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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): 7.7.5.7 Unfair and Deceptive Business Practices
Almost all states have enacted statutes to prevent businesses from engaging in unfair or deceptive practices.529 In cases involving inadequate maintenance, advocates have taken action against PHAs and subsidized owners under these laws.530 For instance, courts have found that an owner’s collection of full rent for an unsafe or substandard unit violates these state laws.531
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): 7.7.5.8.2 Administrative Procedure Act
An Administrative Procedure Act (APA)533 claim may be available against HUD for taking actions (e.g., paying subsidies) that violate the maintenance standards in federal housing statutes, regulations and program contracts.
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.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.7.5.9.6 Rehabilitation Programs
Programs providing funds to address maintenance needs at public and privately owned developments have seen dramatic fluctuations in appropriations. The primary rehabilitation program for public housing, the Capital Fund, has been subject to inadequate appropriations.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.8.1 Introduction
Issues regarding security in federally subsidized housing arise in a variety of contexts. Tenants may be victims of violent crimes as a result of a PHA’s or subsidized owner’s failure to provide safety measures such as adequate locks, lighting, fences and security guards. Resident organizations may seek to pressure PHAs and owners to take reasonable actions to address illegal drug activity in subsidized housing.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.8.2 Federal Law Causes of Action
Whether the issue of security is raised in negotiations or in state or federal court, it is important to recognize that in enacting the laws governing Public Housing, Section 8 and other subsidized housing, Congress intended to assist the states in remedying “the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families.”617 The public housing statute requires each PHA to include in its lease an express warranty that it will maintain “decent, safe and sanitary” housing.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.8.3 State Law Causes of Action
In some jurisdictions, state law claims may be available where a tenant was injured due to a PHA or subsidized owner’s failure to provide adequate security. Tenants have brought claims alleging that PHAs and owners breached the lease,624 the implied warranty of habitability,625 the covenant of quiet enjoyment626 and, most commonly, the duty of care under negligence doctrine.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.8.4 PHA Immunity
PHAs often have sought to avoid liability for inadequate security by asserting sovereign immunity. Advocates will need to examine their state law to determine whether the PHA’s actions are entitled to immunity.
HUD Housing Programs: Tenants’ Rights (The Green Book): 7.8.5 Non-Litigation Strategies
Strategies to improve security in low-income housing developments and neighborhoods have not been limited to litigation. In several communities, tenant organizations have undertaken campaigns to improve security in their projects.639 Some of these organizations have moved beyond merely obtaining security, or even enhancing maintenance, to assume responsibility for project management.
HUD Housing Programs: Tenants’ Rights (The Green Book): 8.5 Rental Assistance Demonstration, Hope Vi And Choice Neighborhoods Initiative
The rules governing HUD’s Rental Assistance Demonstration (RAD), HOPE VI, and Choice Neighborhood Initiative (CNI) programs contain specific provisions governing resident participation processes. See discussion on RAD, infra § 12.2.4.