Defending Evictions and Terminations from Federally-Subsidized Housing

Defending Evictions and Terminations from Federally- Subsidized Housing

Navneet Grewal Western Center on Law and Poverty Lauren DeMartini Bay Area Legal Aid March 2017 (Please switch to polling) 2

Polling Question #1 • How familiar are you with the federally subsidized housing programs? (i.e. public housing, section 8, etc.) ▫ I know nothing about subsidized housing

▫ I have a little knowledge about some subsidized housing programs

▫ I am very familiar with all or most subsidized housing programs

What We Will Cover • Types of Subsidized Housing • How to Identify if Your Client is in Federally Subsidized Housing • Evictions vs. Voucher Terminations • Good Cause Requirement in Subsidized Housing • Notice Requirements • Defenses

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Types of Subsidized Housing • Public Housing • HUD-Subsidized Multifamily • Project-Based Section 8 • Housing Choice Voucher (Section 8 Voucher) • Project-Based Voucher • Low Income Housing Tax Credit • Other types ▫ HOPWA; Shelter Plus Care; Supportive Housing; HOME; state and local subsidies

The Government-Funded Housing Family Tree

HUD

IRS/CTCAC Other Subsidies (Rehabilitation, Sec. 236, etc.)

LIHTC Privately-Owned Buildings

Privately-Owned Buildings Housing Authorities

Project-Based Public Housing Section 8

Section 8 Housing Choice Vouchers 7

Section 8 Housing Choice Voucher 8

What Type of Housing is My Client In?

• Extremely low rent? • Who is the Landlord? • Lease • Regulatory/Use agreements • Is a PHA involved? • If everything else fails, ask the landlord!

(Please switch to polling) 10

Polling Question #2

• What is your experience representing tenants in subsidized housing?

▫ None

▫ I’ve represented subsidized housing tenants in evictions

▫ I’ve represented subsidized housing tenants in terminations

▫ I’ve represented subsidized housing tenants in both evictions and terminations

Eviction v. Section 8 Voucher Termination • Evictions: • Termination: ▫ Public Housing ▫ A PHA can providers, terminate a Multifamily housing participant from the providers, private voucher program landlords leasing to regardless of Section 8 voucher whether or not s/he holders has been evicted from her unit. 12 13

Voucher Terminations

• Terminations of Housing Choice Vouchers (more commonly known as Section 8 vouchers) ▫ Substantive Grounds for Termination and Defenses ▫ Procedural Protections 14

Eviction and Breach of Lease

• Mandatory termination if family is evicted for serious lease violation. 24 C.F.R. 982.552(b). • Discretionary termination ▫ for serious or repeated lease violation. 24 C.F.R. 982.551(e). ▫ if family evicted from federally-assisted housing within last five years 24 C.F.R. 982.552(c)(1).

What is a Serious Lease Violation? • Serious violations (24 C.F.R. § 982.310(a)(1)) ▫ Include but are not limited to nonpayment of rent or other amounts due under lease • Minor violations (HUD Handbook 4350.3 8-13). ▫ Late payments ▫ Keeping unauthorized occupants ▫ Failure to pay utilities ▫ Disruptive behavior ▫ Damaging the property ▫ Failure to pay for repairs for damage caused by tenant

Hypo • The landlord told the PHA that Paula paid her rent 20 days late in February. The landlord also relayed to the PHA that Paula is late on her utility bills. The landlord, however, did not take any actions to evict Paula. If these allegations were true, may the PHA terminate Paula’s assistance? • Answer: ▫ 24 C.F.R. § 982.310(a)(1) ▫ HUD Handbook 4350.3 REV-1 8-13 ▫ Gray v. Allegheny Cnty. Hous. Auth., 8 A.3d 925 (Pa. Commw. Ct. 2010) ▫ Wilhite v. Scott Cnty. Hous. & Redev. Auth., 759 N.W.2d 252, 256 (Minn. Ct. App. 2009)

Other common grounds for termination • Failure to report changes in income or family composition • Failure to cooperate with recertification • Unauthorized occupants • Housing Quality Standards breach • Criminal Activity or Threatening Behavior • Alcohol Abuse

24 CFR §§982.552, 982.553, 5.100

Common Defenses to Termination • Mitigating Factors? ▫ Seriousness of offense ▫ Extent of participation or culpability of individual family members ▫ Mitigating circumstances related to disability ▫ Effects of termination of assistance on other family members who were not involved • Harmless Violations • Exclusion of Culpable Offender from Household • Reasonable Accommodation • Waiver and Laches • Violence Against Women Act (VAWA)

24 C.F.R. 982.552(c)(2)

Hypo • Aunt Marge doesn’t like the crowd her son Bart hangs around with and is afraid that his antics will eventually get her in trouble with Springfield HA. So Marge asks the PHA to take Bart off her voucher, but the PHA has not acted on the request. Last month, Bart was seen in the neighborhood spray painting graffiti and selling drugs. The PHA moves to terminate Marge’s voucher based on Bart’s criminal activity, prompting Marge to turn to the only lawyer in the family, you. Does Marge have a case? • Answer: ▫ 24 C.F.R. 982.552(c)(2) ▫ State ex rel. Smith v. Hous. Auth. of St. Louis Cnty., 21 S.W.3d 854 (Mo. App. 2000)

Governing Law • Due Process Clause • 24 C.F.R. pt. 982 • Administrative law (but CA APA does not apply to terminations by local PHAs) • Administrative Plan • Federal APA does not apply

Procedural Rights • Written notice of grounds for termination • A notice of right to hearing and deadline to request hearing • Right to examine and copy any PHA documents “directly relevant to the hearing.” • Right to be represented at hearing • Right to present evidence and question witnesses • Fair and unbiased hearing officer • Written decision, briefly stating the reasons and based upon the evidence presented at the hearing. • Look at Administrative Plan

24 C.F.R. 982.555

Hypo

• Agatha’s landlord Larry is evicting her for nonpayment of rent. Larry knows about his responsibilities as a Section 8 landlord, so he sends a copy of the notice to the PHA. Upon receiving the eviction notice from Larry, the PHA ceases payments under the HAP contract. Anything wrong with this scenario? • Answer: ▫ 24 C.F.R. 982.555 ▫ DeProfio v. Waltham Hous. Auth., 2007 WL 2367594 (Mass. Super. Ct. July 17, 2007)

Evidence

• The PHA must prove the basis for termination by a preponderance of the evidence. • Judicial rules of evidence do not apply in termination hearings, but participants may challenge the probative value of any evidence offered by the PHA. • PHA’s exclusive reliance on hearsay evidence may violate Due Process. Margaretta E. Homsey, Procedural Due Process and Hearsay Evidence in Section 8 Housing Voucher Termination Hearings, 51 B.C.L. REV. 517 (2010) 24

Administrative Review • The PHA can reverse the hearing officer’s termination decision if the hearing officer exceeded his or her authority or if the decision was contrary to HUD regulations or otherwise contrary to federal, state, or local law. 24 C.F.R. § 982.555(f)(1).

Judicial Review • State Law Remedies ▫ Available in some states, including California (writ of mandate CCP § 1094.5) • Federal Law Remedies ▫ 24 U.S.C. 1983  Due Process  42 U.S.C. 1437d(k)

26 27 Subsidized Housing: Good Cause Requirement • Good cause required: ▫ Public Housing ▫ HUD Multifamily ▫ LIHTC ▫ Shelter Plus Care ▫ HOPWA ▫ Supportive Housing ▫ Continuum of Care • For Vouchers: ▫ Good cause required during lease term (but at all times in an eviction controlled jurisdiction). 28

Notice & Procedural Requirements

• Follow state law procedures • Notice period • Notice language • Service requirements

Notice Period • Different notice periods for: ▫ Nonpayment of rent ▫ Other lease violations ▫ No fault evictions ▫ Vouchers • Federal notice period may run concurrently with state law notice period ▫ Example: CA law requires 3 day notice for nonpayment of rent, but public housing rules require 14 days notice. • Lease may provide for longer notice periods • May have to allow for grievance procedure (public housing) or meeting (HUD Multifamily). 30

Notice Periods Generally

State law Deviation Nonpayment of rent 3 day notice to pay or quit Public housing (14 days) HUD MF (must allow ten days for meeting)

Lease violations 3 day notice to cure HUD MF (must allow ten days for meeting)

Other violations/cause 3 day notice to quit HUD Multifamily & Mod (ongoing nuisance, etc.) Rehab (30 days) Voucher 90 days Notices must:

• include a clear statement of forfeiture ▫ CCP §1174

• be properly served

• Important: Any defect in the notice is a unlawful detainer defense 32

Content of Notice • California law ▫ If violation can be cured, notice must be in alternative, i.e. perform or quit ▫ Notice must state the breach ▫ Non-payment of rent: additional requirements • Public housing (24 CFR 966.4(l)(3)(ii)): ▫ State specific ground for termination ▫ Inform the tenant of her right to respond ▫ Inform the tenant of her right to examine PHA documents ▫ Inform the tenant of her right to request a grievance procedure 33

Content of Notice • HUD Multifamily (24 CFR 247.4; Handbook 4350.3) ▫ Date tenancy is terminated; ▫ Grounds for termination with sufficient specificity to enable preparation of defense (Amount of the balance due and the date of computation for non-payment of rent) ▫ Advise tenant of opportunity to present a defense in any judicial proceeding ▫ Advise tenant of the right to request a meeting with landlord within 10 days ▫ Advise that persons with disabilities have right to reasonable accommodation 34

Content of Notice

• Housing Choice Voucher (24 CFR 982.310(e)) ▫ Ground for termination • LIHTC and HOME ▫ State law and lease agreement

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Common Subsidized Housing Violations • Unauthorized occupants • Recertification issues • Disconnection of utilities due to tenant failure to pay • Criminal Activity/Drug use

Mitigating Factors • PHA or landlord may consider all relevant circumstances ▫ Seriousness of offense ▫ Extent of participation or culpability of individual family members ▫ Mitigating circumstances related to disability ▫ Effects of termination of assistance on other family members who were not involved • Some courts require the PHA/landlord to consider mitigating factors before commencing eviction

Nonpayment of rent • Nonpayment of rent is often a serious lease violation; can also result from termination of subsidy • Defenses ▫ Cal. limitation: cannot demand rent more than one year past due. CCP 1161(2). ▫ Improper calculation of rent; failure to recertify correctly. ▫ Inclusion of other charges with rent ▫ Tender ▫ Warranty of habitability ▫ De minimis breach/Absence of tenant fault ▫ Fair Debt Collection Practices Act; Bankruptcy

Criminal Activity or Threatening Behavior • PHAs and landlords must use leases that allow for termination of tenancy for criminal activity that is: ▫ Drug-related; ▫ Other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises. • The PHA may also terminate if a family member engages in alcohol abuse.

Persons Covered

• Criminal activity must be conducted by tenant, household member, or guest • Distinguish grounds for eviction from grounds for termination (for voucher): actions of guests not basis for termination

Location of Criminal Activity • Drug-related criminal activity: ▫ Public housing: on or off the premises ▫ HUD Multifamily: on or near ▫ Voucher: on or near • Violent criminal activity: ▫ Voucher: on or near • Other criminal activity: ▫ Nexus requirement for all programs: must affect the safety or quiet enjoyment of residents on the premises.

Practice Tips

• Interplay between evictions for serious/repeated violations of the lease and termination of assistance ▫ Effect of resolution of eviction case on voucher termination

Resources • HUD Tenants Rights: HUD Programs (4th ed. 2012 and 2016 supp) (the Green Book) ▫ Order at www.nhlp.org • CEB Eviction Defense/Landlord Tenant Manual ▫ Free access for new lawyers • Rutter Group Landlord Tenant Manual

• Questions? • Navneet Grewal: [email protected] • Lauren DeMartini: [email protected]