischief" to which it is directed. See University of Virginia v. Harris, 239 Va. at 124, 387 S.E.2d at 775. A contrary interpretation would cause the Fair Housing Law to repeal by implication the tax credit provisions of § 58.1-339. Such repeals by implication are not favored. See American Cyanamid Co. v. Commonwealth, 187 Va. at 841, 48 S.E.2d at 285.3
III. Tax Credit Program Does Not Violate FHAA
When a state statute does not contradict a federal law but may be harmonized with the federal law's statutory scheme and general purpose, the state statute will be upheld. United Hosp. Center, Inc. v. Richardson, 757 F.2d 1445, 1451 (4th Cir. 1985) (dismissing challenge to West Virginia Health Care Review Act and regulations as contradictory to Medicare/Medical provisions of Social Security Act). The Virginia Fair Housing Law is substantially similar in its requirements to its federal counterpart, the FHAA. In my opinion, therefore, the conclusions about how § 58.1-339 can be harmonized with the Virginia Fair Housing Law discussed in part II above apply with equal force to the FHAA.
1 Virginia has had a fair housing law since 1972. The current version of these statutes was adopted in 1991 upon the repeal of the previous law, Chapter 5 of Title 36, §§ 38-86 to 36-96. ch. 557, 1991 VA. Acts 979 (Reg. Sess.).
2 Neither the Virginia Housing Tax Credit Program Policies and Procedures, nor the Rules and Regulations for allocation of Elderly and Disabled Low-Income Housing Tax Credits, adopted to implement § 58.1-339, express and preference for the elderly or disabled as prospective tenants for available housing, nor do these administrative policies or rules indicate any exclusion for otherwise eligible households that also have children. You indicate that the qualifying rent reductions are available regardless of whether there are children in the household. You also indicate that the tax credit is available for any units for which the landlord offers a rent reduction, and the program regulations do not require that any particular units or a specific number of units be designated for participation in the program.
3 On its face, each statute complements the other and I conclude that there is no conflict between them. In practice, however, the tax credit program may be administered or used by landlords in such a way that violates the Virginia Fair Housing Law. For example, if a landlord in advertising or screening applicants expressed a preference for elderly tenants, such a preference might have an adverse impact on other protected groups or even a reverse discriminatory effect on nonelderly applicants, unless that landlord's property qualified for the exemption for housing for older persons in accordance with § 36-96.7. Such a determination can only be made on a case-by-case basis after a review of the facts unique to that case.
Attorney General's Opinion