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HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.5 First Amendment Speech, Association and Religion Protections

Tenants in public and subsidized housing have basic rights of speech, free association and religion guaranteed by the First and Fourteenth Amendments.745 These rights provide that tenants cannot be prohibited from speaking out or congregating within their home for purposes related to the condition, policies and practices of the project in which they reside746 or for other political or community-related issues.747 First Amendment issues often arise

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.3.1 Overview

The most common sources of tenants’ claims are the federal housing statutes and their corresponding regulations. The statutes and regulations upon which tenants can base their claims will differ depending on the housing program involved. Thus, the first step in determining the statutory or regulatory provisions at issue in a tenant’s or applicant’s claim is to determine what housing program, or combination of programs, applies to the unit.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.3.2 The Federal Housing Acts and Related Statutes

The federal housing statutes are an important foundation for tenants’ claims against landlords, PHAs, HUD, or other program participants. These statutes govern the creation, funding and basic structure for major federal housing programs, outline the relationship and responsibilities of federal agencies, non-federal administrators (such as PHAs or state agencies) and landlords, and, in some cases, identify some tenants’ rights and responsibilities.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.3.2 Amount of EAJA Fee

Several EAJA cases have discussed issues concerning the calculation of the amount of the fee award.1557 Unlike some other fee-shifting statutes, EAJA provides that “attorney fees shall not be awarded in excess of [a fixed amount] unless the court determines that an increase in cost of living or special factors justifies a higher fee.”1558 This statutory presumption has been increased, and the current figure is $125.1559 The inflation rate may

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.3.3 Timing Requirement for EAJA Fee Petition

The statute requires that the fee petition be submitted within 30 days of final judgment.1565 One court has held that a petition was timely as long as it was submitted within 30 days after expiration of the time for appeal or 30 days after final determination of the case upon appeal.1566 Another court has held that the 30-day period begins to run after the final administrative decision upon remand from the agency.1567 Again, it is also critic

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.4 Bad Faith, Common Fund and Substantial Benefit

Where the statutory provisions discussed above are inapplicable, advocates should examine the exceptions to the traditional American rule, which denies fee awards to successful parties in the absence of statutory or contractual authority to the contrary, for a possible source of an award of attorney’s fees. There are three exceptions: (1) bad faith, (2) the “common fund,” and (3) the “common or substantial benefit” theory.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.4 Sub-Regulatory Issuances: HUD Handbooks, Notices and Other Directives

In addition to the regulations published in the Federal Register, HUD regulates the various housing programs through an extensive body of program rules, known as the “Directives System.”848 HUD creates directives to communicate policies, instructions, procedures and guidance for administering different housing programs to HUD officials and non-federal program participants.849 The HUD Directive System Handbook states that the purpose of these directives (sometimes called “issuances”) is

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.5.1 Overview

In addition to published regulations, the federal government uses several regulatory devices to administer its housing programs: program contracts, PHA Plans (including Section 8 Administrative Plans), and Low Income Housing Tax Credit (LIHTC) Qualified Allocation Plans. These documents help define the relationships between federal agencies, state agencies and landlords, and outline the parties’ responsibilities in administering the various housing programs. These documents can also provide bases for tenants’ claims against a federal agency, PHA or landlord.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.5.2 Program Contracts: ACCs, HAP Contracts, Regulatory Agreements, Use Agreements and LIHTC Agreements

Throughout the history of the federal housing programs, the federal government has opted to regulate the non-federal participants more by contractual arrangements than through published regulations. HUD program contracts, such as Annual Contributions Contracts (ACCs), regulatory agreements, and Housing Assistance Payment (HAP) contracts, are between HUD and local agencies or private landlords; the tenants are not signatories. However, the contracts often impose duties upon PHAs and landlords that benefit the tenants.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.2.3 Governmental Immunity and HUD Approval

The issue of immunity arises in attorney fee awards against HUD or a PHA under statute or contract. In determining the amount of an award, sovereign immunity may bar the use of current rates for prior work or interest1490 unless specifically authorized. By contrast, the Eleventh Amendment does not immunize PHAs, as state-created agencies, from Section 1988 fee awards because it does not immunize states from such awards.1491

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.2.4 Special Circumstances Making Fee Award Unjust

Courts generally agree that the prevailing plaintiff will be awarded fees unless special circumstances would make such an award unjust.1493 Courts have rejected as special circumstances claims that: (1) plaintiff’s lawsuit was too simple,1494 (2) an award should not be given to a nonprofit legal services office,1495 (3) the action was promptly settled after filing of the complaint,1496 (4) the

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.2.5 Amount of Fee

Once a party is deemed to be a prevailing party and no special circumstances would make the award unjust, the next issue to be considered is the amount of fees. In determining the actual amount of an award of reasonable fees, most courts begin with a simple calculation of the number of hours worked times the prevailing rate in the community for similar services by lawyers of reasonably comparable skills.1508 The figure so obtained is the lodestar.1509

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.3.3 Federal Regulations

Most of the details for operating the federal housing programs are spelled out in the regulations, rather than the federal statutes. Accordingly, advocates representing aggrieved federal housing tenants or applicants must often consult the regulations when researching sources of legal rights. HUD has issued a numerous regulations governing the operation of the federal housing programs. These regulations are published in the Federal Register and codified in Title 24 of the Code of Federal Regulations.

Consumer Bankruptcy Law and Practice: 5.3.3.1 Generally

Certain types of information, in particular, are frequently overlooked in the handling of bankruptcy cases, especially by practitioners who rely exclusively on questions in the official forms as their interview guide. Given the broad definitions of property and claims in the Code, the forms by themselves are not adequate as a means of inquiring into nontraditional types of assets and debts.

Consumer Bankruptcy Law and Practice: 4.2.1.4 Effect of Prior Bankruptcy Cases

Also, as in chapter 7 bankruptcies, an individual whose prior bankruptcy was dismissed within the previous 180 days may not be eligible for chapter 13 relief. Code section 109(g) bars a debtor from filing a new case if the prior case was (1) dismissed for willful failure of the debtor to abide by orders of the court or to appear before the court in proper prosecution of the case or (2) voluntarily dismissed following a request for relief from the automatic stay of section 362 of the Code.11