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.

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

• 1See 24 C.F.R. § 982.553(a)(1)(ii)(c), (a)(2)(i).
• 224 C.F.R. § 982.554.
• 3See U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 4, 2016); U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 270 (5th Cir. 1979) (hearsay may constitute substantial evidence in an administrative proceeding only if certain reliability factors are present); Sanders v. Sellers-Earnest, 768 F. Supp. 2d 1180, 1185–88 (M.D. Fla. 2010) (Section 8 termination based solely on police report was improper); Edgecomb v. Hous. Auth. of the Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993) (Section 8 termination based solely on police report and newspaper articles was improper).
• 424 C.F.R. § 982.553(a).
• 524 C.F.R. § 982.553(a)(2)(ii)(C)(2).
• 6Id.
• 7Se. La. Legal Servs., Navigating the Criminal Background Screening Policy of the Housing Authority of New Orleans.

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).

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.

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).

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).

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).

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).

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).

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).

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).

• 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).

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).

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).

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).

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).

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.