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HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.6.8 Intervening parties

To avoid case dismissal due to mooting of named plaintiffs’ claims before class certification, advocates should contact putative class members who could immediately intervene as named plaintiffs. In Comer v. Cisneros, the Second Circuit permitted two parties to intervene because they had standing, their claims and those of the named plaintiffs shared common issues of fact and law, and the intervenors’ claims would neither delay nor prejudice the rights of the original plaintiffs or the class members.600

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.1 Overview

The following section discusses various sources of possible substantive rights upon which tenants may base their affirmative claims. The sources of law discussed herein include: the federal Constitution, federal statutes and regulations, HUD Directives (such as handbooks, notices and circulars), program documents (such as PHA Plans and Section 8 administrative plans), program contracts (such as ACCs, regulatory agreements and HAP contracts), and state and local law.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.1 Overview

Federal constitutional guarantees of procedural and substantive due process, equal protection, First Amendment protections and Fourth Amendment protections are a basic source of affordable housing tenants’ rights. The United States Constitution defines governmental powers and limitations, and protects citizens against certain types of intrusions by the government.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.2 Due Process

The Fifth Amendment Due Process Clause states that no person shall be deprived of life, liberty or property without due process of law.664 The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.”665 There are two types of due process claims: procedural due process and substantive due process.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.4 Takings

The Fifth Amendment’s Takings Clause provides that no private property shall be taken from its private owner for public use, without just compensation.742 Federal housing statutes that are targeted at a specific set of property interests or government contracts can give rise to either breach of contract claims or claims under the Takings Clause.743 The Takings Clause has also been used to enforce tenants’ state relocation rights.744

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.5.4 Enforcing LIHTC Regulatory Agreements

To claim tax credits, the LIHTC statute requires state housing agencies and the taxpayer to enter into an “extended low-income housing commitment.”1290 The commitment contains statutorily-prescribed rent and occupancy restrictions for the property, which are “binding on all successors of the taxpayer,” and the commitment must be recorded as a restrictive covenant pursuant to state law.1291 Moreover, “individuals who meet the income limitation applicable to the building (whether prospective,

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.3.1 When a Preliminary Injuction is Necessary

A preliminary injunction is usually necessary to preserve the status quo and to ensure that plaintiffs will not suffer irreparable harm resulting from the denial of their constitutional and statutorily created rights and benefits during the pendency of their case. In cases involving an imminent eviction or termination, a temporary restraining order1319 is necessary to maintain the status quo until a preliminary injunction hearing can be scheduled.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.4 Temporary Restraining Orders

Federal Rule of Civil Procedure 65(a) requires a hearing before a preliminary injunction may be issued, but tenants often require more immediate relief to prevent irreparable injury. Federal Rule of Civil Procedure 65(b) permits the issuance of a temporary restraining order (TRO) on the applicant’s ex parte motion to preserve the status quo until the hearing on the preliminary injunction. If the opposing party has notice of the application for a TRO, then the hearing may also be treated as one on a preliminary injunction.1356

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.5 Consolidating the Preliminary Injunction with Trial on the Merits

The Federal Rules of Civil Procedure allow the hearing on a preliminary injunction to be consolidated with the trial on the merits, effectively turning the request for preliminary injunction into one for permanent injunction.1362 To avoid prejudice, such consolidation cannot occur without clear and unambiguous notice to the parties.1363 If a court attempts an unannounced consolidation, then advocates should object.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.2 Monetary Relief: Abatement, Restitution and Damages

In many cases, prospective injunctive relief will not adequately correct the effects of unlawful actions taken by HUD, PHAs or private landlords, so it will be necessary to seek some form of financial relief. This can include forgiveness of unpaid rent, refund of excess rents illegally charged, restitution of subsidy benefits wrongfully withheld, and awards of damages as compensation for injury suffered as a result of a defendant’s breach of contract, tort, statutory or constitutional duties.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.3 Declaratory Relief

Tenants may seek judgments that “declare the rights and other legal relations” of the parties.1393 Declaratory judgments provide a useful remedy by which rights and obligations may be judicially determined in cases involving an actual controversy that has not yet reached the point requiring a corrective remedy.1394 One of the purposes of declaratory judgments is to avoid multiplicity and circuity of actions.1395 Declaratory relief is proper w

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.4 Remand to the Agency

In cases challenging an administrative determination under the Administrative Procedure Act (APA),1413 courts may vacate an agency decision and remand the case to the agency if it is determined that the agency failed to consider relevant factors or where there is a clear error of judgment.1414 Federal courts have ordered remands after finding that HUD’s decisions were arbitrary or lacked support in the administrative record.1415 The court may

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.