HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.4.7.2 Review under State Law
Many, but not all,1435 states allow for judicial review of Voucher termination decisions under procedures for reviewing state and local agency decisions.
Many, but not all,1435 states allow for judicial review of Voucher termination decisions under procedures for reviewing state and local agency decisions.
Sometimes the PHA will terminate housing assistance payments or the HAP contract without terminating the family’s participation in the program. Even though such a family may not be losing its Voucher, a pre-termination hearing is required if the termination is based on action or inaction of the family.1454 This subsection reviews several common situations.1455
HUD has made clear that a landlord’s initiation of an eviction process alone is not grounds to terminate assistance payments under an outstanding HAP contract.1456 Instead, the PHA must continue the payments until the tenant is physically evicted pursuant to a court order.1457 The PHA is not required to continue payments after the lease and HAP contract expired on their own terms, however.1458 When PHAs cease payments prior to final eviction,
The HAP contract may also be terminated for owner-caused Housing Quality Standards (HQS) violations.1460 The owner must be given at least 30 days to correct owner-caused defects, except that if the breach is life-threatening, the owner must correct it within 24 hours.1461 The rule also provides PHAs with discretion to suspend or reduce the housing assistance payments, rather than terminate the contract.1462 If the contract terminates, the ten
As a way to avoid local eviction restrictions, some owners may attempt to unilaterally terminate their HAP contracts as a means of discontinuing participation in the Voucher program.
HUD authorizes PHAs to terminate assistance either under existing HAP contracts or for continued assistance upon relocation if they lack sufficient funding.1468 Before a PHA takes this drastic step, it should first utilize all other reasonable alternatives, including not issuing new Vouchers, reducing payment standards, and revising utility allowances, rent reasonableness.
In tight markets, some tenants who are issued Vouchers after the PHA terminates the HAP contract on their prior unit for owner breach, or because they have vacated the assisted premises, later face termination for lapse of time if they cannot lease another unit during the search time permitted by the PHA, even if the time is extended.1471 Termination on this ground may be legally questionable because the regulations do not specify lapse of time as grounds for termination of an existing participant.147
This chapter addresses issues regarding admissions to public housing, the Housing Choice Voucher program, and other HUD-assisted and subsidized housing. The chapter begins with a general discussion of admissions issues, including sources of authority and property characteristics that are relevant to eligibility and admission.
For each housing program, there is a body of law governing admission that is based upon statutes, regulations, administrative guidance, and case law.
The admission rules governing public housing, the Voucher program, and HUD-assisted and subsidized housing are specific to each program. A PHA may have separate admission policies for its public housing and Voucher programs. In addition, the PHA’s admission policies may be different for each public housing development. Further, unlike other public benefits, the admission rules for federally subsidized housing are not uniform within a state or county. Therefore, it is important to determine the applicable rules and procedures for each program and housing provider.
PHAs’ contact information is available online.26 Rental markets may be served by more than one PHA, so there may be several PHAs within a metropolitan area. Some PHAs also may have overlapping jurisdictions. HUD’s website provides information on the number of public housing and Voucher units managed by each PHA.27 Information regarding the location of most HUD-assisted and subsidized projects is also available from the HUD website.28
All affordable housing providers are governed by rules concerning tenant eligibility. For admission to public housing and issuance of a Voucher, PHAs are governed by eligibility regulations. Owners of HUD-assisted and subsidized housing also must determine applicant eligibility. Landlords deciding whether to rent to a voucher holder do not determine eligibility. However, they may screen an applicant for suitability, which often includes a review of the applicant’s tenancy, credit, and criminal history.
All of the major HUD programs have income limits. There are also some limitations on the amount of family assets when determining eligibility. Additionally, any income derived from family assets is considered when determining whether a family meets the income eligibility limits, as discussed infra § 2.2.2.4.
The maximum income limits for public housing, Vouchers, and other HUD-assisted and subsidized housing are defined by federal law. These limits depend on whether families are “low-income,” “very low-income,” or “extremely low-income.”
To determine family income for purposes of eligibility, HUD has developed a uniform income definition for the public housing, Section 8, Section 221(d)(3), Section 236 and Section 236 Rental Assistance Payments (RAP), Housing Opportunities for Persons with AIDS, and the Shelter Plus Care programs.54 HUD’s definition of annual income is also used to calculate income for purposes of the Low-Income Housing Tax Credit program.55 For admission purposes, income is the family’s gross annual income, not adj
For public housing and Section 8 programs, a family cannot be assisted if their “net family assets” exceed $100,000 or if they have a present ownership interest in, and with legal authority to sell, real property that is suitable for occupancy by the family.58 The latter condition does not apply to property for which the family is using a Voucher to purchase the property; any person who is a victim of domestic violence; or any family that is offering the property for sale.59 A PHA or owner can deter
Police officers who are over-income may reside in public housing and project-based Section 8 developments.66 For public housing, PHAs must include in the PHA Plan a policy that has the purpose of increasing security. For project-based Section 8 developments, owners may, with HUD approval, allow police or other security personnel to reside in the property without consideration of their income.67 Owners admitting such persons will continue to receive Section 8 assistance for the unit.
Applicants for federally subsidized housing must meet the PHA or owner’s definition of family. For public housing and Section 8 programs, the definition of family includes families with children.68 It also includes single persons.69 Elderly families, near-elderly families, and disabled families are further defined by statute.
The statute broadly defines family. Significantly, there is no federal definition that limits a family to individuals who are related by blood, marriage, or operation of law. In fact, the statute defines an elderly, near-elderly, and disabled family to include two or more elderly, near-elderly, or disabled persons living together.74 Thus, implicit in the statute is a rejection of any requirement that these individuals must be related by blood, marriage or operation of law.
Applicants for federally assisted housing face several different foster care issues. Problems arise both because an applicant’s children are in foster care and because a family includes foster children. These issues are discussed in detail in this subsection.
Applicants Awaiting Return of Children in the Foster Care System. An applicant who is seeking the return of their children may be unfairly denied an admission preference if they are treated as a single adult without children. There also may be issues regarding eligibility for a particular unit size.
For federally assisted housing, there are several eligibility issues involving the custody of minors. First is the issue of what information, if any, must a family submit to demonstrate custody. Other issues arise from joint custody.
The Fair Housing Act provides that the protections against discrimination on the basis of familial status include pregnant women.107 Thus, policies and practices of PHAs and owners should not discriminate against pregnant women. A single pregnant woman should receive the same eligibility and preference treatment as a mother with a child.
In some jurisdictions, PHAs have set a minimum age for admission to avoid entering into unenforceable leases. PHAs often stress that such policies are necessary where the applicable state law provides that a minor’s contracts are voidable, except for contracts for reasonable value of necessities.108 PHAs have argued that any contract for public housing entered into by a minor may not be enforceable, because public housing is not a per se necessity.109