HUD Housing Programs: Tenants’ Rights (The Green Book): 11.3.3.2.1 Overview
This section discusses the eviction requirements set forth in Handbook 4350.3, HUD’s model lease and the regulations at 24 C.F.R. Part 247.
This section discusses the eviction requirements set forth in Handbook 4350.3, HUD’s model lease and the regulations at 24 C.F.R. Part 247.
To evict a tenant from a HUD-subsidized multifamily project, the landlord must serve the tenant with a termination notice that complies with federal law, HUD Handbook 4350.3, HUD’s model lease, and, where applicable, state law requirements concerning content, notice period and service.965 Additionally, where the owner alleges “other good cause,” this notice must be preceded by a written warning that notifies the tenant the conduct will constitute a basis for eviction in the future.966 Absent
A notice to terminate a HUD-subsidized multifamily tenancy must advise the tenant she has 10 days within which to discuss the termination with the owner.995 While this provision does not entitle the tenant to a hearing, such as the public housing grievance procedure allows for, it does provide an opportunity to talk with management and potentially cure a lease violation. The meeting also provides the an opportunity for informal discovery.996
HUD’s Part 247 regulations do not apply to all HUD-assisted Project-Based Section 8 programs. Specifically, Part 247 does not apply to Section 8 new construction,1002 Section 8 substantial rehabilitation,1003 Section 8 through state housing agencies1004 and Section 8 new construction set-aside for Section 515 rural rental housing,1005 which are governed by different regulations.
To terminate a tenancy in these Project-Based Section 8 programs, the landlord must serve the tenant with a notice of lease termination that complies with federal and, where applicable, state and lease notice requirements concerning content, notice period and service.1007 These issues are discussed in detail in this section.1008
A tenant facing eviction from Project-Based Section 8 housing has a right to respond to the owner1039 and 10 days to request a meeting to discuss the termination with the owner.1040 See supra § 11.3.3.2.3 for more on such informal meetings.
Owners, not the PHA administering the program, are responsible for evicting voucher tenants.1050 Eviction procedures are governed by 42 U.S.C. § 1437f(o)(7) and 24 C.F.R.
Tenant protections in LIHTC projects are governed by federal statute.1068 Revenue rulings and procedures issued by the IRS also apply.1069 These rules provide some guidance on the substantive, rather than procedural, requirements for tenant evictions from LIHTC projects. There is no federally required pre-judicial administrative review or grievance process, nor does the LIHTC program prescribe the content of the notice, the notice period, or the manner of service.
The HOME statute prohibits owners from terminating or refusing to renew a lease except for specified grounds.1072 Termination also may occur upon completion of the tenancy period for transitional housing.1073 The owner must serve the tenant with at least 30 days’ written notice, specifying the grounds for termination.
The HOPWA regulations state that in terminating assistance, HOPWA grantees must provide formal procedures that comply with due process.1076 This process must, at a minimum, consist of giving the participant (1) written notice containing a clear statement of the reasons for the termination, (2) an opportunity for review of the decision, in which the participant may confront opposing witnesses, present written objections, and be represented by counsel, before a person other than the individual (or a subordinate of that person) who made or app
Shelter Plus Care recipients may terminate assistance to participants who violate program requirements or conditions of occupancy.1081 The landlord must, however, “exercise judgment and examine all extenuating circumstances” to ensure that assistance is “terminated only in the most severe cases.” Participants must be given (1) written notice of the reasons for the termination, (2) an opportunity to appeal the decision to a person other than the person or a subordinate of the person who made or approved the termination, and (3) prompt writte
State and local law can provide tenants with additional procedural protections, such as a right to cure a lease violation,1086 a longer notice period,1087 or additional requirements.1088 HUD regulations and handbooks are clear that PHAs and subsidized landlords must comply with state, local and federal eviction requirements. Specifically:
Most states prohibit landlords from resorting to any form of self-help and require the use of a judicial process to evict tenants.1098 Federal regulations also prohibit self-help evictions by landlords in almost all federally supported programs.1099 When self-help eviction arises in the context of destruction of the unit, whether or not the tenant is at fault, additional considerations come into play.
At a minimum, the landlord must serve the complaint in a manner required under state law. Advocates can assert that due process requires the landlord to provide the best notice possible, using a method of service that is “reasonably certain to inform those affected.”1100 In Greene v.
A landlord or PHA that institutes an eviction action must prove compliance with the federal procedural regulations for lease terminations, notices, meetings and grievance procedures, if applicable, before the landlord or PHA can be entitled to a judgment of possession.1105
Federal and state law may differ on whether tenants have any right to discovery before the state court trial. Many state summary eviction procedures do not allow tenants to pursue pre-trial discovery or impose time limits that make discovery infeasible.
Because state courts must apply federal law pertaining to subsidized housing evictions, the issue of good cause for eviction will be tried in the state court action.1117 Under state law, the landlord will not be entitled to a judgment for possession unless it can show both that it has validly terminated the tenancy and that the tenant has breached the lease or has other good cause to evict.1118
State law will govern whether and how a tenant against whom a judgment for possession is entered may seek review of the judgment, and also seek or obtain a stay of the judgment’s execution pending review. Note, however, that an eviction suit is not rendered moot simply because the tenant may have vacated or been physically displaced from the premises before the appeal is decided.1130
In some states, a tenant may be required to pay rent into an escrow account to obtain court review of an eviction decision.1131 Courts have questioned the constitutionality of these escrow requirements.
This section provides a brief overview of the right of landlords and tenants to recover attorney fees incurred through an eviction action. For further discussion of attorney’s fees, see infra § 14.11.
The primary means of ensuring compliance with HUD’s eviction requirements is to seek dismissal of eviction actions when a PHA or landlord violates federal law. The landlord must prove compliance with the procedural requirements of the federal regulations as well as good cause for the eviction, and the failure to do so should result in dismissal. A tenant whose eviction is reversed on appeal may be able to obtain damages.1144
A PHA may decide to terminate a tenant’s Housing Choice Voucher for various reasons, which often include alleged wrongdoing on the part of the family. Such terminations can be challenged on both substantive and procedural grounds, as PHAs must comply with HUD’s regulations regarding the valid grounds and required procedures for terminating Voucher participation.1156
HUD’s regulations specify the grounds for terminating Vouchers for either action or inaction by the participant family.1157 A PHA may terminate assistance for other reasons, such as an owner’s failure to maintain the premises or the lack of sufficient funding, but HUD generally does not provide the participant a right to any review process in these cases.1158 Termination for not securing housing within the search period is not addressed in the regulations, but in some instances, there may be