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HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.2.2 Section 8 Vouchers

Owner’s Duties. In the Section 8 Voucher program, landlords may develop their own leases, provided that the leases are in writing, contain certain minimal information, and include the required tenancy addendum.299 HUD’s prescribed tenancy addendum,300 which must be attached to every Voucher lease and cannot be changed by agreement of the parties,301 provides that it prevails in case of conflict with any other lease provisi

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.3.1 ACCs

Public housing. The United States Housing Act of 1937 empowers HUD to enter into Annual Contributions Contracts (ACCs) with local housing authorities to finance low-income public housing projects.342 The ACC then governs the relationship between HUD and the PHA. By statute, the ACC must include a provision whereby the PHA agrees to comply with such HUD-prescribed procedures and requirements to ensure “sound management practices” in project operation, including the following regarding maintenance:

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.3.2 HAP Contracts

Under the other Section 8 programs (e.g., New Construction and Substantial Rehabilitation), HUD or a contract administrator enters into the HAP contracts with the Section 8 owners.352 These HAP contracts typically require the owner to comply with applicable regulations,353 including those governing maintenance, and also include an owner’s express covenant to maintain,354 and specify remedies for breach, such as abatement of the assistance

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.4.2 Bedbugs

The resurgence of bedbug infestations nationwide has caused problems for tenants in federal housing. Eradicating these pests can be costly, and preventing re-infestation can be frustrating because bedbugs easily travel from one home to another, through no fault of the residents. Advocates have reported that tenants, landlords and property managers lack useful information about the spread and prevention of bedbugs. In addition, landlords and managers have charged tenants for extermination costs and, in some cases, evicted residents for failure to pay these expensive bills.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.4.3 Smoke-Free Housing

Secondhand smoke presents a health threat to both children and adults. Families living in multi-unit buildings face especially difficult challenges due to the fact that smoke from a neighboring unit can seep through floors, windows, and hallways. Housing providers throughout the country are choosing to implement smoke-free policies to improve public health and reduce the property damage done by secondhand smoke.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.1 Overview

The following discussion identifies causes of action for challenging inadequate maintenance, emphasizing claims unique to the federal housing programs. Causes of action to correct inadequate maintenance include contract claims to enforce the lease; third-party beneficiary claims under federal program contracts; claims based on state enabling statutes for PHAs; tort claims; and claims based on federal law. Requirements concerning lead-based paint are briefly reviewed separately.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.2 Contract Claims under the Lease

For tenants residing in federally subsidized housing, HUD-required lease provisions, as well as any others that a PHA or owner might use, provide a basis for direct enforcement of maintenance requirements. As parties to the lease, tenants may bring an action for damages or may seek other remedies for violation of the lease.469 Advocates should examine the lease for a cause of action based on the PHA’s violation of maintenance obligations under the lease to avoid potential enforcement problems for federal statutory and regulatory claims.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.3 Claims under Program Contracts

To redress substandard conditions, tenants may assert a contract claim for violation of the Annual Contributions Contract between HUD and the PHA for public housing, the Housing Assistance Payments contract for Section 8, or the Regulatory Agreement between HUD and owners of Section 221(d)(3), Section 236 or other subsidized or insured housing projects. Typically, tenants assert the right to bring such a claim as third-party beneficiaries of the applicable contract.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.4 Breach of State Warranty of Habitability

The warranty of habitability is an implied promise by the landlord that the premises are fit for human occupation at the inception of tenancy and that they will remain so throughout the lease term.494 Many jurisdictions have adopted this doctrine.495 The implied warranty of habitability has been applied to private landlord-tenant disputes in significant ways equally applicable to HUD housing programs.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.5 Violation of State Enabling Statute for PHAs

If the maintenance problem concerns public housing, tenants may have an additional claim based upon a violation of the state enabling statute for PHAs, which may be especially useful if asserting claims under the federal statutes and contracts proves to be problematic.511 The viability of this claim will depend on the state enabling statute and case law related to statutorily implied causes of action.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.6 Tort Claims

Depending on state common law and statutes concerning civil duties and immunities, tort claims for substandard conditions may be available. Some state courts have used statutory and implied warranties to establish the landlord’s duty of care.514 Thus, many states now routinely recognize landlord tort liability for negligent failure to maintain the premises.515

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.8.1 Overview

Federal causes of action have played an increasingly limited role in actions challenging substandard conditions in subsidized housing. Several courts have held that there is neither a Section 1983 claim nor an implied right of action to enforce (usually against PHAs and owners) the maintenance standards set forth in the applicable statutes and implementing regulations.532 However, in limited circumstances, causes of action may be available against HUD under the Administrative Procedure Act and against owners under the False Claims Act.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.8.3 False Claims Act

Another potential claim to further PHA and owner compliance with regulatory and contractual conditions for receiving HUD funds is the federal False Claims Act (FCA).553 The FCA forbids parties contracting with the federal government from making false or fraudulent claims for payment, with substantial penalties for violations, including civil money penalties and treble damages.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.1 Overview

An essential component of pursuing redress for substandard conditions is evaluating the nature of the available remedies. What standards will a court or program administrator use to govern the future performance of the housing provider? Whose participation is essential to obtaining the necessary solutions? What kind of monitoring structure is needed to ensure performance over time? Answering these kinds of questions will make it easier to fashion appropriate legal claims, make decisions about choice of forum and negotiate appropriate settlement agreements.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.2 Rent Reductions

A commonly recognized remedy for breach of warranty is rent abatement or reduction, which is the equivalent of contract damages for breach of contract.563 Depending on state law governing summary proceedings, the tenant can use this remedy as a defense, counterclaim or set-off against the landlord’s claim for rent or possession or both, or the tenant can file an affirmative cause of action seeking damages for the landlord’s breach of contract.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.3 Rent Withholding and Rent Strikes

Prior to any judicial or administrative decision on the existence of a breach of warranty, some tenants have utilized the self-help remedy of rent withholding or rent strike to keep rent money out of the hands of a noncomplying landlord. Depending on state statutory and common law concerning any warranty and available remedies, additional restrictions may apply. In some states, rent withholding is statutorily authorized but requires the tenant to deposit withheld rent money into a special escrow account.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.4 Injunctive Relief and Specific Performance

Injunctive relief is often necessary to correct substandard conditions. For injunctive actions against private landlords of Section 8 or subsidized housing, the normal analysis pertaining to injunctive relief will apply. Although specific performance of leases incorporating express and implied warranties, code requirements, or HQS should be available,585 some courts may resist becoming involved in suits requiring judicial oversight of owner performance.

HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.5 HUD Review and Intervention

Public Housing. Statutory authority governs public housing quality, management assessment and HUD intervention, including HUD possession, receivership, or management transfer.599 Few of these HUD powers are mandatory in the sense that they must be exercised in specified circumstances, so convincing the agency to take action under its discretionary authority often will be necessary.600 Where facts fail to persuade, political and media pressure may be required.