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).

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  In the case of nonpayment of rent, 14-day notice is typically required.2  However, as of November 8, 2021 and until rescinded by HUD, 30 days’ notice is required for eviction for nonpayment of rent from public housing, and the notice must include information about available rental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).

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).

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.