Federally Subsidized Housing

Federally Subsidized Housing aetrahan Fri, 12/16/2022 - 11:07

Amanda Golob is the Supervising Attorney of Southeast Louisiana Legal Services’ (SLLS) New Orleans Housing Law Unit. Amythist Kearney is a Staff Attorney in the SLLS Hammond Housing-General Unit. Hannah Adams is a Staff Attorney in the SLLS Litigation and Advocacy Unit and Training Manager for the Right to Counsel program. Kristina Bison is a Staff Attorney in the SLLS New Orleans Housing Law Unit.

Material in this chapter is current through September 29, 2022.

1 Traditional/Conventional Public Housing

1 Traditional/Conventional Public Housing aetrahan Fri, 12/16/2022 - 11:08

1.1 Introduction

1.1 Introduction aetrahan Fri, 12/16/2022 - 11:08

The oldest and most widely known federal housing program is the conventional public housing program.1  Traditionally in this program, the housing is owned and administered by a local Public Housing Authority (PHA). Today, many conventional public housing units are owned and managed by third-party operators subject to a land lease and Regulatory and Operating Agreement with the PHA. The United States Department of Housing and Urban Development (HUD) enters into an Annual Contributions Contract with the local PHA. HUD must also provide operating subsidies. A PHA’s local policies are documented in its Admissions and Continued Occupancy Policy (ACOP).

In Louisiana, PHAs are political subdivisions of the state created under La. R.S. 40:381, et seq. A PHA is thus a governmental actor within the meaning of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. As a result, the Due Process and Equal Protection Clauses of the U.S. and Louisiana Constitutions apply to PHA actions. As recipients of federal funding, PHAs are also subject to Title VI of the Civil Rights Act and § 504 of the Rehabilitation Act. Many of their actions are also subject to the Fair Housing Act. Louisiana’s Administrative Procedure Act is not applicable to a PHA unless the PHA elects to be governed by it.2

In many areas, traditional public housing has been phased out in favor of newer programs such as the Section 8 Housing Choice Voucher Program and Low-Income Housing Tax Credit housing. Mixed-income communities in which only a portion of the units at a particular site are traditional public housing have also become more prevalent in recent years. Much of the nation’s public housing has been redeveloped as mixed-income through HUD initiatives, including the HOPE VI,3  Choice Neighborhoods Implementation Grant (CNI),4  and Rental Assistance Demonstration (RAD)5  programs.

Note that on January 1, 2024, certain changes go into effect pursuant to the Housing Opportunity Through Modernization Act (HOTMA). Some of these changes will be noted throughout, but it is important to check the current version of the regulation as you use this manual.


1.2 Eligibility

1.2 Eligibility aetrahan Fri, 12/16/2022 - 11:13

Tenants are eligible for public housing if their income does not exceed 80% of the area median income and their assets do not exceed the limits set by the local PHA.1  Traditional public housing is limited to citizens and certain categories of eligible non-citizens.2  Families with mixed immigration status may be eligible for prorated assistance.3

Statutory provisions aimed at income targeting and poverty deconcentration also affect eligibility for public housing. At least 40% of new admissions to public housing must be of families with incomes below 30% of the area median income.4  PHAs may reduce that 40% target under “fungibility provisions.” Under the fungibility rules, a PHA can reduce the number of such families admitted to public housing by one for each family admitted to the Section 8 Voucher programs with income below the income-targeting rules for the Voucher program. Lower-income families must not be concentrated into a certain development.5  Each PHA must develop an admission policy that will provide for the deconcentration of poverty by encouraging higher-income applicants to move into lower-income projects and admitting lower-income applicants to higher-income projects.6  A PHA can offer incentives for higher-income families to move to lower-income projects. It may skip over applicants on the waiting list until it reaches a family that will accept the incentives. If it is necessary to achieve deconcentration, skipping may be mandatory.

  • 1See 24 C.F.R. § 5.603 (defining “low income family”).
  • 224 C.F.R. § 5.506.
  • 324 C.F.R. §§ 5.516, .518.
  • 442 U.S.C. § 1437n(a)(2)(A).
  • 542 U.S.C. § 1437n(a)(3).
  • 642 U.S.C. § 1437n(a)(3)(B).

1.3 Admission Preferences

1.3 Admission Preferences aetrahan Fri, 12/16/2022 - 11:15

Congress has now permanently repealed all former federal preferences for public housing. However, PHAs are still allowed to develop and implement local preferences, including residency preferences.1  Any such preferences should be consistent with the local area’s Consolidated Plan and be based upon local housing needs and priorities. Common preferences include those for domestic violence survivors, people experiencing homelessness, seniors, those with disabilities, and working families. If a preference for working families is given, this preference must be extended to families where the head (and spouse when applicable) are elderly or disabled.2

  • 1But see Langlois v. Abington Hous. Auth., 207 F.3d 43 (1st Cir. 2002) (finding that local residency preference violated the Fair Housing Act under a disparate impact theory).
  • 224 C.F.R. § 960.206(b)(2).

1.4 Denial of Admission

1.4 Denial of Admission aetrahan Fri, 12/16/2022 - 11:16

1.4.1 Basic Principles

1.4.1 Basic Principles aetrahan Fri, 12/16/2022 - 11:17

PHAs can deny applicants for admission for objective and reasonable reasons, but must still comply with fair housing and civil rights laws. If an applicant is rejected, the PHA must give the applicant written notification of the factual grounds for the denial and of the right to an informal hearing to contest the denial.1  This notification must contain enough detail so that the applicant can understand the reasons for the denial. If the denial is based on criminal activity, the PHA must provide the applicant with a copy the information the PHA used to determine that the criminal activity took place.2  

The informal hearing must be before a person other than the individual who made the decision to reject the applicant. This type of hearing is not governed by the PHA’s grievance procedure.3

  • 124 C.F.R. § 960.208(a).
  • 224 C.F.R. § 960.204(c).
  • 324 C.F.R. § 960.208(a).

1.4.2 Criminal Record

1.4.2 Criminal Record aetrahan Fri, 12/16/2022 - 11:26

A criminal record or activity may be grounds for denial of admission to public housing. Federal regulations provide that a history of criminal activity involving crimes of physical violence and other criminal acts may be used to reject an applicant. If a PHA receives unfavorable information with respect to an applicant, it must consider the time, nature, and extent of the applicant’s conduct as well as factors that might indicate a reasonable probability of favorable future conduct such as evidence of rehabilitation, the family’s willingness to participate in social services or other appropriate counseling programs, and the family’s willingness to increase family income.1  When contesting whether a criminal conviction should be grounds for denying admission, be sure to bring to the informal hearing any evidence of mitigating factors such as certificates of completion of a drug rehabilitation or recovery program or letters from probation or parole officers, employers, ministers, etc. Blanket criminal background screening policies may also violate the Fair Housing Act.2

HUD policies in the last decade favor giving ex-offenders greater opportunity to access public housing. In June 2011, HUD Secretary Shaun Donovan issued a letter to all PHAs encouraging them to allow ex-offenders to rejoin their families when possible.3  A November 2015 program letter affirmed that HUD does not require public housing providers to adopt “one strike” policies and that an arrest is not sufficient evidence of criminal activity to support either denying admission or terminating assistance.4  In addition, HUD guidance issued in 2016 and 2022 spells out how admissions policies that exclude people with criminal records may violate the Fair Housing Act.5  Nevertheless, PHAs must deny admission to applicants currently illegally using drugs,6  as well as those who have been convicted of the production of methamphetamines or who are on the lifetime sex offender list.7

Although arrests or arrest records are insufficient to deny admission, they can be used as evidence that the arrestee engaged in criminal activity.8  When determining whether a person who was arrested for disqualifying criminal activity actually engaged in that activity, PHAs may consider, among other things: police reports that detail the circumstances of the arrest; statements made by witnesses or by the applicant or tenant that are not part of the police report; whether formal criminal charges were filed; whether any charges were ultimately withdrawn, abandoned, dismissed, or resulted in an acquittal; and any other relevant evidence.9

The Housing Authority of New Orleans (HANO) has a progressive criminal background screening policy that limits automatic denial to applicants who have been convicted of production of methamphetamines or are on the lifetime sex offender list. Other applicants are sent through a further review process based on the nature of the criminal conviction and the time since it occurred. As part of this process, applicants can provide evidence of the facts and circumstances surrounding the conviction, evidence of good tenant and employment history, and evidence of rehabilitation and community support. No applications will be denied based on arrest alone. This policy also applies to some but not all privately-controlled public housing properties.

Any private third-party public housing provider that also receives a Low-Income Housing Tax Credit (LIHTC) subsidy must comply with the Louisiana Housing Corporation criminal background screening policy for LIHTC recipients.10

1.4.3 Prior Eviction for Drug-Related Activity

1.4.3 Prior Eviction for Drug-Related Activity aetrahan Fri, 12/16/2022 - 11:40

Federal law requires PHAs to reject applicants who have been evicted from federally funded housing programs for drug-related criminal activity for a 3-year period following the date of such an eviction. There are two exceptions: a) the evicted household member has completed a rehabilitation program; or b) the circumstances leading to the eviction no longer exist (e.g., the household member whose conduct led to the eviction has died or is in prison).1  PHAs may extend the 3-year ban at their discretion. Negotiating a consent judgment rather than a judgment of eviction may help prevent future negative repercussions under this provision.2

  • 124 C.F.R. § 960.204(a)(1).
  • 2Note that a PHA’s reliance on the judgment as conclusive proof of drug-related criminal activity constitutes offensive collateral estoppel by a non-party. Such an extreme use of preclusion is unsupported by Louisiana precedent. See Alonzo v. State, 2002-0527, p. 9 (La. App. 4 Cir. 9/8/04); 884 So. 2d 634, 639.

1.4.4 Debt Owed to the PHA

1.4.4 Debt Owed to the PHA aetrahan Fri, 12/16/2022 - 11:42

PHAs will often reject applicants who owe debts to the PHA. In Louisiana, actions to collect rent or debts on an open account have a 3-year prescriptive period.1  If an applicant formerly lived in public or Section 8 housing and has a debt older than 3 years, the debt has prescribed and cannot serve as a valid basis for rejection.

PHAs (sometimes) and private third-party operators (often) will report debts against former tenants that include contested damages and other charges. To tackle this issue, the tenant may present evidence to the new PHA that the charges are invalid, challenge the charges directly with the previous PHA, contest the charges through a dispute with the credit reporting agency, or even sue to reduce or settle the reported debt. Note that PHAs report debts to the PIH Information Center (PIC) in addition to traditional credit reporting agencies. Other PHAs can see the debt through the PIC system.

  • 1La. C.C. art. 3494.

1.4.5 Disability

1.4.5 Disability aetrahan Fri, 12/16/2022 - 11:43

Under the Fair Housing Amendments Act, § 504 of the Rehabilitation Act, and the Americans with Disabilities Act, public housing providers must consider reasonable accommodation requests for admission if an applicant with a disability is denied admission for a reason related to the applicant’s disability.1  

  • 1For further discussion, see Section 13.5.2 of this manual's chapter on landlord-tenant law.

1.4.6 Domestic Violence

1.4.6 Domestic Violence aetrahan Fri, 12/16/2022 - 11:44

Under the Violence Against Women Act, PHAs may not use an individual’s status as a survivor of domestic violence, dating violence, sexual assault, or stalking as a basis to deny admission to public housing.1  Similarly, a denial may not be based on any incident or activity related to domestic violence, dating violence, sexual assault, or stalking. This may include adverse factors such as a poor rental or credit history that is a direct result of being a survivor.2

  • 124 C.F.R. § 5.2005(b); see also Section 1.7 of this manual's chapter on landlord-tenant law.
  • 2Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs, 81 Fed. Reg. 80,724, 80,728­–29 (Nov. 16, 2016).

1.5 Rent Computation

1.5 Rent Computation aetrahan Fri, 12/16/2022 - 11:45

1.5.1 Basic Principles

1.5.1 Basic Principles aetrahan Fri, 12/16/2022 - 11:45

Until changes were made to federal law, a public housing tenant’s rent was 30% of the tenant’s annual adjusted income. “Annual income” for federal housing programs is defined at 24 C.F.R. § 5.609. Most public housing tenants are still charged rent based on 30% of their income.

Although rent may be reduced if a tenant’s income decreases, a reduction is not allowed if the income loss is due to welfare work sanctions. A rent reduction may not be withheld until the welfare department notifies the PHA in writing that the loss of income was due to work sanctions and until the tenant has a chance for a grievance. If the loss of welfare arises from the exhaustion of time limits or occurs because the tenant could not find a job despite compliance with the welfare agency’s requirements, the tenant must be allowed the rent reduction.1  A tenant may also request an exemption to minimum rent if one is applicable.

When computing rent, you should closely scrutinize the deductions and exclusions at 24 C.F.R. §§ 5.603–.634 (especially sections 5.609 and 5.611). Check to see if the PHA gave the proper credits or deductions for medical expenses; childcare expenses; allowances for elderly, disabled, or minor family members; training income; and earned income exclusions. Because there are so many deductions and exclusions and HUD knows PHAs make many mistakes, there is a movement to change the way rents are calculated. This movement is called “Rent Simplification.”

Under the current rent rules, a public housing tenant’s rent is calculated in the following way:

STEP 1— Compute all non-exempt income for the entire family for the year to get annual income.

STEP 2 — Subtract all eligible deductions for the family to get adjusted income.

STEP 3 — Divide the adjusted income figure by 12 to get a monthly adjusted income.

STEP 4 — Multiply the monthly adjusted income by 30% if the family pays income-based rent.

This is how much the family pays for its share of rent if the family does not pay its own utilities. If the family pays for its own utilities, go to STEP 5:

STEP 5 — Subtract the utility allowance that the PHA uses for the family’s bedroom size and utility type from the number in STEP 4.2

It can be very costly for a low-income tenant whose rent is not calculated correctly. The most commonly missed deductions are for childcare and medical expenses.

  • 142 U.S.C. § 1437j(d)(2).
  • 2See Haywood v. Chi. Hous. Auth., 212 F. Supp. 3d 735 (N.D. Ill. 2016) (holding that an applicant had a private right of action to challenge a public housing authority’s determination that an applicant cannot fully deduct utility payments made to a third-party provider from the rent computation).

1.5.2 Childcare Expense Deduction

1.5.2 Childcare Expense Deduction aetrahan Fri, 12/16/2022 - 11:48

Childcare expenses may be deducted from a tenant’s annual income if the childcare is needed so that a member of the household can work. Even if there are other members of the household available to watch the child, this deduction can still be taken. Receipts or other documentation from the childcare provider may be requested. Check your local PHA’s administrative plan any documentation requirements.

For example, suppose that Mary is a public housing tenant making $800 per month at her minimum wage job. She lives in a unit where she does not pay for any of her own utilities. She has two children ages 3 and 6. She pays childcare expenses of $75 per week.

Rent computed without the childcare expense deduction:

Annual Income: $800 x 12 = $9,600
Minor Deductions: $480 x 2 = $960
Adjusted Income: $9,600 - $960 = $8,640
Adjusted Monthly Income (AMI): $8,640 / 12 = $720
Rent at 30% of AMI: $720 x .30 = $216

Rent computed with the childcare expense deduction saves Mary $97 per month:

Annual Income: $800 x 12 =  $9,600
Minor Deductions: $480 x 2 = $960
Childcare Deductions: $75 x 52 = $3,900
Adjusted Income: $9,600 - $960 - $3,900 = $4,740
Adjusted Monthly Income (AMI): $4,740 / 12 = $395
Rent at 30% of AMI: $395 x .30 =  $119

1.5.3 Medical Expense Deduction

1.5.3 Medical Expense Deduction aetrahan Fri, 12/16/2022 - 11:49

Families are eligible for a medical expense exclusion from their annual income, and a medical expense deduction from their adjusted annual income. It is important to remember the difference between these two provisions.

The exclusion states that money received specifically for, or in reimbursement of, medical expenses are excluded from annual income.1

After annual income is calculated, the medical expense deduction only applies if the annual expected medical expenses exceed 3% of the tenant’s annual income. The deduction is the difference between the expenses and 3% of the annual income.2  Note that on January 1, 2024 certain changes go into effect pursuant to the Housing Opportunity Through Modernization Act (HOTMA). 24 CFR 5.611 will be changed to raise the threshold for the medical expense deduction to 10%. This change will be phased in over time.

For example, suppose that Mary is a grandmother with disabilities raising two minor grandchildren in public housing. Her income is $862 per month in disability benefits. Over the next year, she projects to have unreimbursed medical expenses of approximately $200 per month for doctor co-pays, prescription copays, medical transportation, and health insurance (for which over $100 a month is often withheld from Social Security payments).

Rent computed without the medical expense deduction:

Annual Income:                                    $862 x 12 = $10,344

Disability Deduction:                           $400

Minor Deductions:                               $480 x 2 = $960

Adjusted Income:                                 $10,344 - $400 - $480 = $8984

Adjusted Monthly Income (AMI):    $5384/12 = $749

Rent at 30% of AMI:                            $449 x .30 = $225

Rent computed with the medical expense deduction:

Annual Income:                                   $862 x 12 = $10,344

Disability Deduction:                         $400

Minor Deductions:                             $480 x 2 = $960

Medical Expenses:                              $200 x 12 = $2400

3% of Gross Income:                          $10,344 x .03 = $310

Medical Deduction:                            $2400 - $310 = $2,090

Adjusted Income:                                $10,344 - $400 - $480 - $2,090 = $7,374

Adjusted Monthly Income (AMI):    $7,374/12 = $614.50  

Rent at 30% of AMI:                            $614.50 x .30 = $184.35

  • 124 C.F.R. § 5.609(c)(4).
  • 224 C.F.R. § 5.611(a)(3).

1.5.4 Minimum Rents and Flat Rents

1.5.4 Minimum Rents and Flat Rents aetrahan Fri, 12/16/2022 - 11:52

Changes to federal law now allow rents to be set at levels other than the traditional 30% of adjusted income. The law requires PHAs to impose minimum rents of up to $50 per month. Hardship exemptions are allowed; grounds include a household’s inability to pay the minimum rent due to a loss of government assistance, a household’s facing eviction due to an inability to pay the minimum rent, and other reasons as determined by the PHA.

PHAs are required to notify households of the possible exemptions and to suspend charging minimum rents to households that request an exemption. If there is long-term (i.e., over 90 days) hardship, an exemption should be granted. If the hardship is only temporary, the PHA should offer the tenant a reasonable repayment plan for any suspended rents or missed payments.1

PHAs can also opt to charge a rent based upon the “rental value” of the unit instead of the tenant’s income. This type of rent is called a “flat rent.” A tenant is given an annual choice to either pay a flat rent or an income-based rent. PHAs must advise tenants in writing of the amount of the income-based rent and the flat rent. If a flat rent is chosen and the resident has a loss of income, the resident can request a switch to income-based rent.2  Tenants paying a flat rent cannot receive a utility allowance.3

  • 142 U.S.C. § 1437a(a)(3); 24 C.F.R. § 5.630.
  • 224 C.F.R. § 960.253(f).
  • 324 C.F.R. § 960.253.

1.5.5 Rent Changes

1.5.5 Rent Changes aetrahan Fri, 12/16/2022 - 11:53

A public housing tenant’s income is recertified annually at which time rent is also recalculated. If a tenant’s income changes between annual recertifications, the tenant typically must report this to the PHA within 10 days of the change. At that point an interim recertification may take place. If the change decreases the household income, the reduced rent becomes effective the next calendar month. So, if a decrease is reported in May, the new rent is effective in June. If the change increases household income, the change in rent becomes effective two months later. So, if the increase is reported in May, the new tenant portion is effective in July.

Public housing residents are currently entitled to an earned income disallowance (also known as an earned income disregard) in certain instances where they begin working after a year of functional unemployment. During the first year of having earned income, their income is completely excluded. During the second year, 50% of their earned income is excluded.1

Note that on January 1, 2024, certain changes go into effect pursuant to the Housing Opportunity Through Modernization Act (HOTMA). Under the new rules, PHAs are only required to conduct interim reexaminations if income change will cause the family’s adjusted annual income to increase or decrease by 10%. PHAs may not consider any increase in the earned income of a family between annual reexaminations, except that the PHA may establish a written policy allowing it to consider increases in earned income if the PHA has previously processed an interim reexamination for a decrease.2  Also note that the earned income disallowance described above is being phased out from 2024-2030 under HOTMA. The change will be reflected in the new version of 24 C.F.R. § 960.255 that takes effect January 1, 2024.

  • 124 C.F.R. § 960.255.
  • 224 C.F.R. § 960.257(b).

1.6 Grievance Procedure

1.6 Grievance Procedure aetrahan Fri, 12/16/2022 - 11:53

The right to a grievance procedure is one of the most important advantages that a public housing tenant has over other federally subsidized and private tenants. All PHAs must establish a grievance procedure that affords a tenant the opportunity for an informal grievance meeting and a formal grievance hearing. This procedure is available whenever a tenant disputes any PHA act or a failure to act, except for certain types of evictions (e.g., drug-related or criminal-activity terminations) and class grievances.1

Note that the federal regulations formerly required tenants to escrow rent when a grievance involved a rent dispute. However, that regulation was eliminated in 2016. If a PHA has a policy that still requires rent to be escrowed, you should argue that the HUD regulation was eliminated and that the PHA’s policy should be updated.2

A tenant must present the grievance to the project manager or someone else at the main office and discuss the grievance informally.3  The manager then prepares a summary of the discussion and gives a copy to the tenant.4  If the tenant is not satisfied with the result, the tenant may request a formal hearing within a reasonable time after receiving the written decision.5  You should consult the individual PHA grievance policy or Admissions and Continued Occupancy Policy (ACOP) for specific rules governing the grievance hearing process. The written request must state the reason for the request and the specific relief sought.6

Tenants are not entitled to use the PHA grievance process to contest proposed evictions for criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA; violent or drug-related criminal activity on or off such premises; or criminal activity that resulted in felony conviction of a household member if the PHA has decided to exclude such matters from the grievance process and HUD has determined that the state’s eviction court procedures satisfy due process.7  Sometimes these evictions are called “one strike” evictions.

In the case of an eviction, the PHA or public housing provider must notify the tenant of their right to a grievance or, in the case of one strike evictions, that a grievance is not available.8  The PHA may not continue with the eviction process until the time for requesting a hearing has elapsed.9  If the tenant timely requests a grievance, the eviction is indefinitely suspended until the completion of the hearing process. A tenant has the right to review all relevant PHA documents prior to the hearing, to confront and cross-examine witnesses, to have the assistance of an advocate at the hearing, and to have the hearing in public or private upon request.10  The tenant is entitled to a written decision, which generally binds the PHA unless the decision is contrary to law.11

You should use the informal and formal grievance process when available for eviction proceedings, disputes over rent or other charges such as maintenance fees, transfer disputes, and repairs. You may often experience lengthy delays in getting an informal grievance, getting a written decision from the informal grievance, and getting a date set promptly for a formal grievance hearing. The grievance process can be used in conjunction with a request for rent abatement.

Under current law, failure to provide a grievance process prior to termination gives rise to a § 1983 cause of action for violation of 42 U.S.C. § 1437d(k), the grievance provision.12  There may also be a § 1983 cause of action for violation of the Due Process Clause.

  • 124 C.F.R. § 966.51.
  • 2See 81 Fed. Reg. 12354-01 (March 8, 2016) (removing 24 C.F.R. § 966.55).
  • 324 C.F.R. § 966.54.
  • 4Id.
  • 524 C.F.R. § 966.56.
  • 624 C.F.R. § 966.55.
  • 724 C.F.R. § 966.51(a)(2)(i).
  • 824 C.F.R. § 966.4(l)(3).
  • 924 C.F.R. § 966.4(l)(3)(iv).
  • 1042 U.S.C. §1437d(k); 24 C.F.R. § 966.4(m), .56.
  • 1124 C.F.R. §§ 955.56–.57.
  • 12Stevenson v. Willis, 579 F. Supp. 2d 913, 923 (N.D. Ohio 2008); Conway v. Hous. Auth. of City of Asheville, 239 F. Supp. 2d 593, 599 (W.D.N.C. 2002); Gammons v. Mass. Dep’t of Hous. & Cmty. Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007). Advocates should be sure to follow developments in the law that may limit use of § 1983 to enforce federal rights.

1.7 Eviction from Public Housing

1.7 Eviction from Public Housing aetrahan Fri, 12/16/2022 - 12:00

1.7.1 Basic Principles

1.7.1 Basic Principles aetrahan Mon, 01/23/2023 - 11:41

A public housing tenant may only be evicted for serious or repeated lease violations, being over income for the program, or “other good cause.”1  Good cause is always required to evict or to refuse to renew a lease except when a tenant refuses to comply with Community Service Work requirements.2  Criminal activity, drug-related activity, and the illegal use of drugs or abuse of alcohol may also be grounds for eviction.

  • 124 C.F.R. § 966.4(l).
  • 242 U.S.C. § 1437d(l)(1); 24 C.F.R. § 966.4(l)(2).

1.7.2 Procedure

1.7.2 Procedure aetrahan Mon, 01/23/2023 - 11:43

In order to evict, a PHA must give written notice as required by state and federal law.1   In the case of nonpayment of rent, 14-day notice is typically required.2  However, as of November 8, 2021 and until rescinded by HUD, 30 days’ notice is required for eviction for nonpayment of rent from public housing, and the notice must include information about available rental assistance.3

A reasonable time not to exceed 30 days is required if the health or safety of other residents, PHA employees, or persons residing in the immediate vicinity of the premises is threatened; if a household member has engaged in drug-related or violent criminal activity; or if a household member has been convicted of a felony. In all other cases, 30 days is required unless state law allows for a shorter period.4  In Louisiana, this means that eviction proceedings against a public housing tenant for any violation other than nonpayment of rent could be instituted upon a 5-day notice to vacate.5  Any notice of lease termination required by state law may be combined with or run concurrently with the PHA’s notice of lease termination.

The notice must be served by delivering a copy to an adult member of the household residing in the dwelling or by prepaid first-class mail properly addressed to the tenant.6  Service by tacking of a notice of lease termination to a public housing tenant could be challenged as inadequate notice and a violation of due process.7

The notice must state the specific grounds for lease termination with enough detail for the tenant to understand the reason for eviction and must inform the tenant of the right to make a reply, the right to examine PHA documents, the right to a grievance hearing if applicable, and the right to representation. When a PHA is not required to have a grievance hearing, such as in certain criminal or drug-related evictions, the PHA must nevertheless: advise the tenant whether the eviction is for criminal activity or drug-related activity; advise the tenant of the specific judicial procedure to be used by the PHA for eviction; and state that HUD has determined that such procedure complies with due process.8

HUD regulations further provide that in deciding whether to evict for criminal or drug-related activity, a PHA still has discretion not to evict after considering all of the circumstances of the case, such as the seriousness of the offense, the extent of participation by the leaseholder in the offense, the effects of an eviction on those not involved in the offending activity, and the steps the family has taken to accept personal responsibility and to prevent the activity from occurring in the future.9  A PHA may also allow continued occupancy for certain family members provided that those family members who engaged in the proscribed criminal activity are no longer allowed in the unit.

After the notice period, the PHA must file a rule for possession in the appropriate court.10  At the eviction hearing, the PHA must prove the existence of a lease and of the violation by a preponderance of the evidence. Prior to trial, you should request and review the tenant’s folder, subpoena documents and witnesses as necessary, file a verified answer with any applicable affirmative defense, file a supporting memorandum, and take advantage of the grievance process if available.11  In the case of an eviction for criminal activity, an advocate should check the criminal case as charges are frequently dropped or not prosecuted or the party charged with criminal activity may have been acquitted. Even though these circumstances make it unlikely that a PHA can prove its case, a PHA will often continue to proceed with the eviction.

  • 1Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268 (1969).
  • 224 C.F.R. 966.4(l)(3).
  • 324 C.F.R. § 966.8; Supplemental Guidance to the Interim Final Rule “Extension of Time and Required Disclosures for Notification of Nonpayment of Rent", Notice PIH 2021-29, H 2021-06 (Oct. 7, 2021).
  • 442 U.S.C. § 1437d(l)(4); 24 C.F.R. § 966.4(l)(3).
  • 5On the notice required in Louisiana landlord-tenant law, see Section 3.2 of this manual's chapter on landlord-tenant law.
  • 624 C.F.R. § 966.4(k)(1)(I).
  • 7For further discussion of defending an eviction where notice was provided by tacking, see Section 3.3 of this manual's chapter on landlord-tenant law.
  • 824 C.F.R. § 966.4(l)(3)(v).
  • 924 C.F.R. § 966.4(l)(5)(vii)(B).
  • 1024 C.F.R.§ 966.4(l)(4).
  • 11Hous. Auth. of New Orleans v. Haynes, 2014-1349, p. 5 (La. App. 4 Cir. 05/13/15), 172 So. 3d 91, 94 (public housing provider improperly classified eviction as “one strike” and denied grievance prior to filing eviction).

1.7.3 Criminal Activity

1.7.3 Criminal Activity aetrahan Mon, 01/23/2023 - 11:48

PHAs have been directed by Congress to use leases that allow for “one-strike” evictions for criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, violent or drug-related criminal activity on or off the premises, and criminal activity resulting in a felony conviction.1  To be grounds for eviction, criminal activity must threaten other tenants’ wellbeing, but drug-related criminal activity does not have to do so. The criminal or drug-related activity must have been engaged in by the “public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control.”2  If the PHA has decided to exclude “one strike” criminal activity from the grievance process, tenants are not entitled to use that process to contest such evictions.3  Advocates should be aware that public housing providers often try to fit allegations that do not qualify under the specific criteria laid out above into the “one strike” grievance exception.

PHAs must also provide in their leases that tenancies can be terminated if a member of the household is fleeing from a felony prosecution or conviction or is violating probation or parole.4  However, a tenant cannot be evicted for a guest’s criminal activity if it occurred prior to the tenant’s current lease term5  or if the alleged criminal activity constitutes domestic violence and the tenant was the victim.6

LSC-funded attorneys may not represent in a public housing eviction a person convicted of or charged with certain drug crimes if the criminal activity threatens the health or safety of public housing residents or employees.7  However, such attorneys may represent an individual facing eviction because a family member was convicted of or charged with a drug crime.

To evict on grounds of criminal activity, the PHA must prove that the activity occurred. Although a conviction is not required, if the PHA seeks to prove the criminal activity with evidence of a conviction, the PHA must provide the tenant with a copy of the criminal record in advance of the grievance hearing or court trial.8  An arrest is not itself evidence of criminal activity,9  but evidence that led to the arrest may be used to establish that criminal conduct occurred. Some courts have even granted one-strike evictions when there was no arrest. However, a police report alone does not satisfy the PHA’s evidentiary burden.10

HUD regulations include as good cause for eviction criminal or other activity that threatens the health or safety of people who reside in the immediate vicinity of the premises, even those who are not public housing residents.11  This appears contrary to the controlling statutory language, except with respect to drug-related criminal activity. Under the statute, criminal activity is grounds for eviction only if it threatens the “health, safety or right to peaceful enjoyment of the premises by other tenants.”12  Given this language, it does not appear that Congress intended to protect non-public housing residents residing in the immediate vicinity of the premises.

Drug or alcohol use even in the absence of criminal activity may also be grounds for eviction. PHA leases must provide that the tenancy may be terminated for any household with a member who is illegally using a controlled substance or whose illegal use of a controlled substance or abuse of alcohol interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.13  If the household member is no longer engaging in the illegal use of a controlled substance or abuse of alcohol, the PHA may factor into its decision the household member’s participation in or completion of a supervised drug- or alcohol-rehabilitation program or other evidence of rehabilitation.14  Past use of drugs and alcohol may be considered a disability under fair housing laws.

The United States Supreme Court has ruled that lease provisions allowing eviction for criminal activity are constitutional and that there is no requirement that a tenant have knowledge of the alleged activity for it to be a lease violation.15  Nevertheless, the Court did not hold that eviction is mandatory in this situation. After this ruling, HUD issued two letters to all PHAs informing them that PHAs are not required to evict in these circumstances. According to HUD, “such evictions often do more harm than good,” and “eviction should be a last resort.”16  HUD’s regulation provides:

In a manner consistent with such policies, procedures, and practices, the PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity, and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action. The PHA may require a tenant to exclude a household member in order to continue to reside in the unit where that household member has participated in or been culpable for action or failure to act that warrants termination.17

This equitable approach is supported by the legislative history of the 1990 amendments to this statute in the Cranston-Gonzales Affordable Housing Act. For example, the accompanying Senate Report specified that criminal activity is grounds for eviction of public housing residents only if eviction is appropriate in light of all the facts and circumstances. The report states that each case should be judged on its merits, with the exercise of wise and humane judgment by the PHA and the eviction court. The report gives as an example of an inappropriate eviction one in which the tenant had no knowledge of guests’ criminal activity or had taken reasonable steps to prevent it.18

  • 142 U.S.C. § 1437d(k).
  • 242 U.S.C. § 1437d(l)(6); see Hous. Auth. of New Orleans v. Green, 94-CV-1650 (La. App. 4th Cir. 1995), 657 So. 2d 552.
  • 324 C.F.R. § 966.51(2)(a).
  • 442 U.S.C. § 1437d(l)(9); 24 C.F.R. § 966.4(l)(5)(ii)(B).
  • 5Wellston Hous. Auth. v. Murphy, No. ED 83156, 2004 WL 555610 (Mo. Ct. App. Mar. 23, 2004); see also Boston Hous. Auth. v. Bruno, 790 N.E.2d 1121 (Mass. Ct. App. 2003) (holding that a PHA cannot shift on appeal to a theory that the offender was a guest after losing on its claim that the offender was a member of the household).
  • 6La. R.S. 40:506(D); see also 34 U.S.C. § 12491(b)(3).
  • 745 C.F.R. § 1633.
  • 824 C.F.R. § 966.4(l)(5)(iv).
  • 9United States v. Johnson, 648 F.3d 273 (5th Cir. 2011); United States v. Labarbera, 581 F.2d 107 (5th Cir. 1978); Landers v. Chi. Hous. Auth., 936 N.E.2d 735 (Ill. App. Ct. 2010); Bratcher v. Hous. Auth. of City of Milwaukee, 787 N.W.2d 418 (Wis. Ct. App. 2010); Pratt v. Hous. Auth. for City of Camden, No. 05-0544(NLH), 2006 WL 2792784 (D.N.J. Sept. 27, 2006).
  • 10La. C.E. art. 803(8)(b)(i), (iv) (police reports inadmissible); Hous. Auth. of New Orleans v. King, 2012-1372, p. 5 (La. App. 4 Cir. 06/12/13), 119 So. 3d 839, 842 (eviction that relied on inadmissible police report was reversed); State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So. 2d 76, 84; Deville v. Aetna Ins. Co., 191 So. 2d 324, 328 (La. App. 3 Cir. 1966); see also State v. Cockerham, 522 So. 2d 1245, 1247 (La. App. 4 Cir. 1988).
  • 1124 C.F.R. § 966.4(l)(2)(iii)(A).
  • 1242 U.S.C. § 1437d(l)(6) (emphasis added).
  • 13See 42 U.S.C. § 13662; 24 C.F.R. § 966.4(l)(5)(vi).
  • 1424 C.F.R. § 966.4(l)(5)(vi).
  • 15U.S. Dep’t of Hous. & Urb. Dev. v. Rucker, 535 U.S. 125 (2002).
  • 16Letter from Mel Martinez, Sec’y of U.S. Dep’t of Hou. & Urb. Dev., to Pub. Hous. Dirs. (April 16, 2002), https://www.nhlp.org/wp-content/uploads/Ltr-from-Mel-Martinez-HUD-Secy-to-Pub-Hous-Dirs-Apr.-16-2002-1.pdf; see also Letter from Micheal M. Liu, Assistant Sec’y of U.S. Dep’t of Hous. & Urb. Dev., to Pub. Hous. Dirs. (June 6, 2002).
  • 1724 C.F.R. § 966.4(l)(5)(vii)(B).
  • 18S. Rep. No. 101-316 (1990).

1.7.4 Practice Tips

1.7.4 Practice Tips aetrahan Mon, 01/23/2023 - 11:58

When assisting a public housing tenant facing eviction, request a meeting with the PHA’s legal or other representative. Often, these individuals are willing to negotiate and either remove the problematic household member from the lease, thus allowing the other household members to remain, or allow a probationary period. If a tenant successfully completes this probationary period by complying with all of the tenant obligations, the tenant will not be evicted. A probationary period agreement can be entered into the court record as a consent agreement.

While the case is pending, you should have the tenant deposit the rent into a PHA escrow account or into your client trust account. PHAs will usually not accept rent from a tenant once a decision has been made to evict. Particularly with drug or criminal activity evictions, which may last several months, it is important that the rent be deposited in a safe place in the event that a settlement is reached or a favorable judgment obtained. If the tenant has not been putting the rent aside pending the outcome of the eviction case, you may have stopped an eviction based on the lease violation only to find your client evicted for nonpayment of the accrued rent.

1.8 Community Service Requirement

1.8 Community Service Requirement aetrahan Mon, 01/23/2023 - 11:59

Each PHA must require all adult public housing tenants, not just heads of household, to give 8 hours per month of service to the community in which they reside, unless they meet one of several exceptions.1  Residents can also perform “economic self-sufficiency” activities instead of community service.2  PHAs must address the community service work requirement in their PHA plan.

A nonexempt family member’s violation of the community work requirements prevents automatic renewal of the lease at the end of the standard 12-month term.3  Noncompliance at lease expiration can lead to eviction unless the tenant and noncomplying family member sign an agreement to cure the noncompliance within subsequent 12 months or the noncomplying adult leaves the household.4  The head of household cannot make up hours for the noncompliant household member. A family retains its rights to an administrative grievance if found to be noncompliant.

Exempt tenants include but are not limited to those aged 62 or over, blind, or disabled; primary caretakers of persons who are blind or disabled; and those engaged in “work activities” under the TANF definition or who are exempt from work requirements under the state TANF program.

The PHA must provide a general notice to all residents of the community service work requirement along with a description of the exemptions and permissible work activities. The notice must also state the date by which a resident must start doing community service. This date is generally the recertification date.

  • 142 U.S.C. § 1437j(c).
  • 224 C.F.R. § 5.603.
  • 324 C.F.R. § 966.4(a)(2).
  • 424 C.F.R. §§ 960.601(b), .607(b).

1.9 Abatement

1.9 Abatement aetrahan Mon, 01/23/2023 - 13:38

Where a public housing unit has defects that are hazardous to life, health, or safety, the PHA is responsible for repairing the unit in a reasonable period of time. If repairs cannot be made in a reasonable time, the tenant must be provided with standard alternative accommodations, if available. If repairs are not made in a reasonable time and accommodations are not provided, the tenant is entitled to an abatement of rent “in proportion to the seriousness of the damage and loss in value as a dwelling.”1

  • 124 C.F.R. § 966.4(h).

2 Section 8 Housing Choice Voucher Program

2 Section 8 Housing Choice Voucher Program aetrahan Mon, 01/23/2023 - 13:38

2.1 Introduction

2.1 Introduction aetrahan Mon, 01/23/2023 - 13:39

Although traditional public housing may be more familiar to the public, since the Housing and Community Development Act of 1974, the Section 8 Housing Choice Voucher Program (HCVP) has become the primary vehicle for the federal government’s efforts to provide an adequate supply of low-income housing. In the HCVP, families receive a federal rental subsidy to assist them in locating and being able to afford decent, safe, and sanitary housing on the private market.

The HCVP is generally administered by the local Public Housing Authority (PHA).1  Therefore, it is important when embarking on any representation or advocacy involving the HCVP to determine and locate the local PHA with jurisdiction over the region in which your work is directed. The PHA must adopt a written Administrative Plan that establishes local policies for administration of the program in accordance with HUD requirements. The Administrative Plan must be made available for public review; contact your local PHA and get a copy of its plan to keep as a reference for all disputes you may have under the HCVP program.2

The plan will address selection and admission of new tenants, establishment and administration of the waitlist, extensions and suspensions of the voucher search period, occupancy policies, termination or denial of assistance based on criminal activity and other grounds, promotion of new areas for low-income housing, assistance to families claiming to have been illegally discriminated against in housing, disapproval of owners, absence of family members from the unit, informal review procedures, repayment of monies owed by family back to PHA, Housing Quality Standards, inspection guidelines, and more.3

2.2 Eligibility

2.2 Eligibility aetrahan Mon, 01/23/2023 - 13:44

To be eligible for a Section 8 subsidy, a participant must be “income-eligible.”1  Unless HUD grants special approval, at least 75% of the subsidies awarded by a PHA in any fiscal year must be awarded to participants who qualify as extremely low income (i.e., income that does not exceed 30% of the Area Median Income).2

Admission is usually done by wait list due to the overwhelming need for affordable housing and the desirability of the Section 8 program, which allows tenants some measure of control in choosing where to live. A person may be on multiple PHA waiting lists in different areas and is not barred from applying if they are already receiving some housing subsidy; if they are granted admission to HCVP, they must then relinquish any other housing subsidy. The PHA must delineate the system of admission preferences that the PHA uses to select applicants from the waiting list, including any residency or other local preference.

Admission can also be granted through special “non-wait list” admissions when funds are made available for a specific population. When this happens, the PHA may admit these families regardless of their wait list position or even if they were not on the wait list at all. This may occur when HUD action would render a family homeless due to the demolition, destruction, transfer, or sale of otherwise assisted housing as well as after a natural disaster. Some PHAs may also have special set-asides for domestic violence agencies or homeless services organizations.

  • 1See 24 C.F.R. § 982.201(b).
  • 224 C.F.R. § 982.201(b)(2).

2.3 Admission

2.3 Admission aetrahan Mon, 01/23/2023 - 13:46

When a family’s position is reached on the wait list, the PHA will determine the family’s eligibility. If the family is eligible, the PHA will then admit that family to the program. As part of the admission procedures, the PHA must provide an oral briefing that includes a description of the program, the responsibilities of the tenant and the owner, where a family can look for housing, and how portability works.1  If the family is currently living in a high-poverty census tract in the PHA’s jurisdiction, the briefing must explain the advantages of moving to an area that does not have a high concentration of poor families.2

Along with the oral briefing, the family is to receive an information packet that explains the nature of the rent calculation, the lease addendum that the HCVP requires, information to assist the family in finding a home, and the all-important Request for Tenancy Approval. This information packet is separate from the actual voucher, but they are generally issued at the same time.

  • 124 C.F.R. § 982.301(a).
  • 224 C.F.R. § 982.301(a)(3).

2.4 Denial of Admission

2.4 Denial of Admission aetrahan Mon, 01/23/2023 - 13:47

2.4.1 General Grounds

2.4.1 General Grounds aetrahan Mon, 01/23/2023 - 13:49

An applicant may be denied admission only for very specific reasons. 24 C.F.R. §§ 982.552–.553 list the mandatory and discretionary grounds for denying admission to the program. The PHA must deny admission to the program if any member of the family fails to sign and submit required consent forms, fails to provide required evidence of citizenship or eligible immigration status, fails to meet the eligibility requirements concerning individuals enrolled at institutions of higher education, or is over-income for the program.

2.4.2 Criminal Record

2.4.2 Criminal Record aetrahan Mon, 01/23/2023 - 13:49

The PHA must perform a criminal background check of all adult household members before admission into the HCVP program. Certain criminal acts have the effect of banning a person from receiving federal housing assistance. Registered lifetime sex offenders and persons convicted of methamphetamine manufacturing or production in federally assisted housing are permanently banned.1  If a PHA proposes to deny admission for criminal activity as shown by a criminal record, the PHA must provide a copy of the criminal record to the subject of the record and to the applicant. The PHA must give the family an opportunity to dispute the accuracy and relevance of that record in the informal review process.2  Arrests and police reports are not sufficient to meet the PHA’s burden of proving criminal activity.3

A PHA cannot grant admission to a person for 3 years following an eviction from a federally assisted housing unit for drug-related criminal activity.4  Further, the PHA must bar admission to any person whom the PHA can establish is currently engaging in illegal drug use or in alcohol abuse that may threaten the health, safety or right to peaceful enjoyment by other residents. A household member is “currently engaged in” criminal activity if the person has engaged in the behavior recently enough to justify a reasonable belief that the behavior is current.5

The 3-year ban can be lifted if the person who engaged in the criminal activity completes a PHA-approved drug treatment program or if “the circumstances leading to eviction no longer exist (for example, the criminal household member has died or is imprisoned).”6  The exceptions can be invaluable in overcoming a denial of admission. Some municipalities are turning to rehabilitative programs as part of sentences for drug use, allowing applicants to take advantage of this exception. In many cases, you will find removing the offending person from an application is an acceptable solution to allow the rest of the family a chance to secure housing.

The Housing Authority of New Orleans (HANO) has a progressive criminal background screening policy that will only automatically deny Section 8 applicants who have been convicted of production of methamphetamines in federally assisted housing or who are on the lifetime sex offender list. Other applicants may be sent through a “further review” process depending on the nature of their criminal conviction and time that has elapsed since the conviction. In the further review process, applicants can provide evidence of the facts and circumstances surrounding the conviction, evidence of good tenant and employment history, and evidence of rehabilitation and community support. No applications will be denied based on arrest alone. Southeast Louisiana Legal Services has authored a toolkit that may be useful for applicants navigating the further review process.7

2.4.3 Procedure

2.4.3 Procedure aetrahan Mon, 01/23/2023 - 13:52

The PHA must give an applicant prompt written notice of a decision denying admission to the HCVP. The notice must briefly state the reasons for the decision (including any eligibility determination) and the availability of and process for requesting an informal review of the decision.1  This “informal review” differs from the “informal hearing” available when assistance is terminated. For instance, an “informal hearing” provides a right of discovery, whereas an “informal review” does not.2

The PHA’s Administrative Plan will identify the specific procedures it will use to conduct the informal review. At a minimum, the procedures must comply with three provisions: it may not be conducted by the person who made or approved the decision to deny or by a subordinate of this person; the applicant must have opportunity to present written or oral objections to the decision; the PHA must issue its decision in writing after the informal review, including a brief statement of the reasons for the final decision.3

The PHA is not required to provide the applicant an opportunity for an informal review when the denial of assistance relates to a discretionary administrative determination by the PHA; general policy issues or class grievances; a determination of the family unit size under the PHA subsidy standards; a determination not to approve an extension or suspension of a voucher term; a determination not to grant approval of the tenancy; a determination that a unit selected by the applicant is not in compliance with Housing Quality Standards.4

It is important to act quickly when a family has received notice of a denial of assistance. The informal review process is usually time sensitive with hard deadlines set by the PHA. When assisting a client who has been denied assistance, quick action to notify the PHA of the request for an informal review should be your first step. Because many denials of assistance stem from the PHA making its determination on information that is inaccurate or out-of-date, include with this notification a request to review the family’s file to determine what information the PHA is using as the basis for its determination. Even if the PHA has correct information, you can nonetheless take action that will allow the problem to be rectified before the review occurs, such as when a denial is due to an expungable criminal record.

  • 124 C.F.R. §§ 982.201(f), .554(a).
  • 2Compare 24 C.F.R. § 982.555 (“informal hearing”), with 24 C.F.R. § 982.555(E)(2) (“informal review”).
  • 324 C.F.R. § 982.554(b).
  • 4See 24 C.F.R. § 982.554(c).

2.5 Using the Voucher

2.5 Using the Voucher aetrahan Mon, 01/23/2023 - 14:03

2.5.1 Basic Principles

2.5.1 Basic Principles aetrahan Mon, 01/23/2023 - 14:03

Vouchers are issued for a search period of at least 60 days. The PHA may extend this time in accordance with its Administrative Plan or at its discretion, but the term of the search period must be in writing—usually on the voucher itself.1  During this time, a tenant must locate a new landlord who is willing to rent to the tenant while on the program and a new residence that can meet Housing Quality Standards. In general, private Louisiana landlords are not required to accept the vouchers, even if they currently have Section 8 HCVP tenants or they have rented to Section 8 HCVP tenants in the past. However, Louisiana landlords who participate in other federal programs cannot discriminate against Section 8 voucher holders. Those other federal programs include multifamily housing projects purchased from HUD,2  low-income housing tax credit projects,3  and rental rehabilitation projects and HODAG buildings.4

  • 124 C.F.R. § 982.303(a).
  • 212 U.S.C. § 1701z-12; 24 C.F.R. § 290.19, .39.
  • 326 U.S.C. § 42(h)(6)(B)(iv); 26 C.F.R. § 1.42-5(c)(1)(xi).
  • 442 U.S.C. § 1437o(c)(2)(G)(I), (d)(4)(D)(I), & note.

2.5.2 Extensions and Suspensions

2.5.2 Extensions and Suspensions aetrahan Mon, 01/23/2023 - 14:08

If a tenant has not located a potential residence within the initial search term, the voucher will expire, jeopardizing the tenant’s future participation in the program. Extensions can be granted, consistent with the PHA’s Administrative Plan. Extension of search time beyond 120 days is mandatory when it is necessary as a reasonable accommodation for a disabled family.1  A progress report showing the addresses of potential residences that the tenant reviewed may be required by the PHA at specific intervals or times.2

A PHA must allow for a suspension of the voucher term upon family submission of a Request For Tenancy Approval (RFTA).3  The Administrative Plan will detail the terms for any suspension. Suspensive periods are critical because without a suspension, the clock continues running while the PHA decides the RFTA. If the PHA denies the RFTA, the amount of time remaining in the initial search period may not be long enough for the voucher holder to locate another new potential home. This is of great importance when engaging in interstate porting; voucher search periods do not naturally incorporate the delays needed for travel or the time needed to acquire the resources to do so. Tenants wanting to port should begin their search before completion of their current lease term and should notify the PHA in writing of their plans.

When advising a client who may need to request an extension, instruct the client to keep a written diary or journal of all potential residences. This journal should include the property address and contact information for the landlord, the date the tenant contacted the landlord of the property, the date the tenant viewed the property, and the reasons the tenant was rejected by the landlord or decided not to rent the property. If a voucher extension is necessary, submit a request to the PHA in writing before the voucher expires and include a copy of the diary or journal of the search for a residence. Finally, if porting to another jurisdiction, a tenant should contact their caseworker to begin the porting process as soon as possible.

  • 124 C.F.R. § 982.303(b).
  • 224 C.F.R. § 982.303(d).
  • 324 C.F.R. § 982.303(c).

2.5.3 Request for Tenancy Approval

2.5.3 Request for Tenancy Approval aetrahan Mon, 01/23/2023 - 14:09

Once a suitable home is found with an agreeable landlord, the tenant must submit a Request for Tenancy Approval (RFTA), which, among other things, will trigger the PHA to perform a Housing Quality Standards (HQS) inspection of the unit.1  In addition to all internal aspects of the home, HQS requires that the external site and neighborhood be free from adverse environmental conditions, disturbing noises, and other dangers to health, safety, and general welfare of the occupants.2

  • 1For a general review of the purpose of the HQS inspection, see 24 C.F.R. § 982.401.
  • 224 C.F.R. § 982.401(l).

2.6 Rent Computation

2.6 Rent Computation aetrahan Mon, 01/23/2023 - 14:10

2.6.1 Basic Principles

2.6.1 Basic Principles aetrahan Mon, 01/23/2023 - 14:10

HUD annually publishes the fair market rents (FMR) for each market area in the United States.1  The PHA must adopt a schedule that establishes voucher “payment standard” amounts for each unit size in each market area within the PHA’s jurisdiction.2  The payment standard must be set between 90% and 110% of FMR.3  However, with HUD approval, PHAs may use exception payment standards or small-area FMRs to increase the payment standard in certain cases or areas. A tenant may also request a payment standard above 110% as a reasonable accommodation for a disability.

The payment standard is the maximum monthly subsidy (including any utility allowance) that is available by household size and is used to calculate the monthly housing assistance payment (HAP) for a family. A family’s HAP varies with the family’s income, i.e., a family with a greater income receives a lower HAP than an equivalent family with a lower income.

The PHA pays the HAP directly to the landlord, and the tenant is responsible for the portion of the gross rent (approved contract rent to owner plus any utility allowance) exceeding the HAP. The family pays this portion (the “family share” or “tenant share”) to the landlord. As a result, the tenant should negotiate for lowest possible gross rent. At the family’s request, the PHA must help the family negotiate the rent with the landlord.4  If you are checking whether the HAP is calculated correctly, the basic rule is that the HAP equals the payment standard for the family minus the total tenant payment or the gross rent minus the total tenant payment, whichever is lower.5

A PHA cannot approve use of a voucher unless the gross rent is a reasonable rent for comparable units in the area.6  For the initial lease on the unit, the family share cannot exceed 40% of the family’s income.7  Following the initial term of the lease, the family share is no longer capped at 40%. At this time, if a landlord wishes to raise the rent to an amount that would result in the family share exceeding 40% of family’s income, the tenant can elect to remain in the unit only if the PHA agrees that the new gross rent is still reasonable in the housing market. Unfortunately, in areas where market rents are higher, an approved rent change after the first year may result in the Section 8 tenant being severely cost burdened. In such a case, the tenant’s remedy is to move.

Once the rent has been established by the PHA, the owner may not demand or accept any rent payment from the tenant in excess of this amount set by the PHA and must immediately return any excess rent payment to the tenant.8  Such payments are considered illegal side payments and are totally disallowed under the program. In some cases, a tenant may offer to pay an amount above the maximum rent set by the PHA out of pocket in order meet the demands of a landlord/owner for a particular unit. You must advise your client against such action as it will seriously jeopardize future participation in the HCVP. Demanding and collecting illegal side payments may give rise not only to a breach of contract claim but also to a qui tam claim under the False Claims Act.9  Extra fees that were not approved by the PHA may also be considered illegal side payments under this theory.10

Tenants under the HCVP program are entitled to a decrease in their share of rent when they timely report a decrease in income. They must request an “Interim Recertification.”11  Typically, the decrease should take effect the first day of the month following the reporting of the income change, but PHAs are allowed to make their own rules about the effective date of recertifications.12  By contrast, the PHA can choose whether to process rent increases on an interim basis and should give at least 30 days’ notice of any rent increase.13  Check the PHA Administrative Plan for rules specific to a particular housing authority. Note that on January 1, 2024, certain changes go into effect pursuant to the Housing Opportunity Through Modernization Act (HOTMA). Under the new rules, PHAs are only required to conduct interim reexaminations if income change will cause the family’s adjusted annual income to increase or decrease by 10%. PHAs may not consider any increase in the earned income of a family between annual reexaminations unless the family has previously received an interim reduction.14

The HCVP has a minimum rent requirement of $50.00. Your client may be paying minimum rent without realizing it. For example, tenants who have $0 rent get a utility reimbursement check rather than a utility allowance subtracted from their rent portion. If your client is getting a utility reimbursement that seems too low, or no utility reimbursement, it may be because of the $50 minimum rent. Your client must request a “financial hardship exemption” in order to be exempted from the minimum rent requirement.15

Tenants are also entitled to an informal hearing of the determination of the family’s annual or adjusted income and the use of such income to compute the HAP.16  At the hearing, the tenant may have the assistance of a lawyer or other representative.17  Before the hearing, the family or its representative must be given the opportunity to examine any PHA documents directly relevant to the hearing. If the PHA does not make a document available for examination on request of the family, the PHA may not rely on that document at the hearing.18

  • 1The can be found at the huduser.gov website.
  • 224 C.F.R. § 982.503.
  • 324 C.F.R. § 982.503(b).
  • 424 C.F.R. § 982.506.
  • 524 C.F.R. § 982.505.
  • 624 C.F.R. § 982.507.
  • 724 C.F.R. § 982.508.
  • 824 C.F.R. § 982.451(b)(4)(ii).
  • 9See United States ex rel. Richards v. R&T Invs. LLC, 29 F. Supp. 3d 553 (W.D. Pa. 2014); United States ex rel. Wade v. DBS Invs., LLC, 2012 U.S. Dist. LEXIS 122734 (S.D. Fla. Aug. 29, 2012); United States ex rel. Mathis v. Mr. Prop., Inc., 2015 U.S. Dist. LEXIS 30738 (D. Nev. Mar. 10, 2015); United States ex rel. Sutton v. Reynolds, 564 F. Supp. 2d 1183 (D. Or. 2007); Coleman v. Hernandez, 490 F. Supp. 2d 278, 280 (D. Conn. 2007); United States ex rel. Price v. Peters, 66 F. Supp. 3d 1141 (C.D. Ill. 2013); United States ex rel. Carmichael v. Gregory, 270 F. Supp. 3d 67 (D.D.C. 2017).
  • 10United States ex rel. Sutton v. Reynolds, 564 F. Supp. 2d 1183, 1188 (D. Or. 2007) (denying summary judgment in favor of tenant on FCA cause of action where landlord charged an extra $30 per month for lawn maintenance); United States ex rel. Mathis v. Mr. Prop., Inc., 2:14-cv-00245, 2015 WL 1034332, at *4 (D. Nev. Mar. 10, 2015) (pool maintenance fee not reflected in HAP contract gave rise to FCA cause of action, citing prohibition on “additional rent” in Part C of the HAP contract); Coleman v. Hernandez, 490 F. Supp. 2d 278, 280 (D. Conn. 2007) (charging of an additional $60 per month for water usage was considered a side-payment when not included in the HAP Contract and therefore a FCA violation).
  • 1124 C.F.R. § 982.516.
  • 1224 C.F.R. §982.516(e).
  • 13The Housing Choice Voucher Program Guidebook - Reexaminations, U.S. Dep’t of Hous. & Urb. Dev.
  • 1424 C.F.R. § 982.516(c).
  • 1524 C.F.R. § 5.630.
  • 1624 C.F.R. § 982.555(a).
  • 1724 C.F.R. § 982.555(e)(3).
  • 1824 C.F.R. § 982.555(e)(2)(i).

2.6.2 Disabilities

2.6.2 Disabilities aetrahan Mon, 01/23/2023 - 14:24

If a family includes a member with a disability, that family member’s income may be excluded from the rent calculation under three circumstances: (1) the disabled family member was previously unemployed for at least one year; (2) the disabled family member’s earnings increased as a result of an economic self-sufficiency or other job training program; or (3) the disabled family member’s earnings increased during or within six months after receiving assistance or services from any state program for temporary assistance for needy families funded under Part A of Title IV of the Social Security Act.1  This is typically called the “earned income disallowance.”

Under this provision, for the first 12-month period, the increase of income is wholly disallowed in the rent calculation.2  If the family began receiving the benefits of the disability disallowance prior to May 9, 2016, 50% of the earnings of the disabled family member are excluded following the initial 12-month period.3  Otherwise, the 50% disallowance is only available for an additional 12 months; in this case, there is a lifetime maximum disallowance of 24 months.4

Note that on January 1, 2024, certain changes go into effect pursuant to the Housing Opportunity Through Modernization Act (HOTMA). Under the new rules, the earned income disallowance (also known as earned income disregard) is being phased out from 2024-2026.

  • 124 C.F.R. § 5.617.
  • 224 C.F.R. § 5.617(c)(1).
  • 324 C.F.R. § 5.617(c)(4).
  • 424 C.F.R. § 5.617(c)(2).

2.7 Utility Allowances

2.7 Utility Allowances aetrahan Mon, 01/23/2023 - 14:25

If a tenant pays the utilities, the PHA will deduct the cost of a reasonable amount of utility consumption in calculating the tenant portion of rent. The amount of this allowance is determined by the PHA’s utility allowance schedule, which is based on the typical cost of utilities and services paid by energy-conservative households occupying housing of similar size and type in the same locality.1  If a tenant pays $0 rent, they should receive a utility allowance reimbursement payment each month.

In developing the schedule, the PHA must use normal patterns of consumption for the community as a whole and current utility rates. A HUD contractor has generated a spreadsheet based on a national consumption study to guide Low Income Housing Tax Credit landlords in setting utility allowances. At least one Louisiana PHA has used this spreadsheet to generate its Section 8 utility allowances. Some of the assumptions in, and so allowances projected by, this tool are questionable.

Sadly, the utility allowance is usually less than the actual amount of a voucher tenant’s utility bills. PHAs are required to review the adequacy of their utility allowances and to increase them when utility rates have increased by at least 10% since the utility allowance was last adjusted.2  Opportunity for an informal hearing is required if a family disputes whether its utility allowance is correctly calculated under the PHA utility allowance schedule.3

On request from a family that includes a person with disabilities, the PHA must approve a utility allowance that is higher than the applicable amount on the utility allowance schedule if a higher utility allowance is needed as a reasonable accommodation.4

  • 1The Utility Allowance Schedule for the Housing Authority of New Orleans can be found here.
  • 224 C.F.R. § 982.517(c)(1).
  • 324 C.F.R. § 982.555(a)(1)(ii).
  • 424 C.F.R. § 982.517(e).

2.8 Tenant Leases

2.8 Tenant Leases aetrahan Mon, 01/23/2023 - 14:27

Federal law mandates that the lease between tenant and owner comply with state and local law.1  If an owner uses a standard lease for non-assisted tenants the owner must use the same standard lease for assisted tenants.2  All HCVP leases are subject to a HUD Tenancy Addendum, which controls in the case of any conflicting provisions.3

A landlord may require a security deposit.4  The PHA may prohibit security deposits in excess of private market practice or in excess of amounts charged by the owner to unassisted tenants.5  The owner is allowed to use the deposit for payment of any unpaid rents or damages, but the owner must give the tenant an itemized list of any charges and promptly refund the full amount of the unused balance.6

  • 124 C.F.R. § 982.308(c).
  • 224 C.F.R. § 982.308(b)(2).
  • 324 C.F.R. § 982.308(f).
  • 424 C.F.R. § 982.313.
  • 5Id.
  • 6Id.

2.9 Voucher Termination

2.9 Voucher Termination aetrahan Mon, 01/23/2023 - 14:29

2.9.1 Grounds for Termination

2.9.1 Grounds for Termination aetrahan Mon, 01/23/2023 - 14:29

Grounds for program termination include any family member’s act or failure to act that results in a failure to fulfill the Family Obligations.1  Such failures include a family member’s absence from the unit, failing to notify the housing authority of an eviction notice or subsequent eviction from the unit, abandoning the unit (including constructive abandonment by leaving the unit unoccupied for more than 180 days), subletting the unit, failing to give the housing authority notice before vacating the unit, failing to provide proof of citizenship or immigration status, failing to allow HQS inspections, committing bribery or fraud in connection with the program, and not promptly informing the PHA of additions to the household.2

Participants can also be terminated from the HCVP if they are evicted for a “serious violation of the lease.”3  Defenses to termination may include that the eviction was for something other than a lease violation, that the tenant was not at fault, that the lease violation was not serious, that the eviction was illegal under applicable law, that another statutory protection should have precluded the eviction (e.g., VAWA or FHA protections), and that other circumstances argue against terminating assistance (if the local Administrative Plan so provides).

In proving a serious violation of the lease, the PHA should not be able to rely simply on the fact that the eviction judgment was issued. For the PHA to rely on the judgment as conclusive proof of a serious violation constitutes offensive collateral estoppel by a non-party. This extreme use of preclusion is unsupported by Louisiana precedent.4

Once a person becomes a participant, the HCVP becomes very unforgiving when it comes to criminal activity. Where federal law mandates that each PHA establish rules that allow it to terminate assistance if it determines that a family member is currently engaged in or has a pattern of illegal drug use or drug-related criminal activity, engaged in violent criminal activity, or engaged in alcohol abuse that may threaten others, the PHA must prove any such action by preponderance of evidence.5  As with a denial of assistance, any criminal record relied upon by the PHA must be presented to the family for an opportunity to review and dispute the accuracy and relevance of that record.6

  • 1See 24 C.F.R. § 982.551.
  • 224 C.F.R. §§ 982.551, .552(e).
  • 324 C.F.R. § 982.551(b)(2).
  • 4See Alonzo v. State ex rel. Dep’t of Nat. Res., 2002-0527, p. 8 (La. App. 4 Cir. 9/8/04), 884 So. 2d 634, 638–39.
  • 524 C.F.R. § 982.555(e)(6).
  • 624 C.F.R. §§ 982.555(e)(2), .553(d).

2.9.2 Procedure

2.9.2 Procedure aetrahan Mon, 01/23/2023 - 14:39

The PHA must give an opportunity for an informal hearing of the PHA decision to terminate assistance.1  When a hearing is requested, the PHA must proceed with the hearing in a reasonably expeditious manner if the family so requests.2  If the Section 8 participant timely requests a hearing, then the PHA must provide continued program assistance if the participant has an active HAP contract.3

24 C.F.R. § 982.555(e) lays out the basic requirements for PHA hearings for HCVP participants. A family facing a proposed termination from the program can seek assistance from a lawyer or other representative.4  Before the hearing, the family and/or its representative must be given the opportunity to examine any PHA documents directly relevant to the hearing. If the PHA does not make the document available for examination on request of the family, the PHA may not rely on the document at the hearing.5

The hearing can be conducted by any person, other than the person or a subordinate of this person who made or approved the decision to propose termination. The person who conducts the hearing is to regulate the conduct of the hearing in accordance with the PHA hearing procedures, but the rules of evidence are lax in comparison to most judicial proceedings. Nonetheless, due process is required. The PHA and the family must be given the opportunity to present evidence and may question any witnesses. Following the hearing, the person who conducts the hearing must provide the family with a written decision that states the PHA’s reasons.6

The PHA is not bound by a hearing decision if it involves a matter for which the PHA is not required to provide an opportunity for an informal hearing7  or the decision is contrary to HUD regulations or requirements or to federal, state, or local law.8  If the PHA determines that it is not bound by a hearing decision, the PHA must promptly notify the family of that determination and the PHA’s reasoning.

Factual determinations relating to the individual circumstances of the family must be based on a preponderance of the evidence presented at the hearing.9  Remember that the PHA bears the burden of proving the alleged violation.10

  • 124 C.F.R. § 982.555(a), (c)(2). This hearing may provide greater protections than the informal review accorded to applicants.
  • 224 C.F.R. § 982.555(d).
  • 324 C.F.R. § 982.555(a)(2).
  • 424 C.F.R. § 982.555(e)(3).
  • 524 C.F.R. § 982.555(e)(2)(i).
  • 624 C.F.R. § 982.555(e).
  • 7See 24 C.F.R. § 982.555(b) for a list of these eight matters.
  • 824 C.F.R. § 982.555(f).
  • 924 C.F.R. § 982.555(e)(6).
  • 10See Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008).

2.9.3 Reasonable Accommodations

2.9.3 Reasonable Accommodations aetrahan Mon, 01/23/2023 - 14:43

If the family includes a member with a disability, the PHA decision concerning termination is subject to a request for a reasonable accommodation.1

  • 124 C.F.R. § 982.552(c)(2)(i), (iv).

2.9.4 Practice Tips

2.9.4 Practice Tips aetrahan Mon, 01/23/2023 - 14:43
  • Make the request for an informal hearing as soon as you receive notice of a proposed termination.
  • Request an informal hearing and request to view the tenant file in writing and make a copy for your records.
  • Submit a pre-hearing memorandum to the Hearing Officer or Panel. Spell out the facts, give an analysis under the regulations as to why the PHA should not take the proposed action, and provide supporting documentation. If there is countervailing or exculpatory evidence, submit a copy with hearing memo but be sure to bring the evidence along with the memo to the actual hearing.
  • Always remind the PHA that it bears the burden of proving the alleged program violation by a preponderance of the evidence and, if applicable, that the termination is not mandatory but discretionary. Discretionary grounds are listed in 24 C.F.R. § 982.552(c), as opposed to the mandatory grounds in § 982.552(b). Be aware that the local PHA may make discretionary grounds mandatory; the discretionary and mandatory grounds for a termination will also be listed in the PHA Administrative Plan. The plan may also have language creating additional protections for the client. Argue that all pertinent circumstances and alternatives should be taken into account in determining whether to uphold a discretionary termination.1
  • In some cases, a post-hearing memo should also be forwarded or may be requested by the hearing officer. In situations where evidence will potentially become available only after the hearing, note this in the pre-hearing memo and at the hearing. If the hearing goes forward, supplement as soon as possible
  • A participant may seek judicial review following an adverse decision at the informal hearing. The hearing officer’s decision may be reversed if there is a determination that the decision is arbitrary or capricious, an abuse of discretion, or contrary to HUD regulations or to federal, state, or local law. Terminations may be challenged in court under 42 U.S.C. § 1983 when the PHA decision violates specific federal statutory entitlements or constitutional requirements. Not all statutory requirements can be enforced through § 1983.2
  • Federal law requires that the person who conducts the hearing be neither the person who proposed termination nor a subordinate of that person. This is very helpful if termination notices are sent out under the signature of the PHA program director because every Section 8 employee is a subordinate of that individual. To comply with the law, the PHA must either designate a non-subordinate to conduct the hearing or else ensure that executive-level heads do not participate in the decision to terminate.
  • PHAs often overreach and assert grounds when no underlying facts support the termination. For example, PHAs frequently allege fraud when only tenant omission or error exists.
  • The PHA is restricted to conducting a hearing only as to those issues delineated in the termination notice.
  • Review the PHA file immediately and make note via memo or otherwise to the PHA/Hearing Officer/Panel in the event the determinative evidence is not located in the file.
  • While this is an informal hearing, prepare your client as you would normally for any civil hearing. Many clients become nervous, and emotions run high. Do your best to put your client at ease and maintain control during the hearing.
  • Many times the only witnesses available to the PHA are the client’s caseworker and client’s landlord. You have the right to question all witnesses. Be prepared to ask questions if necessary. Even for violations specifically related to a client-landlord interaction, the PHA or Hearing Officer may neglect to have the landlord present for hearing.
  • Object to the PHA using police reports3  or other hearsay as evidence. Though the rules of evidence are relaxed in an administrative hearing, hearsay cannot constitute “substantial evidence” unless factors that assure the “reliability and probative value of the evidence” are present.4
  • Object to any PHA reliance on a judgment as conclusive of a lease violation. The PHA must independently prove the violation to terminate the voucher.5
  • Bring a copy of all case law, statutes, and sections of the Administrative Plan to the hearing along with extra copies of any and all documents that you wish to use to make your case. 
  • 124 C.F.R. § 982.552(c)(2).
  • 2See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (explaining criteria for identifying a private right of action under federal legislation). Before bringing a § 1983 action on the basis of a statutory violation, advocates should determine whether binding circuit precedent has foreclosed a private right of action.
  • 3La. C.E. 802; State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So.2d 76, 84; State v. Cockerham, 522 So. 2d 1245, 1247 (La. App. 4 Cir. 1988).
  • 4U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 270 (5th Cir. 1979).  The factors considered are whether (1) the out-of-court declarant was not biased and had no interest in the result of the case; (2) the opposing party could have obtained the information contained in the hearsay before the hearing and could have subpoenaed the declarant; (3) the information was not inconsistent on its face; and (4) the information has been recognized by courts as inherently reliable. Basco v. Manchin, 514 F.3d 1177, 1182 (11th Cir. 2008). The Basco test has been applied in the 5th Circuit. Henley v. Hous. Auth. of New Orleans, No. 12–2687, 2013 U.S. Dist. LEXIS 62255, at *12, 2013 WL 1856061 (E.D. La. May 1, 2013).
  • 5La. R.S. 13:4231; see Tranchina v. State, 99-C-1332, p.2 (La. App. 4 Cir. 1999), 740 So. 2d 713, 714; State ex rel. Robinson, 517 So. 2d 477, 479 (La. App. 1 Cir. 1987).

2.10 Eviction

2.10 Eviction aetrahan Mon, 01/23/2023 - 14:53

2.10.1 Grounds

2.10.1 Grounds aetrahan Mon, 01/23/2023 - 14:54

The Section 8 HCVP program places additional restrictions and obligations upon a landlord seeking to evict a tenant beyond those available under the lease itself or Louisiana landlord-tenant law.

During the initial term of the lease, a Section 8 landlord may only evict for serious or repeated lease violations or violations of federal, state, or local law in connection with the occupancy or use of the premises.1  Eviction for serious violations of the lease may also result in termination from the program.2

Following the initial term of the lease, inaction by either the tenant or the landlord will convert the lease to a month-to-month tenancy; during a month-to-month tenancy, the HCVP only requires a landlord to assert a diluted “good cause” to evict a tenant. 24 C.F.R. § 982.310(d) defines “good cause” rather loosely. It includes failure by the family to accept the offer of a new lease or revision; family history of disturbance of neighbors or destruction of property or of living or housekeeping habits resulting in damage to the unit or premises; the owner’s desire to use the unit for personal or family use or for a purpose other than as a residential rental unit; and a business or economic reason for termination of the tenancy, including the desire to lease the unit at a higher rent. As this list is non-exhaustive, it will fall to the adjudicator of the eviction to determine whether the landlord’s cause for eviction is “good”; sadly, experience shows that Louisiana judges and justices of the peace have been willing to accept “owner wants possession of property following termination of initial lease term” as good cause to evict a Section 8 HCVP program tenant.3  If the landlord’s cause may not be adequate and the tenant needs more time to complete a program move, consider filing a suspensive appeal. Further proactive measures may be necessary to insure that a PHA does not treat such an eviction as a violation of a tenant’s family obligations, thereby risking termination of assistance.

  • 124 C.F.R. § 982.310.
  • 2For more discussion of voucher termination, see Section 2.8.
  • 3See Khamnei v. Behrman, No. 2008-342, 2009 WL 2413622, at *2 (Vt. 2009) (holding that Section 8 landlord can choose not to renew at end of lease term, without restriction, and collecting authorities).

2.10.2 Procedure

2.10.2 Procedure aetrahan Mon, 01/23/2023 - 14:56

All Section 8 HCVP participants and landlords are bound not only by the lease drafted by the landlord but also by the standard HUD Tenancy Addendum that by law is incorporated into all HCVP leases. A Section 8 landlord must give a written notice of lease termination that specifically states the grounds for the eviction. The notice must be given prior to the commencement of the eviction action. Five-day notice is required for evictions based on lease violations; the notice period for evictions due to nonrenewal of the lease depends on the time stated for non-renewal in the lease. Failure to provide this notice will result in a premature eviction action, which can be dismissed on an exception of prematurity. While Louisiana law allows for the waiver of notice before the commencement of eviction action, the HUD Tenancy Addendum arguably forbids such waivers.1

Currently, the Coronavirus Aid, Relief, and Economic Security (CARES) Act requires 30-day notice of eviction for nonpayment if the property receives a federal subsidy.2

  • 124 C.F.R. § 982.310(e)(1)(i).
  • 215 U.S.C. § 9058(c).

2.10.3 Defenses

2.10.3 Defenses aetrahan Mon, 01/23/2023 - 14:56

Both the HUD Tenancy Addendum and the owner’s HAP contract explicitly state that nonpayment of the housing authority’s portion of the rent is not a lease violation and that the tenant is only responsible for the tenant share.1  This is very important in cases where the PHA has withheld the HAP because of landlord noncompliance with program requirements.

La. R.S. 9:3259.2 states that the application for and/or the receipt of any federal or state rent subsidy shall not be considered as payment of rent and shall not be a defense to an eviction. Thus, a landlord’s acceptance the rent subsidy cannot be used to dismiss an eviction suit on the basis of acceptance of rent. The landlord must accept the tenant share in order for acceptance of rent to be a defense to the eviction.

If a tenant loses the eviction hearing and properly seeks a suspensive appeal, the PHA should not take action to terminate the tenant from participation or cancel future HAP payments on the basis of the eviction.2  However, a tenant is still liable for the fulfillment of all other family obligations under the HCVP program.

An eviction judgment for non-payment of rent may result in termination from the HCV program unless the tenant can prove that no rent is owed. When a tenant is behind on rent, upon request many judges will enter a consent judgment in which the parties mutually agree on a move-out date and there is no finding of fact. Some PHAs will not propose termination from the HCVP following such judgments.

  • 124 C.F.R. § 982.310(b).
  • 224 C.F.R. § 982.311(b).

2.11 Relocation

2.11 Relocation aetrahan Mon, 01/23/2023 - 14:57

2.11.1 Basic Principles

2.11.1 Basic Principles aetrahan Mon, 01/23/2023 - 14:57

Once a tenant has found a new home, had it inspected, signed the lease, signed the HAP contract, and moved in, the tenant is obligated, except in special circumstances, to remain in the unit as a tenant until the PHA approves a move from the unit. Failure to follow proper “program move” procedure exposes a tenant to risks ranging from a period of non-assistance (meaning the tenant will be responsible for the entire lease amount to a new landlord) to termination from the program. Following the initial lease term when the lease reverts to a month-to-month arrangement, a tenant can request a program move by giving advance notice to both the landlord and the PHA of the tenant’s desire to move. It is important that the tenant has resolved any outstanding issues or defaults with the landlord, as many PHAs use form documents to request information as to the current status of a tenant before they will approve a move. Not only will the PHA delay the move process but if the issues/defaults violate a family obligation,1  a proposed termination may result. Further, many landlords wait until this time to specifically “speak their side” knowing it is their best chance to obstruct the move or to receive assistance from the PHA to resolve any issues they may have had with the tenant such as damages or late fees. However, you should argue that a PHA should not delay a tenant’s move based on disputed charges that have not been litigated.

A PHA may, through its Administrative Plan, enact rules that prohibit a tenant from conducting a program move during the initial term of a lease.2  This leads to a particularly troubling situation if the landlord-tenant relationship has so deteriorated that the landlord is willing to do anything to get an eviction and force the tenant out of the unit. While you may be able to successfully defend against the eviction, rarely does even educating the landlord about the parties’ rights and obligations in the HCVP have the effect of repairing a damaged landlord-tenant bond. Tenants, faced with an angry, motivated landlord who wants them out, are forced to choose between continuously fighting off eviction actions or moving in violation of the program rules. Without experience and knowledge of the bureaucratic practices of the PHA, it is impossible to know which option is best for your client. Your first move in these situations must be to contact the PHA and hope that you can successfully convey the true nature of what is going on. The sooner the PHA is made aware of the total circumstances, the better chance your client will have to move assisted. You must remain active and prepared, however, as an improper program move will almost assuredly trigger a proposed termination and the need for an informal hearing.

A tenant who is a survivor of domestic violence or sexual assault may request a move for safety reasons at any time.3  A tenant may also be eligible for a program move in the first year of tenancy as a reasonable accommodation for a disability.

  • 124 C.F.R. § 982.551.
  • 224 C.F.R. § 982.354(c)(2)(i).
  • 324 C.F.R. § 982.354(c)(2)(iii).

2.11.2 Portability

2.11.2 Portability aetrahan Mon, 01/23/2023 - 14:59

HCVP participants have the option of moving not only within their home PHA’s jurisdiction but also to another PHA’s jurisdiction. Under this portability process, an HCVP participant can have the voucher “ported” to a new PHA jurisdiction that will issue the voucher and allow the participant to look for housing and apply the voucher in the new area.

The procedures for this are spelled out in 24 C.F.R. § 982.355(c). In brief, the “initial” PHA informs the participant on how to reach the “receiving” PHA in the area the participant wants to move to. The participant must then contact the receiving PHA. If the receiving PHA intends to “bill” the voucher, the PHA will only administer the voucher, billing the costs back to the initial PHA. Under this method the initial PHA remains financially liable for the voucher and retains, along with the receiving PHA, the right to deny or terminate assistance to the family.1  If the receiving PHA intends to “absorb” the voucher, the receiving PHA assumes the full financial liability and becomes the sole PHA able to deny or terminate assistance to the family. The “absorbing” process essentially transforms the receiving PHA into a new initial PHA for the participant.

  • 124 C.F.R. §§ 982.552, .553.

2.12 Units in Need of Repair

2.12 Units in Need of Repair aetrahan Mon, 01/23/2023 - 16:24

The owner of a unit is bound by the warranty of habitability and other landlord-tenant laws concerning maintenance and repairs, including a tenant’s right to perform a “repair and deduct.”1  In addition to these obligations, the owner must comply with the Housing Quality Standards (HQS) of the HCVP program. If the owner fails to maintain the dwelling unit in accordance with HQS, the PHA must take prompt and vigorous action to enforce the owner obligations. PHA remedies for such breach of the HQS include termination, suspension, or reduction of housing assistance payments and termination of the HAP contract.2  The owner is not responsible for a breach of the HQS that is not caused by the owner and for which the family is responsible.3

Either you or your client should promptly notify the PHA of any damage or fault in the unit. Although the PHA will make at least annual HQS inspections, a report of damage or fault with the unit should trigger the PHA to perform a special inspection.4  If the unit fails to meet the HQS, the PHA will grant the owner a period of time to remedy the issue. This period is usually 30 days, but federal law allows only 24 hours if the defect is life threatening.5  If the owner fails to make the required repairs in the required time, the PHA will “abate” the HAP contract and not pay its housing assistance portion to the landlord; during this time, the tenant is still responsible for the tenant share, if any. The tenant cannot be evicted for nonpayment of the HAP.6  Once the property has entered abatement, the tenant can request a program move to a new residence.

Note that HUD is implementing new standards to replace HQS starting in 2023 across all HUD programs.7

2.13 Section 8 Project-Based Voucher Program

2.13 Section 8 Project-Based Voucher Program aetrahan Mon, 01/23/2023 - 16:27

Like the Section 8 Housing Choice Voucher, the Section 8 Project-Based Voucher (PBV) Program is administered by PHAs, but the subsidy is attached to a unit rather than a tenant. The subsidy is administered via a Housing Assistance Payment (HAP) contract between a private property owner and the PHA. With some exceptions, the PBV program has substantially the same rules as the HCV program.1  A notable exception is that in the PBV program, a business or economic reason does not constitute good cause for eviction after the initial lease term.2  This essentially amounts to good cause protection within the PBV program. The current version of the mandatory HUD Tenancy Addendum for the PBV program confirms that the lease automatically renews and can only be terminated for good cause.3  After one year in a PBV unit, a tenant can request a switch to the HCV program.4

At the state level, the Louisiana Housing Authority subsidizes some PBV units. These units are typically Permanent Supportive Housing units attached to properties developed using Low Income Housing Tax Credits or other subsidies administered by the Louisiana Housing Corporation (Louisiana’s state housing finance agency).

3 Other Federally Subsidized Programs

3 Other Federally Subsidized Programs aetrahan Mon, 01/23/2023 - 16:29

3.1 Section 8 Multifamily Housing Programs

3.1 Section 8 Multifamily Housing Programs aetrahan Mon, 01/23/2023 - 16:29

3.1.1 Introduction

3.1.1 Introduction aetrahan Mon, 01/23/2023 - 16:29

Many federally subsidized housing programs provide assistance to tenants in multifamily complexes owned by private owners. These programs are usually subsidized through insured, assigned, or noninsured below-market-interest-rate mortgages or through Section 8 Project-Based Rental Assistance (PBRA). Other common programs include the Section 236 and Section 221(d)(3) mortgage programs, Rent Supplement program, Section 202 senior housing program, Section 8 Loan Management Set Aside program, and the Section 8 New Construction, Moderate Rehabilitation, and Substantial Rehabilitation programs. The subsidies for these programs are tied to the unit, unlike the Section 8 tenant-based voucher program in which the subsidy travels with the tenant. If the tenant is evicted or moves from the unit, the tenant no longer receives a subsidy. In addition to applicable regulations,1  HUD Handbook 4350.3 for multifamily housing controls the operations of these varied programs.2

Over the past few years, the nation has lost more than 100,000 units from the privately owned but federally assisted HUD multifamily housing stock through prepayments of HUD-backed mortgages and Section 8 opt-outs and terminations. These units were originally subsidized with HUD-insured mortgages such as Section 236 or with project-based Section 8 assistance to make the units affordable to low-income persons. The expiration of long-term use restrictions that require rents to be affordable for low-income families has escalated the crisis in preserving affordable housing.

Upon expiration of the restrictions, the owners decide whether to remain in the program or to refuse contract renewal and “opt-out.” In 1997, Congress adopted the Mark to Market (M2M) program to incentive Section 8 multifamily landlords to renew their contracts by offering a mortgage restructuring option.

Some legal services programs have successfully challenged prepayments and Section 8 opt-outs to try to preserve low-income housing in their community.3  Some of the most common legal challenges include improper notice of prepayment, existence of state law mandating preservation of low-income housing, and fair housing challenges.

3.1.2 Eligibility and Admission

3.1.2 Eligibility and Admission aetrahan Mon, 01/23/2023 - 16:31

In these programs, the private owners select the tenants. The tenant’s income eligibility is basically the same as for the upper limit of public housing and tenant-based Section 8. The owner is responsible for developing reasonable selection criteria and may consider housekeeping habits, credit history, demonstrated ability to pay rent, and prior landlord references. Tenant screening criteria must comply with the Fair Housing Act.1  Some federally assisted properties may be designated specifically for seniors or people with disabilities; this  designation does not violate the Fair Housing Act if the designation was done properly.

An applicant has the right to respond to a rejection in writing and to request a meeting within 14 days.2  The person holding the meeting cannot have participated in the decision to reject the applicant. The most common reasons for rejection include poor credit history, prior criminal history, or negative rental history.

As with other federally subsidized housing programs, tenants may be entitled to additional protections if they have a disability or have been affected by domestic violence or if the housing provider receives Low-Income Housing Tax Credits.

3.1.3 Rent Computation

3.1.3 Rent Computation aetrahan Mon, 01/23/2023 - 16:33

If a tenant lives in housing subsidized under Section 236, Section 221(d)(3), or Section 202 and does not receive a Section 8 subsidy, the tenant will have to pay at least the minimum base rent established for the complex. If the tenant’s unit also has a Section 8 subsidy, the rent is determined in the same manner as the rent for a public housing tenant. It is very important to accurately define the fact pattern and the applicable laws and regulations in order to determine how a tenant’s rent is calculated. For information on rent computation for the various programs, make sure to check the regulations for the particular program.

3.1.4 Eviction

3.1.4 Eviction aetrahan Mon, 01/23/2023 - 16:33

Owners of multifamily federally assisted housing are required to have good cause to refuse to renew a lease or to evict a tenant. Tenants may only be evicted for material noncompliance with the rental agreement, material failure to carry out obligations under any state or local law, criminal activity, or other good cause.1  Material noncompliance includes one or more substantial violations of the lease; repeated minor violations of the lease that disrupt the livability of the project, adversely affect health, safety, or the right to peaceful enjoyment of the premises, interfere with management of the project, or have an adverse financial impact on the project; nonpayment of rent or other charges; criminal or drug-related activity; and failure to comply with the recertification process.

The owner must serve a termination notice upon the tenant by sending a letter properly addressed and stamped to the tenant at the tenant’s address in the project with a proper return address and by serving a copy of the notice on the tenant by delivering it to any adult person answering the tenant’s door, or if no adult responds, by placing the notice under the tenant’s door or affixing the notice to the door. Service is not deemed effective until service has been made by both methods.2

The notice of termination must be in writing and must state that the tenancy is terminated on a date which is specified therein; state the reasons for the eviction with enough specificity for a tenant to prepare a defense; advise the tenant that if the tenant remains in the premises on the date specified for termination, the landlord may seek to enforce the termination by bringing court action, at which time the tenant may present a defense; and be served properly.3

Many HUD multifamily properties use the HUD Model Lease for Subsidized Programs.4  The form lease and the HUD handbook require that any termination notice advise the tenant of the right to request a meeting to discuss the proposed lease termination and that the request be granted if made within 10 days of receipt of the notice. Even if the lease does not expressly provide for such a meeting, you should always ask for one per HUD Handbook 4350.3 Chapter 8 (if the handbook applies to the property’s subsidy program).5  This will give you a chance to negotiate and, even if a compromise cannot be reached, the meeting is an opportunity for pre-trial discovery.

The time period for the notice of termination depends upon the reason for the eviction. In material noncompliance terminations, state law and the lease determine the length of notice required. A 30-day notice of lease termination is required for terminations based upon “other good cause.” A landlord under the federally assisted multifamily housing programs may not rely upon any grounds at trial that were not stated in the notice of lease termination unless the owner had no knowledge of those grounds at the time of the notice to vacate.

As of November 8, 2021 and until rescinded by HUD, 30 days’ notice is required for eviction for nonpayment of rent from most HUD Section 8 Project-Based Rental Assistance properties or from Section 221(d), 236, and 202 below-market-interest-rate mortgage properties. The notice must include information about available rental assistance.6

3.1.5 Repairs or Abatement

3.1.5 Repairs or Abatement aetrahan Mon, 01/23/2023 - 16:37

Private owners who participate in the HUD multifamily housing programs have agreed to rent their complex or a portion of their complex to low-income families for a given term, usually at least 20 years. They are subject to periodic REAC (Real Estate Assessment Center) inspections by HUD. When operating costs for the units rise and the subsidized owners run short of money, they usually reduce services and maintenance. HUD has published a pamphlet for families living in multifamily housing called “Resident Rights and Responsibilities.” This pamphlet, available from HUD and the local HUD field office, describes tenants’ right to decent, safe, and sanitary housing.1

Residents of HUD multifamily complexes cannot use the local PHA to try to get the owner to make repairs or abate their rent because the landlord’s contract for subsidy payment is directly with HUD. When confronted with a need for repairs, tenants should report maintenance concerns to management of the complex. If the problem is not rectified in a timely fashion, the tenant should make a complaint to their local HUD field office. The tenant may also call the HUD National Multifamily Clearinghouse at 1-800-685-8470 or the HUD Office of the Inspector General Hotline to report fraud, waste, or mismanagement at 1-800-347-3735. This approach may be successful in getting the repairs made to the premises. If HUD cancels its contract with the owner or forecloses on a HUD-insured mortgage, the tenant may then be eligible for replacement housing in the form of relocation vouchers and relocation assistance payments.

Note that HUD is implementing new standards to replace HQS starting in 2023 across all HUD programs.2

3.2 Rural Rental Housing Program

3.2 Rural Rental Housing Program aetrahan Mon, 01/23/2023 - 16:38

3.2.1 Introduction

3.2.1 Introduction aetrahan Tue, 01/24/2023 - 09:52

Many rural residents face the dual problem of limited income and a chronic lack of affordable housing. Section 515 Rural Rental Housing is managed by the U.S. Department of Agriculture (USDA)1 . The Rural Housing Service (RHS) is authorized to make loans to provide rental housing for low- and moderate-income families in rural areas. Section 515 multifamily properties may have two types of units: “subsidized” and “unsubsidized.” Tenants in “unsubsidized” units pay a “basic rent” that is below market or 30% of their adjusted income, whichever is greater2 . The property may also have “subsidized” units that have a deeper subsidy either through RHS or a different source. The tenants in these units pay 30% of their income on rent3 . Tenants also receive a utility allowance4 . Though rarely used for this purpose, Section 515 loans may also be used for congregate housing for the elderly and people with disabilities.

  • 142 U.S.C. § 1485.
  • 27 C.F.R. § 3560.203.
  • 3Id.
  • 47 C.F.R. § 3560.202.

3.2.2 Eligibility

3.2.2 Eligibility aetrahan Tue, 01/24/2023 - 09:54

In order to be eligible for occupancy, the tenant must be a United States citizen or qualified non-citizen and qualify as a very-low, low, or moderate-income household, or, if a tenant receives other housing benefits such as Section 8 assistance, be eligible under the requirements of those programs1 . Applicants to Rural Rental Housing are entitled to appeal an admission denial through a grievance process2 .

  • 17 C.F.R. § 3560.152.
  • 27 C.F.R. § 3560.160(d)(6).

3.2.3 Lease Requirements

3.2.3 Lease Requirements aetrahan Tue, 01/24/2023 - 10:09

Borrowers must use a lease approved by USDA and that complies with 7 C.F.R. § 3560.156 and state law. Some lease requirements are:

  • Lease must be in writing.
  • Initial lease must be for a 1-year term.
  • If the tenant is not subject to occupancy termination, a renewal lease or lease extension must be for a 1-year period.
  • Lease must contain procedures that the borrower and the tenant must follow in giving notice required under terms of the lease including lease violation notices.
  • Lease must contain procedures for resolution of tenant grievances consistent with the requirements of 7 C.F.R. § 3560.160.
  • Lease must have terms under which a tenant may, prior to lease expiration, terminate the lease for good cause with 30 days’ notice.

3.2.4 Eviction

3.2.4 Eviction aetrahan Tue, 01/24/2023 - 10:10

The only grounds for termination or non-renewal of the lease are material noncompliance or other good cause.1  Section 515 tenants have a right to cure any violation before eviction.2  A tenant may not be evicted when the lease expires unless there has been a lease violation or the tenant is no longer eligible.3  Borrowers may evict a tenant for criminal activity or alcohol abuse by household members in accordance with provisions of 24 C.F.R. §§ 5.858–5.861.4

A borrower who proposes to take an adverse action against a tenant must notify the tenant in writing by certified mail or hand delivery and give the specific reasons for the proposed action.5  The notice must state a specific date by which lease termination will occur; state the basis for the lease termination with specific reference to the provisions of the lease or occupancy rules that have been allegedly violated; explain the conditions under which the borrower may initiate judicial action to redress the lease violation;6  and state that the tenant has an opportunity to correct the violation.

Subsequently, termination may only occur when the incidences related to the termination are documented and there is documentation that the tenant was given notice prior to the initiation of the termination action that their activities would result in occupancy termination.7

Note that a grievance is not available for “lease violations by the tenant that would result in the termination of tenancy and eviction.”8

  • 17 C.F.R. § 3560.159.
  • 27 C.F.R. § 3560.159(a).
  • 3See 7 C.F.R. § 3560.158.
  • 47 C.F.R. § 3560.159(d).
  • 57 C.F.R. § 3560.160(e).
  • 624 C.F.R. § 3560.159(b).
  • 724 C.F.R. § 3560.159(a).
  • 824 C.F.R. § 3560.160(b)(2).

3.2.5 Grievances

3.2.5 Grievances aetrahan Tue, 01/24/2023 - 10:12

An applicant or tenant who wants to contest an adverse action must make a written request for a meeting within 10 calendar days. If the grievance is not resolved to the tenant’s satisfaction, the borrower has 10 calendar days to prepare a written summary of the meeting including the borrower’s position, the tenant’s position, and results of the meeting.1

The tenant then has 10 days calendar days from receipt of this summary to request a hearing from the owner. A hearing panel is then selected, and a hearing is scheduled within 15 calendar days after receipt of the tenant’s request. A tenant has a right to examine and copy records and regulations.2  At the hearing, the tenant has the right to be represented by a lawyer or another representative, to present written and oral evidence, to present witnesses or refute and cross-examine witnesses, and to a decision based solely upon the facts presented at the hearing.3  A written decision from the formal hearing must be prepared within 10 calendar days. The decision must be sent to the RHS for review to ensure compliance with USDA regulations. Upon receipt of the decision, the owner and the tenant must take the actions (or refrain from taking the actions) specified in the decision.4

There are some exceptions to the grievance and appeals procedure, including RHS-authorized rent or rule changes, discrimination complaints, disputes between tenants, and some evictions.5

  • 124 C.F.R. § 3560.160(f).
  • 224 C.F.R. § 3560.160(g).
  • 324 C.F.R. § 3560.160(h).
  • 424 C.F.R. § 3560.160(i).
  • 57 C.F.R. § 3560.160(b)(2).

3.3 Homeless Assistance Programs and Supportive Housing for People with Disabilities

3.3 Homeless Assistance Programs and Supportive Housing for People with Disabilities aetrahan Tue, 01/24/2023 - 10:14

3.3.1 Supportive Housing

3.3.1 Supportive Housing aetrahan Tue, 01/24/2023 - 10:14

This program allows nonprofit organizations to receive funding for many services, including transitional housing for persons currently homeless and permanent housing for homeless individuals with disabilities. Transitional housing assistance is designed to facilitate the movement of homeless individuals to independent living within 24 months (or a longer period as determined by HUD to be necessary to make the transition). Residents may be required to pay up to 30% of their adjusted income as their share of rent. Participants in this type of program may be required to leave the program at the end of the period or if they violate program rules. Termination is to be viewed as last resort, and the termination process requires that the residents be given written notice with a clear statement of the reasons for the termination. Residents are entitled to appeal the decision with an opportunity to present oral or written objections to a person other than the person who made the adverse decision or a subordinate of that person. A prompt written notice of the final decision is required.1

  • 124 C.F.R. § 583.300(i).

3.3.2 Shelter Plus Care

3.3.2 Shelter Plus Care aetrahan Tue, 01/24/2023 - 10:14

Since 1992, HUD has awarded Shelter Plus Care funds to state and local governments and PHAs to serve homeless persons with disabilities such as serious mental illness, chronic substance abuse, and AIDS and related diseases. The program was created on the premise that housing and services need to be connected in order to ensure stability of housing for this population. The funds can be used to provide rental assistance in four ways: tenant-based rental assistance, sponsor-based rental assistance, project-based rental assistance, and moderate rehabilitation for single-room-occupancy dwellings (SROs). Only tenant-based rental assistance travels with the participant. Residents may leave a project or sponsor-based rental assistance program and be readmitted. The resident’s share of the rent is set at 30% of the resident’s adjusted income. The occupancy agreement is automatically renewable upon expiration, except on prior notice by either the tenant or the landlord. Residents may be terminated from the program if they violate program requirements, but termination is viewed as a last resort.1  The termination process requires written notice and an opportunity for a review of the decision, in which the participant is given the opportunity to present written or oral objections before a person other than the person (or a subordinate of that person) who made or approved the termination decision.2

  • 124 C.F.R. § 582.320(a)–(b).
  • 2Id.

3.3.3 Continuum of Care Programs

3.3.3 Continuum of Care Programs aetrahan Tue, 01/24/2023 - 10:15

The Supportive Housing Program and the Shelter Plus Care program were consolidated with other “legacy” homeless services programs under the Continuum of Care (CoC) program through the Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009.1  

While individual program regulations still apply, HUD also issued interim regulations for CoC recipients and subrecipients in 2012.2

  • 142 U.S.C. 11381, et seq.
  • 224 C.F.R. § 578.

3.4 Low-Income Housing Tax Credit Program

3.4 Low-Income Housing Tax Credit Program aetrahan Tue, 01/24/2023 - 10:16

The Low-Income Housing Tax Credit program (LIHTC) was created to provide the private market with an incentive to invest in affordable rental housing. Federal housing tax credits are awarded to developers of qualified projects (the “general partner”). Developers then sell these credits to investors (the “limited partner”) to raise capital for their projects, thereby reducing the debt that the developer would otherwise have to assume in order to finance the project. Because the debt is lower, a tax credit property can in turn offer lower, more affordable rents. If the property maintains compliance with program requirements, investors receive a dollar-for-dollar credit against their federal tax liability each year over a period of 10 years. The developer must generally agree to rent at least 20% of the units to families with incomes at or below 50% of area median income or 40% of the units to families with incomes at or below 60% of area median income for a period of at least 30 years. The LIHTC program is governed by 26 U.S.C. § 42.

The second 15 years of the 30 year-affordability period is called the “extended use period.” LIHTC properties must continue their affordability commitment through the “extended use period” unless (1) the property is foreclosed on, or (2) the property applies to the state housing finance agency for a “Qualified Contract” and the state is unable to obtain a buyer for the low-income portion of the building.1  However, at the time of this writing the Louisiana Housing Corporation requires all LIHTC applicants to waive their right to seek a Qualified Contract after 15 years, so most LIHTC properties will have a minimum 30-year commitment.

Many tax credit deals involve a non-profit developer as the general partner. Under the governing statute, after the affordability period expires, the non-profit general partner holds a contractual right of first refusal to purchase the building from the investor at a minimal cost in order to keep the property affordable.2

Louisiana Housing Corporation (LHC) is the Louisiana state housing finance agency that administers the LIHTC program. LIHTC units are rent-restricted, but the rent is not income-based like in many HUD subsidy programs. A tenant will need a secondary subsidy, like a Permanent Supportive Housing subsidy or a Section 8 voucher, to restrict rent based on the tenant’s income. Owners who participate in the program cannot refuse to provide housing to Section 8 voucher holders merely because of their status as voucher holders.3  For a list of LIHTC properties in your area, check the HUD website.4

The LIHTC statute requires good cause for lease termination, and courts across the country have held that good cause is required for lease termination or non-renewal of a LIHTC lease.5  The IRS issued a formal ruling requiring all owners of LIHTC properties to place good cause eviction requirements in the recorded property restrictions.6  In 2021, LHC adopted a lease addendum that explicitly requires good cause for eviction from Louisiana LIHTC properties, in line with its regulatory agreement and the federal statute. LHC also adopted a criminal records screening policy that substantially limits the types of criminal records for which a tenant can be denied admission to a LIHTC property.7

There is a full-time adult student exclusion in the LIHTC program that may negatively impact some low-income clients. The student exclusion does not apply to adult students who receive social security benefits, who are enrolled in certain job training programs, or are single parents.8  Advocacy issues arise with the full-time student exclusion when there is a dual subsidy on the unit, for example a public housing subsidy and a LIHTC subsidy. HUD has issued guidance making it clear that a HUD-subsidized tenant may only be terminated for reasons permissible under HUD rules. So, a HUD tenancy may not be terminated just because the tenant is a full-time student in violation of LIHTC rules.9  In other words, where HUD rules are less restrictive than LIHTC rules, the HUD rules apply.

The National Housing Law Project has building a useful guide to tenants’ rights in LIHTC properties.10

  • 126 U.S.C. § 42(h)(6)(E).
  • 226 U.S.C. § 42(i)(7).
  • 326 C.F.R. § 42-5(c)(1)(xi).
  • 4LIHTC Database Access.
  • 5The requirement is based on 26 U.S.C. § 42(h)(6)(E)(ii). The requirement is also in the Louisiana Housing Corporation’s tax credit regulatory agreement recorded against each LIHTC property. See Mendoza v. Frenchman Hill Apts. Ltd. P’ship, 2005 U.S. Dist. LEXIS 47373, at 11, 2005 WL 6581642 (E.D. Wash. Jan. 20, 2005) (“[T]plain language of the statute supports the Plaintiffs’ contention that the good cause requirement shall be in effect for the entirety of the low-income housing commitment.”); V.I. Cmty. Hous., L.P. v. Rivera, 50 V.I. 179, 187 (V.I. Super. Ct. 2008) (“[U]nder the LIHTC regulations, [tenant] is entitled to protection and should not be evicted at the expiration of her lease, absent good cause.”); Carter v. Md. Mgmt. Co., 835 A.2d 158, 168–69 (Md. 2003) (“[W]hatever term may be stated in the lease, a . . . tenant may not be evicted by a landlord who has qualified for a § 42 tax credit and is continuing to receive rent subsidies, either during the term of the lease or at the expiration of that term, except for conduct or circumstances that qualify under the Federal law as good cause.”); Cimarron Vill. Townhomes v. Washington, 1999 Minn. App. LEXIS 890, at 6, 1999 WL 538110 (Minn. Ct. App. July 27, 1999) (holding that the prohibition on eviction of low-income tenants from LIHTC units without good cause applies to the entire period of an extended commitment agreement, not just to the tenant’s initial lease term).
  • 6IRS Rev. Rul. 2004-82, Q & A 5 (2004).
  • 7See La. Hous. Corp., Low-Income Housing Tax Credit Program Compliance Manual app. B.1–2 (Dec. 2022).
  • 826 U.S.C. § 42(i)(3)(D).
  • 9Memorandum from Benjamin T. Metcalf, Deputy Assistant Sec’y for Multifamily Hous. Programs, HT, Occupancy Protections for HUD-Assisted Households in Properties with Low-Income Housing Tax Credits (Jan. 2, 2015).
  • 10Nat’l Hous. L. Project, An Advocate’s Guide to Tenants’ Rights in the Low-Income Housing Tax Credit Program (2021).

4 Other Subsidized Housing Issues

4 Other Subsidized Housing Issues aetrahan Tue, 01/24/2023 - 10:22

4.1 Domestic Violence

4.1 Domestic Violence aetrahan Tue, 01/24/2023 - 10:23

4.1.1 Violence Against Women Act

4.1.1 Violence Against Women Act aetrahan Tue, 01/24/2023 - 10:23

Title VI of VAWA sets out certain protections for tenants in most federally subsidized housing programs.1  VAWA was reauthorized in 2022.2  Covered programs include:

Department of Housing and Urban Development (HUD)

  • Public housing3
  • Section 8 Housing Choice Voucher Program4
  • Section 8 project-based housing5
  • Section 202 housing for the elderly6
  • Section 811 housing for people with disabilities7
  • Section 236 multifamily rental housing8
  • Section 221(d)(3) Below Market Interest Rate (BMIR) housing9
  • HOME Investment Partnership Program10
  • Housing Opportunities for Persons with AIDS (HOPWA)11
  • McKinney-Vento Act homelessness programs (including Continuum of Care Permanent Supportive Housing)12

Department of Agriculture

  • Section 515 Rural Rental Housing13
  • Sections 514 and 516 Farm Labor Housing14
  • Section 533 Housing Preservation Grants15
  • Section 538 multifamily rental housing16

Department of Treasury

  • Low-Income Housing Tax Credit (LIHTC)17

​​​​​It does not cover the Rural Housing Voucher Program under § 542 of the Housing Act of 1949.18  It also does not cover private market housing without any type of rental subsidy (though the Louisiana Violence Against Women Act may cover certain private market tenants).19  For VAWA, protected tenants must be victims of actual or threatened domestic violence, dating violence, or stalking, or an immediate family member of the victim. PHAs must inform tenants and owners of their rights and obligations under VAWA.20

  • 134 U.S.C. § 12491.
  • 2S. 3623, 117th Cong. (2022) (enacted).
  • 334 U.S.C. § 12491(a)(3)(H) (referencing 42 U.S.C. § 1437d).
  • 434 U.S.C. § 12491(a)(3)(H) (referencing 42 U.S.C. § 1437f).
  • 5Id.
  • 634 U.S.C. § 12491(a)(3)(A) (referencing 12 U.S.C. § 1701q).
  • 734 U.S.C. § 12491(a)(3)(B) (referencing 42 U.S.C. § 8013).
  • 834 U.S.C. § 12491(a)(3)(G) (referencing 12 U.S.C. § 1715z–1).
  • 934 U.S.C. § 12491(a)(3)(F) (referencing 12 U.S.C. §17151(d)).
  • 1034 U.S.C. § 12491(a)(3)(E) (referencing 42 U.S.C. § 12741, et seq.).
  • 1134 U.S.C. § 12491(a)(3)(C) (referencing 42 U.S.C. § 12901, et seq.).
  • 1234 U.S.C. § 12491(a)(3)(D) (referencing 42 U.S.C. § 11360, et seq.).
  • 1334 U.S.C. § 12491(a)(3)(I) (referencing 42 U.S.C. § 1485).
  • 1434 U.S.C. § 12491(a)(3)(I) (referencing 42 U.S.C. §§ 1484, 1486).
  • 1534 U.S.C. § 12491(a)(3)(I) (referencing 42 U.S.C. § 1490m).
  • 1634 U.S.C. § 12491(a)(3)(I) (referencing 42 U.S.C. § 1490p-2).
  • 1734 U.S.C. § 12491(a)(3)(J) (referencing 26 U.S.C. § 42).
  • 1842 U.S.C. § 1490r.
  • 19For additional information regarding protections under Louisiana law, see Section 1.7 of this manual's chapter on landlord-tenant law.
  • 2042 U.S.C. §§ 1437d(u)(2)(B), 1437f(ee)(2)(B).

4.1.2 Admission

4.1.2 Admission aetrahan Tue, 01/24/2023 - 10:30

An individual’s status as a survivor of domestic violence, dating violence, or stalking cannot form the basis for denial of admission or housing assistance.1  However, VAWA does not require PHAs to create a preference for survivors of abuse when making admissions decisions.

  • 134 U.S.C. § 12491(b); see also 42 U.S.C. §§ 1437d(c)(3), 1437f(c)(9)(A), (o)(6)(B).

4.1.3 Safety Moves

4.1.3 Safety Moves aetrahan Tue, 01/24/2023 - 10:30

A PHA may permit a family with a Section 8 voucher to move to another jurisdiction if the family is in compliance with other obligations of the program and is moving to protect the health or safety of an individual who is or has been the victim of domestic violence, dating violence, or stalking.1  The move may be permitted even if the family’s lease has not expired. A tenant may incur liability from the owner for breaking the lease.

HUD requires that PHAs adopt an Emergency Transfer Plan that allows tenants to make an internal emergency transfer under VAWA when a safe unit is available.2

4.1.4 Eviction

4.1.4 Eviction aetrahan Tue, 01/24/2023 - 10:31

VAWA establishes an exception to the federal “one-strike” criminal activity rule. Criminal activity that is directly related to domestic violence, dating violence, or stalking does not constitute grounds for terminating assistance, tenancy, or occupancy of the victim or an immediate family member of the victim.1  However, a PHA or owner may still evict a tenant if the PHA or owner can demonstrate an “actual or imminent threat” to other tenants or employees of the property if the tenant is not evicted.2  VAWA also does not protect tenants for acts for which they are being evicted if those acts are unrelated to domestic violence, dating violence, or stalking.3

A PHA or owner may bifurcate a lease to evict, remove, or terminate assistance to any tenant who is a participant in public housing or Section 8 programs and who engages in criminal acts of violence against family members or others.4

PHAs and owners may, but are not required to, ask an individual for certification that he or she is a victim of domestic violence, dating violence, or stalking if the individual seeks to assert VAWA’s protection. Any request for certification must be in writing.5

  • 134 U.S.C. § 12491(b); see also 42 U.S.C. §§ 1437d(l)(5), 1437f(c)(9)(B), (d)(1)(B), (o)(7)(C), (o)(20)(A).
  • 2See 42 U.S.C. §§ 1437d(1)(6)(E), 1437f(o)(7)(D)(v), (20)(D)(iv).
  • 3See 42 U.S.C. §§ 1437d(1)(6)(D), 1437f(c)(9)(C)(iv), (o)(20)(D)(iii).
  • 434 U.S.C. § 12491(b)(3)(B); see also 42 U.S.C. §§ 1437d(1)(6)(B), 1437f(o)(7)(D).
  • 5See 42 U.S.C. §§ 1437d(u)(l), 1437f(ee)(1).

4.1.5 Required Documentation

4.1.5 Required Documentation aetrahan Tue, 01/24/2023 - 10:33

Under VAWA, a survivor of domestic violence may provide as documentation within 14 days of a request any one of the following:

  • A completed HUD Certification of Domestic Violence form, currently HUD Form 5382
  • A document signed by the survivor and an employee, agent, or volunteer of a victim service provider, an attorney, or medical professional, or a mental health professional that specifies under penalty of perjury that the professional believes the incident or incidents of domestic violence, dating violence, sexual assault, or stalking occurred and meet the definition of “domestic violence,” “dating violence,” “sexual assault,” or “stalking” in HUD’s regulations at 24 C.F.R. § 5.2003
  • A record of a federal, state, tribal, territorial or local law enforcement agency, court, or administrative agency
  • At the discretion of the housing provider, a statement or other evidence provided by the applicant or tenant1

HUD Form 5383 can be used for an emergency transfer request under VAWA.

  • 134 U.S.C. § 12491(c); 24 C.F.R. § 5.2007(b).

4.1.6 Cause of Action under VAWA

4.1.6 Cause of Action under VAWA aetrahan Tue, 01/24/2023 - 10:34

In United States v. Morrison, the U.S. Supreme Court ruled that the portion of VAWA providing a private cause of action for survivors of crimes of violence motivated by gender is unconstitutional.1  Whether this holding extends to the separate housing provisions of VAWA is an open question that has not been settled in the Fifth Circuit.2

A number of district courts across the country have ruled that Morrison applies to the housing provisions of VAWA, and therefore there is no private cause of action against a housing provider that violates VAWA.3  However, there is an argument to be made that there may be a cause of action under § 1983 against a housing provider for violation of VAWA, but the question is yet unsettled.4  In the alternative, a violation of VAWA by a housing provider may give rise to a cause of action under the Fair Housing Act for discrimination on the basis of sex.5

Of course, a housing provider’s violation of VAWA may violate a tenant’s lease and give rise to state-law cause of action for breach of contract. Housing Choice Voucher Program and Project-Based Voucher Program leases are subject to HUD Tenancy Addendums that include VAWA provisions. Many HUD subsidy programs require a VAWA addendum to the lease agreement. Because the validity of the federal claims under VAWA is uncertain, be sure to include these claims in addition to any federal claims.

  • 1529 U.S. 598 (2000).
  • 2McCoy v. Hous. Auth. of New Orleans, No. 15-398, 2016 U.S. Dist. LEXIS 118745, at *51, 2016 WL 4592162, at *15 (E.D. La. Sep. 2, 2016) (stating that the Fifth Circuit has not yet decided the issue and declining to rule on it), aff’d, 714 F. App’x 322 (5th Cir. 2017).
  • 3Bezi v. Camacho, 2012 U.S. Dist. LEXIS 162852, at *61–62, 2012 WL 5519386, at *19 (C.D. Cal. Sep. 28, 2012); Hobby v. Hous. Auth. of New Haven, No. 3:11cv1962, 2012 U.S. Dist. LEXIS 126027, at *5–6, 2012 WL 3727267, at *2 (D. Conn. Jan. 9, 2012); Louis v. N.Y.C. Hous. Auth., 152 F. Supp. 3d 143, 157 n.12 (S.D.N.Y. 2016); Doe v. YMCA of Ne. NY, No. 1:19-CV-456, 2020 U.S. Dist. LEXIS 24223, at *19, 2020 WL 705264, at *6 (N.D.N.Y. Feb. 12, 2020).
  • 4Meister v. Kan. City, No. 09-2433-EFM, 2011 U.S. Dist. LEXIS 19166, at *14, 2011 WL 765887, at *4 (D. Kan. Feb. 25, 2011) (distinguishing the language in the VAWA housing provisions from language analyzed in Banks v. Dallas Housing Authority, 271 F. 3d 605, 611 (5th Cir. 2001), in which no § 1983 cause of action was found and finding that the VAWA language came closer to satisfying the § 1983 test than the statutory provision at issue in Banks, but still declining to rule on the issue).
  • 5Dickinson v. Zanesville Metro. Hous. Auth., 975 F. Supp. 2d 863, 872 (S.D. Ohio 2013) (“[D]ereliction of its obligations under the Violence Against Women Act ("VAWA”) . . . could give rise to an inference that [Defendant Housing Authority] acted with intent to discriminate on the basis of gender.”).

4.2 Public Housing Authority Plans

4.2 Public Housing Authority Plans aetrahan Tue, 01/24/2023 - 10:45

4.2.1 Introduction

4.2.1 Introduction aetrahan Tue, 01/24/2023 - 10:45

In the Quality Housing and Work Responsibility Act of 1998, Congress directed PHAs to submit annual and five-year plans to HUD. The PHA Plan is a comprehensive guide to the PHA’s policies, programs, operations, and strategies for meeting local housing needs and goals. Because the plan controls and sets so many major policies at the local level, the planning process is an important opportunity for legal services advocates, residents, and other community organizations to have an impact on PHA policy affecting both public housing and the Section 8 program. After it is drafted, the PHA plan may also become an important enforcement tool for housing advocates.

4.2.2 Five-Year Plan

4.2.2 Five-Year Plan aetrahan Tue, 01/24/2023 - 10:46

The five-year plan describes the goals and objectives of the PHA for the next five years. It is a long-range plan that should help you determine the PHA’s future direction. For example, you may be able to tell if your PHA is planning to shift its mission to providing housing for moderate-income persons instead of using most of its resources to house extremely low-income persons. The details of the PHA plan will be in the one-year plans.

4.2.3 Annual Plan

4.2.3 Annual Plan aetrahan Tue, 01/24/2023 - 10:46

The annual plan is a public document that must be prepared in consultation with residents through one or more Resident Advisory Boards (RABs). RABs must represent the interests of both public housing residents and Section 8 residents. PHAs must make resources available to the RAB so that it may have meaningful input into the drafting of the plan. PHAs must hold public hearings to gather input from interested individuals and organizations. After the public hearings, the PHA is supposed to continue to work in partnership with the RAB in deciding whether to modify the plan after the hearings.

The annual plan is about the operations, programs, and services which the PHA will have for the upcoming fiscal year. It must contain 18 specific topics, describe discretionary policies that apply to public housing and Section 8 tenants, and describe all other rules and policies of the PHA. The one-year plan must have all the information that HUD requires and must be consistent with information and data available to HUD and the PHA, with the local Consolidated Plan, and with civil rights and other federal laws.

4.3 Louisiana Statutes

4.3 Louisiana Statutes aetrahan Tue, 01/24/2023 - 10:47

In Act 1188 of 1997, Louisiana comprehensively revised of La. R.S. 40:381, et seq., which purports to regulate federally funded housing programs. The law, which is extraordinarily one-sided, tries to vest PHAs with broad powers and maximum discretion. Many of Act 1188’s provisions appear to be unlawful because they conflict with federal housing law or the Fair Housing Act.1  Because federal law is supreme, contrary state laws cannot authorize a PHA to violate federal law.

PHA actions based on La. R.S. 40:381, et seq. may require new advocacy strategies. A PHA must follow its own rules even when it has discretion.2  Actions that are “arbitrary” are still unlawful under La. R.S. 40:486. Arbitrary actions should be subject to judicial review.

  • 1See Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268 (1969) (holding that federal law is binding on housing authorities and state courts).
  • 2Simmons v. Block, 782 F.2d 1545 (11th Cir. 1986); Gov’t of Virgin Islands v. Brown, 571 F.2d 767, 772 (3d Cir. 1978).

4.4 Displacement and Relocation Assistance

4.4 Displacement and Relocation Assistance aetrahan Tue, 01/24/2023 - 10:49

Demolition and large-scale “modernization” of subsidized housing projects have resulted in the displacement and relocation of thousands of residents. Subsidized tenants displaced by redevelopment may be entitled to relocation benefits under the Uniform Relocation Act (URA).1 The federal Fifth Circuit Court of Appeals rendered an opinion in 2022 that limits the definition of "displaced person" under the URA.2

Some of the benefits to which residents are entitled under the URA include a comparable replacement dwelling (which may be another subsidized unit or a voucher),3 relocation advisory services and counseling,4 replacement housing payments for up to 42 months,5 and money to cover moving expenses.6  

Some of the benefits to which residents are entitled under the URA include active participation in the revitalization effort; notice clarifying residents’ right to return, that most displacements will be permanent, not temporary, and that benefits will be paid for moves; comparable replacement housing including other public housing, a Section 8 voucher, or some other option; adequate counseling regarding housing options; assistance in locating other housing; relocation benefits, which may include payments up to $125 per month for a maximum of 42 months after displacement;7  and notice of appeal rights.8

Note that demolition or disposition of traditional public housing is governed by Section 18 of the Housing Act of 1937, and the URA does not apply.9  However Section 18 has its own relocation assistance requirements that are similar to the URA.

  • 142 U.S.C. § 4601, et seq.; 49 C.F.R. § 24.201, et seq. (relocation requirements); see generally U.S. Dep’t of Hous. & Urb. Dev., Handbook 1378, Tenant Assistance, Relocation and Real Property Acquisition Handbook (2019).
  • 2Jackson v. U.S. Dep’t of Hous. & Urb. Dev., 38 F.4th 463 (5th Cir. 2022). 
  • 342 U.S.C. §§ 4601(10), 4625(c)(3); 49 C.F.R. § 24.2(a)(6).
  • 449 C.F.R. § 24.205(c)(2)(ii)–(iv).
  • 524 C.F.R. § 24.402(b).
  • 649 C.F.R. § 24.301.
  • 742 U.S.C. 4624(a); see Renfroe v. Hous. Auth. of New Orleans, No. 2003-3613, 2004 WL 1630496 (E.D. La. July 14, 2004); Relocation—Federal Law, 34 Hous. L. Bull. 171 (2004).
  • 8If the displacing agency fails to notify the resident of these appeal rights, the resident is not required to exhaust administrative remedies when seeking enforcement of the Uniform Relocation Act prior to filing suit in court. See Renfroe, 2004 WL 1630496; Relocation—Federal Law, supra.
  • 942 U.S.C. § 1437p; 24 C.F.R. § 970, et seq.

5 Selected Louisiana Case Law

5 Selected Louisiana Case Law aetrahan Tue, 01/24/2023 - 10:52

5.1 Utilities

5.1 Utilities aetrahan Tue, 01/24/2023 - 10:53

5.1.1 Individual Check Metering

5.1.1 Individual Check Metering aetrahan Tue, 01/24/2023 - 10:53

Many states allow individual check metering. However, in Louisiana, PHAs are not permitted to institute surcharges based upon check metering. Federal regulations that govern public housing state that individual check metering shall not be used if it is against local law or the policies of the public service commission. The Louisiana Supreme Court ruled in LaNasa v. New Orleans Public Service Commission, Inc. that the resale of electricity through check meters, even in the absence of profit, violated the contract between the customer and the utility company and was against New Orleans Public Service Commission policy prohibiting the resale of electricity.1

From time to time, Louisiana PHAs try to impose charges for utility usage on tenants in master-metered complexes through the use of individual check metering. PHAs may try to set surcharges for excess utility usage or try to use check metering due to pressure from HUD and rising costs. Each PHA must submit an annual budget showing projected income and expenses for the rental of their complexes. Once HUD approves the budget, HUD pays the difference between expenses and income to the PHA. If there is less rent collected or if expenses are higher than anticipated due to high PHA-paid utility costs, for example, the amount of the operating subsidy is insufficient to cover the costs of running the development. Should a Louisiana PHA seek to impose excess utility charges or individual check metering, an advocate should be able to mount a successful legal challenge.

  • 166 So. 2d 332 (La. 1953).

5.1.2 Utility Allowances

5.1.2 Utility Allowances aetrahan Tue, 01/24/2023 - 10:55

Junior v. Housing Authority of New Orleans.1  A consent judgment required HANO to increase the utility allowance schedules that HANO used for its public housing tenants who had tenant-paid utilities. Any former tenant surcharged for electricity consumption after 1-1-82 and before 11-23-88 was entitled to a $250 offset against any debt owed to HANO.

Sylvester v. HUD.2  HUD and the PHA agreed in this consent judgment to increase utility allowances for tenants participating in its Section 8 Moderate Rehabilitation program. $500,000 in refunds were obtained for current and former tenants.

Desire Area Resident Council v. Housing Authority of New Orleans3 . Suit filed on behalf of public housing residents relocated from projects due to demolition or redevelopment under the Uniform Relocation Act. Basis of suit was that the displaced tenants estimated average utility costs had increased under the Section 8 programs or other housing to which they had been relocated because the PHAs’ utility allowances were too low. As a result of the litigation, the PHA raised its utility allowances to appropriate levels and provided monetary relief to tenants for the difference between the estimated average of utility costs and the inadequate utility allowances.

Johnson v. Housing Authority of Jefferson Parish.4  Suit filed based on parish’s failure to adjust utility allowances though utility costs had increased more than 10% since the last adjustment. Fifth Circuit reversed the district court and held that the HCVP rent provisions create enforceable rights. Case later settled with adjustments to allowances.

  • 1No. 88-2172 (E.D. La.), 22 Clearinghouse Rev. 1302 (1989).
  • 2No. 88-1134 (E.D. La.), 25 Clearinghouse Rev. 1382 (1992).
  • 3No. 01-1458 (E.D. La).
  • 4442 F.3d 356 (5th Cir. 2006).

5.2 Eviction

5.2 Eviction aetrahan Tue, 01/24/2023 - 10:57

5.2.1 Lease Violation

5.2.1 Lease Violation aetrahan Tue, 01/24/2023 - 10:57

Housing Authority of New Orleans v. Haynes.1  Landlord attempted to evict a public housing tenant for “harboring a fugitive” but failed to prove the existence of a lease between HANO and tenant and failed to prove a violation of the lease because no evidence was presented to show tenant knew of her daughter’s warrant for arrest or took action to help her evade arrest.

200 Carondelet v. Bickham.2  Eviction for alleged drug activity reversed because landlord failed to present any physical evidence, expert testimony, or competent lay testimony to prove by a preponderance of the evidence that Permanent Supportive Housing tenant used or sold illegal drugs on the premises. 

Estates New Orleans v. McCoy.3  Arrest of public housing tenant was insufficient evidence of criminal activity to support judgment of eviction after tenant’s charges were dismissed.

Housing Authority of New Orleans v. Sylvester.4  Judgment of possession reversed in favor of tenant because HANO failed to prove by a preponderance of the evidence that tenant violated lease by committing criminal acts after only presenting a police report. “This Court finds nothing in either state or federal jurisprudence that supports the trial court’s declaration that an arrest of a public housing tenant creates a presumption of criminal activity for purposes of eviction.”

Housing Authority of New Orleans v. King.5  Eviction of public housing tenant for criminal activity based only on inadmissible police report and argument of counsel was reversed.

Guste Homes Resident Management Corp. v. Thomas.6  Off-premises crime where there is no showing of any threat to “health, safety or peaceful enjoyment of the premises” of neighbors or staff did not warrant eviction of public housing tenant.

  • 12014-1349 (La. App. 4 Cir. 05/13/15), 172 So. 3d 91, 104.
  • 22017-0328 (La. App. 4 Cir. 10/25/17), 316 So. 3d 955.
  • 32014-0933 (La. App. 4 Cir. 03/18/15), 162 So. 3d 1179.
  • 42012-1102 (La. App. 4 Cir. 02/27/13), 110 So. 3d 294.
  • 52012-1372 (La. App. 4 Cir. 06/12/13), 119 So. 3d 839.
  • 62012-CA-1493 (La. App. 4 Cir. 5/29/13), 116 So. 3d 987.

5.2.2 Nonpayment

5.2.2 Nonpayment aetrahan Tue, 01/24/2023 - 10:59

Housing Authority of New Orleans v. Lee.1  PHA was estopped from evicting where tenant relied on statement by employee that rent would be accepted late.

Housing Authority of New Orleans v. Wilson.2  Lower court dismissed eviction and ordered rent abated where PHA failed to repair fire damage after tenant reported electrical issue. Fourth circuit found error in granting money judgment in summary proceeding, reversed rent abatement, and clarified denial of eviction.

Housing Authority of New Orleans v. Eason.3  Federal statute prohibiting discriminatory treatment based on bankruptcy did not preclude evicting tenant for having violated lease by not paying rent, even though the back-rent obligation had been discharged in bankruptcy.

New Hope Gardens v. Latin.4  Court held that a tenant who lives in federally subsidized housing may also use the state-law remedy of repair and deduct. However, if the tenant has refused to pay rent without making repairs in an attempt to force the landlord to make repairs, the tenant may be evicted for nonpayment of rent.

  • 1480 So. 2d 998 (La. App. 4 Cir. 1985).
  • 2503 So. 2d 565 (La. App. 4 Cir. 1987).
  • 32009-992 (La. 6/26/09), 12 So. 3d 970 (per curiam).
  • 4530 So. 2d 1207 (La. App. 2 Cir. 1988).

5.2.3 Nonrenewal

5.2.3 Nonrenewal aetrahan Tue, 01/24/2023 - 11:02

Monroe Housing Authority v. Coleman.1  PHA attempted to evict tenant for lease violations or other good cause and claimed tenant’s lease had expired. Eviction was denied because supposedly expired lease was not entered into evidence and there was no evidence tenant had been offered a renewal of the lease and failed to sign.

Housing Authority of Sabine Parish v. Lynch.2  Court upheld a denial of eviction where tenant made angry statements to PHA employee—but did not threaten the employee—and refused one re-inspection—but allowed another. Further, the tenant refused to sign lease renewal documents because he was suspicious as a result of the PHA’s efforts to evict him; nothing showed that he was not eligible to renew.

  • 146,307 (La. App. 2 Cir. 5/25/11), 70 So. 3d 871.
  • 22009-1293 (La. App. 3 Cir. 5/12/10), 2010 WL 1878639.

5.2.4 Notice

5.2.4 Notice aetrahan Tue, 01/24/2023 - 11:04

Apollo Plaza Apartments v. Gosey.1  Court reversed an order evicting a federally subsidized tenant for an alleged lease violation, holding that the notice to vacate served upon the tenant was vague in that it did not specify the grounds for the eviction with enough detail for the tenant to prepare her defense. This case is significant because the notice to vacate was more specific than most notices. It stated the tenant had failed to abide by the rules and regulations of her lease by “using loud and profane language, excessive visitors in and out of her apartment, unauthorized guest staying in the apartment, along with excessive noise coming from your apartment.”

The notice also failed to advise the tenant that she had 10 days within which to meet with the landlord to discuss the termination or to advise her of her right to defend the action in court. The lease required that these statements be contained in the notice of lease termination. Nevertheless, the court held that no prejudice resulted from these omissions.2

200 Carondelet v. Bickham.3  Trial court’s consideration of new allegations noticed the morning of the eviction hearing violated a Permanent Supportive Housing/LIHTC tenant’s due process rights.

Second Zion Baptist Church #1 v. Pamela Jones.4  Where lease requires notice to cure, notice to vacate must be a separate notice and is premature prior to expiration of cure period. “We note that the five days’ notice to vacate, pursuant to La. C.C.P. art. 4701, is not the same as the five days’ written notice to cease and desist activity constituting a ‘nuisance’ under the terms of the lease.”

  • 1599 So. 2d 494 (La. App. 3 Cir. 1992).
  • 2But see Versailles Arms Apartments v. Pete, 545 So. 2d 1193 (La. App. 4 Cir. 1986) (holding that dismissal of the rule for possession is required for a landlord with the same notice provision in his lease that failed to advise the tenant of her right to defend the action in court or her right to meet with the landlord provided insufficient notice); accord Raintree Ct. Apartments v. Bailey, No. 98-C-1138 (La. App. 5 Cir. 1998), 33 Clearinghouse Rev. 343 (Sept.–Oct. 99).
  • 32017-0328 (La. App. 4 Cir. 10/25/17), 316 So. 3d 955.
  • 42017-CA-0926 (La. App. 4 Cir. 4/18/18), 245 So. 3d 9.

5.2.5 Waiver/Lease Modification

5.2.5 Waiver/Lease Modification aetrahan Tue, 01/24/2023 - 11:07

Numerous Louisiana courts have held that a landlord’s continued acceptance of late payment of rent without any advance notice that timely payments will be required in the future establishes a custom that has the effect of altering the lease. At that point, the landlord is not allowed to refuse late rent payments unless notice of strict compliance with the due date is given to the tenant prior to the month for which payment is sought.1

Second Zion Baptist Church #1 v. Pamela Jones.2  Court held that landlord who accepted a pet deposit materially altered a lease with a no-pet clause to allow for pets and could not evict tenant for having a dog on the property.

  • 1Versailles Arms Apartments v. Pete, 545 So. 2d 1193 (La. App. 4 Cir. 1989); Hous. Auth. of Town of Lake Providence v. Burks, 486 So. 2d 1068 (La. App. 2 Cir. 1986); Hous. Auth. of City of Monroe v. Wheatley, 478 So. 2d 569 (La. App. 2 Cir. 1985); Hous. Auth. of Town of Lake Providence v. Allen, 486 So. 2d 1064 (La. App. 2 Cir. 1986).
  • 22017-CA-0926 (La. App. 4 Cir. 4/18/18), 245 So. 3d 9.

5.2.6 Appeal Bond

5.2.6 Appeal Bond aetrahan Tue, 01/24/2023 - 11:09

Steward v. West.1  Payment of rent allowed as bond for subsidized tenant’s injunction against eviction.

Guste Homes Resident Management Corp. v. Thomas.2  Trial court abused discretion by setting appeal bond at $801 where public housing tenant’s rent was only $247 and tenant had previously been granted in forma pauperis status. Court of Appeal ordered bond set at $200.00 and noted “nothing in this Court’s ruling should be construed to prevent realtor from continuing to pay his rent in accordance with the terms of his lease.”

  • 1449 F.2d 324 (5th Cir. 1971).
  • 22019-C-0988 (La. App. 4 Cir. 11/20/19).

5.3 Recertification of Income

5.3 Recertification of Income aetrahan Tue, 01/24/2023 - 11:10

Holly v. Housing Authority of New Orleans.1  Section 8 termination reversed. Court found that tenant did not violate any obligation to inform PHA of changes in family composition by failing to report short-lived marriage. Court ordered PHA to provide tenant with new Section 8 certificate and pay compensatory damages.

Housing Authority of New Orleans v. Jones.2  A public housing tenant who refuses to provide information about earnings or family composition or to otherwise cooperate with the annual recertification process was in violation of her lease and could be evicted.

Versailles Arms Apartments v. Granderson.3  A HUD multifamily complex tenant who refused to recertify his income or family composition for the annual recertification process engaged in material noncompliance with the lease and could be evicted for such noncompliance.

George v. Housing Authority of New Orleans.4  While tenants must cooperate with the recertification process, this consent judgment established the right of Section 8 tenants not to have their rental assistance delayed or denied due to delays with third-party verification of employment income during the recertification process.

  • 1 684 F. Supp. 1363 (E.D. La. 1988).
  • 2470 So. 2d 144 (La. App. 4 Cir. 1985).
  • 3386 So. 2d 1039 (La. App. 4 Cir. 1980).
  • 4No. 88-461 (E.D. La.), 24 Clearinghouse Rev. 1291 (Mar. 1991).

5.4 Non-Rent Charges

5.4 Non-Rent Charges aetrahan Tue, 01/24/2023 - 11:11

Housing Authority of the City of Monroe v. Wheatley.1  Court held that a public housing resident was not responsible for damages assessed against her by the PHA as a result of damage done to her apartment by an intruder and therefore could not be evicted for nonpayment of these damage charges. The damage was caused by her ex-boyfriend, an intruder who was not a guest or otherwise authorized to be in her unit, and she had called the police twice to report the break-in.

  • 1478 So. 2d 569 (La. App. 2 Cir. 1985).

5.5 Grievance Hearings

5.5 Grievance Hearings aetrahan Tue, 01/24/2023 - 11:12

Housing Authority of New Orleans v. Haynes.1  Landlord attempted to evict a public housing tenant for “harboring a fugitive” but failed to meet statutory elements of crime. Tenant was improperly subjected to expedited grievance procedure. “Procedural protections must be strictly adhered to prior to an eviction to protect the rights of, as in this case, a tenant innocent of lease violations.”

  • 12014-1349 (La. App. 4 Cir. 5/13/15), 172 So. 3d 91, 104.

5.6 Demolition

5.6 Demolition aetrahan Tue, 01/24/2023 - 11:12

Anderson v. Jackson.1  After Hurricane Katrina, public housing residents sued HUD and their local housing authority to enjoin plan to demolish their housing projects and replace them with mixed-income developments. The Fifth Circuit affirmed denial of a preliminary injunction, holding that 42 U.S.C. § 1437p, governing demolition of developments, did not create rights that residents could enforce by private suit. Residents also could not sue HUD for monetary damages. But the court did not rule on whether the statute would have supported a claim under the federal Administrative Procedure Act, if the court had been ruling before most of the demolition was complete

  • 1556 F.3d 351 (5th Cir. 2009).

5.7 Reasonable Accommodation

5.7 Reasonable Accommodation aetrahan Tue, 01/24/2023 - 11:13

Renewal Homes v. Laneheart.1  Eviction of tenant with schizophrenia for property damage denied due to landlord’s failure to reasonably accommodate tenant’s disability; “[t]he appellant’s mere participation in the Louisiana Permanent Supportive Housing Program is confirmation that the appellant was, and always has been, aware of the appellee’s disabling condition.”

Mazzini v. Strathman.2  This case established the elements of a prima facia case of failure to accommodate under the Fair Housing Act. The tenant must show that: (1) the tenant suffers from a disability within the meaning of 42 U.S.C. § 3602(h); (2) the owner knew or should have known of the disability; (3) an accommodation is necessary to give the resident an equal opportunity to use and enjoy the dwelling; (4) the requested accommodation is reasonable; and (5) the owner refused to make the accommodation. Here, tenant failed to establish that her depression/anxiety and allergies qualified as a disability under FHA’s definition.

  • 12017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936.
  • 213-0555 (La. App. 4 Cir. 4/16/14), 140 So.3d 253, 257.