Pathways to Justice Conference June 10 – 11, 2015 Speakers: Common Issues in Subsidized Housing...

Pathways to Justice Conference June 10 – 11, 2015

Speakers:

Common Issues in Subsidized Housing

Navneet K. Grewal, Western Center on Law and Poverty Maria Palomares, Neighborhood Legal ServicesRenee Williams, National Housing Law Project


What We Will Cover

• Brief introduction to federally subsidized housing

• Evictions versus terminations• The “good cause” requirement• Common eviction scenarios and responses• Administrative hearings• Q&A

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DOES MY CLIENT LIVE IN SUBSIDIZED HOUSING?

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Types of Subsidized Housing

• Public Housing• HUD-Subsidized Multifamily• Project-Based Section 8• Low Income Housing Tax Credit• Housing Choice Voucher (Section 8 Voucher)• Project-based Voucher• Other

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What Type of Housing is My Client In?• Extremely low rent?• Who is the Landlord?• Lease• Regulatory/Use agreements• Is a PHA involved?• National Housing Preservation Database

– www.preservationdatabase.org (registration required)

• If everything else fails, ask the landlord!

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http://www.preservationdatabase.org/


EVICTIONS AND TERMINATIONS

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Eviction v. Termination

• Evictions: – Public Housing

providers, Multifamily housing providers, private landlords leasing to Section 8 voucher holders

– I.E. HACLA v. Mr. X OR John Stewart Co. v. Mr. X

• Termination: – A PHA can terminate a

participant from the voucher program regardless of whether or not s/he has been evicted from her unit.

– I.E. Receive a notice of proposed termination

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Subsidized Housing: Good Cause Requirement

• Good cause required:– Public Housing– HUD Multifamily– LIHTC – Shelter Plus Care – HOPWA– Supportive Housing

• For Vouchers: – Good cause required during lease term (but at all times in an

eviction controlled jurisdiction).

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COMMON EVICTION SCENARIOS

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Common Violations1. Nonpayment of rent2. Breach of lease

i. Late paymentsii. Unauthorized occupantsiii. Disruptive behavioriv. Damaging the property

3. Unreported Income4. Failure to pay utilities5. Criminal Activity/Drug use 6. Fraud/Misrepresentation

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Nonpayment of Rent

• Most programs – participants pay 30% of adjusted income toward rent

• Variations in voucher, tax credit programs• Is the rent calculated correctly? • Are there additional charges (e.g., late fees or

illegal pet fee if RAC) being combined with rent?• If rent control, was the RSO increase approved by

the PHA?


Breach of Lease: Late Payments

• Regular late payments?• Does the landlord continually accept late rent?


Breach of Lease: Unauthorized Occupants

• Overstaying amount of time someone can stay as guest

• Not adding someone to household • RSO exceptions (be careful however that the

defense is not inconsistent with what is reported to PHA)


Breach of Lease: Disruptive Behavior

• Fights• Attacking an employee • Nuisance • Defenses: RAC and Proof


Breach of Lease: Damaging the Property

• Major versus minor damage• Has landlord refused to maintain and upkeep

unit?• Result of domestic violence?• Proof? – Discovery: request proof of up keep, is the unit in

REAP, or failed HQS inspections


Unreported Income

• Sporadic jobs (i.e. seasonal retail)• Informal jobs (i.e. babysitting)• Other


Failure to Pay Utilities

• Utilities disconnected for unit• Short-term versus long-term outage


Criminal Activity

• Drug activity – Rucker “one strike” • Physical violence• On or off premises


Fraud/Misrepresentation

• False statements• Omission of important information


COMMON EVICTION RESPONSES


Common Eviction Responses

• Violation cured within required time period• Waiver and laches• Warranty of Habitability• Retaliation• Discrimination – Reasonable accommodation– Violence Against Women Act (VAWA)/CCP 1161.3– Language

• Relief from Forfeiture (CCP 1179)

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Mitigating Factors

• Mitigating Factors– Seriousness of offense– Extent of participation or culpability of individual family

members (24 C.F.R. Section 982.552(c)(2))– Mitigating circumstances related to disability*– Mitigating circumstances related to language barrier (LEP)– Effects of termination of assistance on other family

members who were not involved• Some courts require the PHA/landlord to consider

mitigating factors before commencing eviction

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Nonpayment of rent

• Nonpayment of rent is often a serious lease violation; can also result in termination of subsidy

• Defenses– Cal. limitation: cannot demand rent more than one year past

due. CCP 1161(2).– Improper calculation of rent; failure to recertify correctly.– Inclusion of other charges with rent (i.e. late fee)– Tender– Refusal– Warranty of habitability– Fair Debt Collection Practices Act; Bankruptcy

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Breach of Lease : Late Payments

• Multiple instances of late rent payment could potentially constitute good cause for eviction.

• Responses– Tender– Refusal to accept rent– Waiver (previously accepted late payments) – No harm to the housing provider


Breach of Lease: Unauthorized Occupants• While tenants can have short-term guests, issues arise when

the guest begins living in the unit without reporting the change in household composition.

• Responses – Person merely a guest• Show person has other residence, receives mail

elsewhere, etc.– Not a serious lease violation– Cure – Waiver (accepted rent knowing of additional occupant)


Breach of Lease: Disruptive Behavior • Other residents are entitled to live undisturbed in their units.

However, so-called “disruptive behavior” can arise from circumstances beyond control of the tenant, such as domestic violence, or mental disability.

• Responses– Isolated incident/ not serious violation– Domestic violence

• VAWA 2013– 42 U.S.C. § 14043e-11(b)

» Tenant who is a victim of DV cannot be evicted/terminated because he/she is a victim

» Victim cannot be evicted/terminated for “criminal activity” relating to DV


Breach of Lease: Disruptive Behavior – Domestic violence (cont.)• Fair Housing Act

– Evicting/terminating female survivors because of DV could constitute sex discrimination

– HUD Memo: http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdf

• CCP § 1161.3– LL cannot terminate tenancy because of DV

» Exception: Perpetrator cannot live in the same unit.

– Reasonable accommodation• Show link between disability and behavior (e.g., attack on

employee, smoking in unit)• Direct threat exception

– Accommodation that will mitigate threat

http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdf




Breach of Lease: Damaging the Property

• Responses– Damage is minor/part of normal wear & tear– Landlord failed to perform unit upkeep– Cure– Damage is the result of domestic violence/abuse• Fair Housing Act (sex discrimination)/see HUD memo• VAWA 2013• CCP § 1161.3

– Damage is result of mental disability (e.g., hoarding)• Reasonable accommodation to remedy


Unreported Income

• Tenants have an obligation to report changes in household income from new employment.

• Responses– Unintentional/mistake– Income is sporadic/temporary• 24 C.F.R. § 5.609(c)(9)

– Cure via repayment plan• HUD Notices H 2013-06; PIH 2010-19 (HA)

– Housing provider has inaccurate info


Failure to Pay Utilities

• Short-term disconnection of utilities is generally not a serious lease violation.

• Responses– Cure of the violation – One-time occurrence– Minor lease violation (not repeated)• Multifamily programs – HUD Handbook 4350.3, ¶ 8-13

– Inadequate utility allowance


Criminal Activity or Threatening Behavior• PHAs and landlords must use leases that allow for

termination of tenancy for criminal activity that is:– Drug-related;– Other criminal activity that threatens the health,

safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.

• The PHA may also terminate if a family member engages in alcohol abuse.

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Persons Covered

Criminal activity must be conducted by tenant, household member, or guest

Distinguish grounds for eviction from grounds for termination (for voucher): actions of guests not basis for termination

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Location of Criminal Activity

• Drug-related criminal activity:– Public housing: on or off the premises– HUD Multifamily: on or near– Voucher: on or near

• Violent criminal activity:– Voucher: on or near

• Other criminal activity:– Nexus requirement for all programs: must affect the

safety or quiet enjoyment of residents on the premises.

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Fraud/Misrepresentation

• Responses– No intent to mislead/commit fraud– Cure via repayment plan


ADMINISTRATIVE HEARINGS


Administrative Processes• Public housing– Grievance hearing

• Multifamily housing– Meeting with owner

• Voucher program– Informal hearing


Resources

• HUD Tenants Rights: HUD Programs (4th ed. 2012) (the Green Book)– Order at www.nhlp.org

• CEB Eviction Defense/Landlord Tenant Manual– Free access for new lawyers

• Rutter Group Landlord Tenant Manual• Questions?

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http://www.nhlp.org/


Questions? Contact:

Navneet [email protected]

(213)235-2625

Maria Palomares [email protected]

(818) 492-5242

Renee [email protected]

(415)546-7000

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mailto:[email protected]



Pathways to Justice Conference June 10 – 11, 2015 Speakers: Common Issues in Subsidized Housing...

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