Introduction

This topic contains information on ineligible projects and related criteria, including:

• List of Ineligible Project Characteristics
• Projects that Operate as Hotels or Motels
• Projects Subject to Split Ownership Arrangements
• Projects that Contain Multi-Dwelling Unit Condos or Co-ops
• Projects with Property that is not Real Estate
• Projects that Operate as a Continuing Care Community or Facility
• Non-Incidental Business Arrangements
• Commercial Space and Mixed-Use Allocation
• Live-Work Projects
• Litigation
• Single-Entity Ownership

List of Ineligible Project Characteristics

Fannie Mae will not purchase or securitize mortgage loans that are secured by units in certain condo or co-op projects if those projects have characteristics that make the project ineligible. Such characteristics are described in the table below, with additional details provided in the sections that follow. All eligible projects must be created and remain in full compliance with state law and all other applicable laws and regulations of the jurisdiction in which the project is located.
Note: If a lender determines that a project does not meet all of Fannie Mae's project eligibility requirements but believes that the project has merit and warrants additional consideration, the lender may request an exception (see B4-2.2-07, Projects with Special Considerations and Project Eligibility Waivers (11/10/2014), for additional information).

Projects that Operate as Hotels or Motels

A project may not be operated or managed as a hotel, motel, or similar commercial entity as evidenced by meeting one or more of the following criteria:

• The HOA is licensed as a hotel, motel, resort, or hospitality entity.
• The HOA or project's legal documents restrict owners' ability to occupy the unit during any part of the year.
• The HOA or project's legal documents require owners to make their unit available for rental pooling (daily or otherwise).
• The HOA or the project's legal documents require unit owners to share profits from the rental of units with the HOA, management company, or resort, or hotel rental company.

Projects Subject to Split Ownership Arrangements

Projects with covenants, conditions, and restrictions that split ownership of the property or curtail an individual borrower's ability to utilize the property are not eligible for delivery to Fannie Mae. These types of properties include, but are not limited to, the following:

• "common interest" apartments or community apartment projects that are projects or buildings owned by several owners as tenants-in-common or by an association in which individuals have an undivided interest in a residential apartment building and land, and have the right of exclusive occupancy of a specific apartment in the building;
• projects that restrict the owner's ability to occupy the unit, even if the project is not being operated as a motel or hotel; and
• projects with mandatory rental pooling agreements that require unit owners to either rent their units or give a manage- ment firm control over the occupancy of the units.
  • These are formal agreements between the developer, association, and/or the individual unit owners that obligate the unit owner to rent the property on a seasonal, monthly, weekly, or daily basis. In many cases, the agreements include blackout dates, continuous occupancy limitations, and other such use restrictions. In return, the unit owner receives a share of the revenue generated from the rental of the unit.

Projects that Contain Multi-Dwelling Unit Condos or Co-ops

Projects that contain multi-dwelling units are not permitted. These projects allow an owner to hold title (or share ownership and the accompanying occupancy rights) to a single legal unit that is sub-divided into multiple residential dwellings within


the single legal unit, with ownership of the unit (or shares) evidenced by a single deed and financed by a single mortgage (or share loan). The sub-divided units are not separate legal units. This restriction applies regardless if the unit owner main- tains one or more of the sub-divided units as rental units or uses one or more of the sub-divided units as accessory or lock- out units.
This provision does not apply to condo or co-op projects that allow an individual to buy two or more individual legal units with the intent of structurally and legally combining the units for occupancy as a single-unit dwelling. Mortgages secured by units in these types of projects are eligible for purchase and securitization by Fannie Mae provided all of the following require- ments are met:

• The unit securing the mortgage represents a single legal unit under a single deed.
• Any construction or renovation to structurally combine units has no material impact on the structural or mechanical integrity of the project's buildings or the subject property unit.
• The individual units must be fully described in the legal description in the mortgage and under a single deed.
• The project's legal documents must have been amended to reclassify the combined units as a single unit in the project.
• All structural renovation to physically combine the units must be completed.

A condo or co-op unit with an accessory unit may be eligible on a case-by-case basis with a Fannie Mae PERS Project Ap- proval or a loan-level project eligibility waiver. See B4-2.2-07, Projects with Special Considerations and Project Eligibility Waivers (11/10/2014), for additional information on submitting an exception request.

Projects with Property that is not Real Estate

Fannie Mae acquires mortgage loans secured by real estate. Houseboats, boat slips, cabanas, timeshares, and other forms of property that are not real estate are not eligible for delivery to Fannie Mae. The marketability and value of individual units in a project may be adversely impacted by the inclusion of non-real estate property such as houseboats, timeshares, and other forms and structures that are not real estate. As such, projects containing these other non-real estate forms of property are not eligible.
Boat slips, cabanas, and other amenities are permitted when owned in common by the unit owners as part of the HOA.

Projects that Operate as a Continuing Care Community or Facility

Mortgages secured by units in a project that operates, either wholly or partially, as a continuing care community are ineligible for delivery to Fannie Mae. These communities or facilities are residential projects designed to meet specialized health and housing needs and typically require residents to enter into a lifetime contract with the facility to meet all future health, hous- ing, or care needs. These communities may also be known by other names such as life-care facilities.
Projects that make continuing care services available to residents are eligible only if the continuing care facilities or services are not owned or operated by the HOA and residential unit owners are not obligated to purchase or utilize the services through a mandatory membership, contract, or other arrangement.
Continuing care communities are not the same as age-restricted projects. Age-restricted projects that restrict the age of res- idents but do not require residents to enter into a long-term or lifetime contract for healthcare and housing as the residents age are eligible.

Non-Incidental Business Arrangements

A condo project is ineligible if the HOA is receiving more than 10% of its budgeted income from non-incidental business ar- rangements related to the active ownership and/or operation of amenities or services available to unit owners and the gen- eral public. This includes, but is not limited to, businesses such as a restaurant or other food- and beverage-related services, health clubs, and spa services.
Non-incidental income from the following sources is permitted provided the income does not exceed 15% of the project's budgeted income:

• income from the use of recreational amenities or services owned by the HOA for the exclusive use by unit owners in the project or leased to another project according to a shared amenities agreement (as noted below), or
• income from the leasing of units in the project acquired by the HOA through foreclosure.

The single-entity ownership limits (described above) will apply to the number of units owned and rented by the HOA.

Commercial Space and Mixed-Use Allocation

Fannie Mae requires that no more than 35% of a condo or co-op project or 35% of the building in which the project is located be commercial space or allocated to mixed-use. This includes commercial space that is above and below grade. Note that projects located in Special Flood Hazard Areas with commercial space greater than 25% of the project's square footage, including any commercial parking facilities, may need supplemental or private flood insurance policies to meet Fannie Mae's requirements for flood insurance. Coverage under the National Flood Insurance Program may provide inadequate coverage for projects with commercial space in excess of 25%. See B7-3-07, Flood Insurance Coverage Requirements (03/29/2016) for additional information.
Any commercial space in the project or in the building in which the residential project is located must be compatible with the overall residential nature of the project.
Note: Rental apartments and hotels located within the project must be classified as commercial space even though these may be considered "residential" in nature. Commercial parking facilities can be excluded from the commercial space calculation.
Calculation of Commercial Space. Commercial space allocation is calculated by dividing the total non-residential square footage by the total square footage of the project or building. Lenders are responsible for determining the total square footage of the project, the square footage of the non-residential space, and the residential space square footage. This calculation includes the total square footage of commercial space even if the residential and commercial owners are represented by separate associations.
Non-residential square footage includes:

• retail and commercial space, and
• space that is non-residential in nature and owned by a private individual or entity outside of the HOA structure.

Examples include, but are not limited to:

• rental apartments,
• hotels,
• restaurants, and
• private membership-based fitness facilities.

Non-residential square footage excludes amenities that are:

• residential in nature;
• designated for the exclusive use of the residential unit owners (such as, but not limited to, a fitness facility, pool, com- munity room, and laundry facility); and
• owned by the unit owners or the HOA.

The following table shows which commercial or mixed-use space must be included in the calculation of the percentage of commercial space.

Live-Work Projects

Live-work projects are projects that permit individual residential unit owners to operate and run a small business from their residential unit. Units in projects that permit live-work arrangements are eligible for sale to Fannie Mae provided the project complies with all applicable local zoning, program, or statutory requirements for live-work projects and the nature of the proj- ect is primarily residential.

Litigation

Projects in which the HOA or co-op corporation is named as a party to pending litigation, or for which the project sponsor or developer is named as a party to pending litigation that relates to the safety, structural soundness, habitability, or functional use of the project are ineligible for sale to Fannie Mae.
If the lender determines that pending litigation involves minor matters with no impact on the safety, structural soundness, habitability, or functional use of the project, the project is eligible provided the litigation meets one or more of the following:

• non-monetary litigation including, but not limited to neighbor disputes or rights of quiet enjoyment;
• litigation for which the insurance carrier has agreed to provide the defense, and the amount is covered by the HOA's or co-op corporation's insurance;
• the HOA or co-op corporation is the plaintiff in the litigation and upon investigation and analysis the lender has reason- ably determined the matter is minor and will result in an insignificant impact to the financial stability of the project;
• the reasonably anticipated or known damages and legal expenses are not expected to exceed 10% of the project's funded reserves;
• the HOA or co-op corporation is seeking recovery of funds for issues that have already been remediated, repaired, or replaced and there is no anticipated material adverse impact to the HOA or co-op corporation if funds are not recov- ered;
• litigation concerning localized damage to a unit in the project that does not impact the overall safety, structural sound- ness, habitability, or functional use of the project; or
• the HOA or co-op corporation is named as the plaintiff in a foreclosure action, or as a plaintiff in an action for past due HOA or co-op assessments.

Litigation that involves personal injury or death does not meet Fannie Mae's criteria for minor litigation unless

• the claim amount is reasonably anticipated or known,
• the insurance carrier has agreed to provide the defense, and
• the reasonably anticipated or known damages are covered by the HOA's or co-op corporation's insurance.

Construction defect litigation in which the HOA or co-op corporation is the plaintiff are not considered a minor matter unless the HOA or co-op corporation is seeking recovery of funds for issues that have already been remediated, repaired, or re- placed. In addition, there is no anticipated material adverse impact to the HOA or co-op if the funds are not recovered.
The lender must obtain documentation to support its analysis that the litigation meets Fannie Mae's criteria for minor litigation as described above.

Single-Entity Ownership

A project meets the definition of single-entity ownership when a single entity (the same individual, investor group, partner- ship, or corporation) owns more than the following total number of units in the project:

• projects with 5 to 20 units - 2 units
• projects with 21 or more units - 20%

Units currently subject to any rental or lease arrangement must be included in the calculation. This includes lease arrange- ments containing provisions for the future purchase of units such as lease-purchase and rent-to-own arrangements.
The following may be excluded from the single-entity ownership calculation:

• units that are owned by the project sponsor or developer and are vacant and being actively marketed for sale; or
• units that are controlled or owned by a non-profit entity for the purpose of providing affordable housing, units held in affordable housing programs (including units subject to non-eviction rent regulation codes), or units held by higher-edu- cation institutions for a workforce housing program.

The single-entity ownership requirement may be waived when the transaction is a purchase transaction that will result in a reduction of the single-entity ownership concentration. In such instances, the following requirements must be met:

• units owned by the single entity represent no more than 49% of the units;
• evidence is required that the single entity is marketing units for sale to further reduce single-entity ownership, with the goal of reducing the concentration to 20% or less o the project units;
• the single entity is current on all HOA assessments; and
• there are no pending or active special assessments in the project.

Related Announcements

The table below provides references to the Announcements that have been issued that are related to this topic.