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Pathways to Justice Conference June 10 – 11, 2015
Speakers:
Common Issues in Subsidized Housing
Navneet K. Grewal, Western Center on Law and Poverty Maria Palomares, Neighborhood Legal ServicesRenee Williams, National Housing Law Project
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Pathways to Justice Conference June 10 – 11, 2015
What We Will Cover
• Brief introduction to federally subsidized housing
• Evictions versus terminations• The “good cause” requirement• Common eviction scenarios and responses• Administrative hearings• Q&A
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Pathways to Justice Conference June 10 – 11, 2015
DOES MY CLIENT LIVE IN SUBSIDIZED HOUSING?
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Pathways to Justice Conference June 10 – 11, 2015
Types of Subsidized Housing
• Public Housing• HUD-Subsidized Multifamily• Project-Based Section 8• Low Income Housing Tax Credit• Housing Choice Voucher (Section 8 Voucher)• Project-based Voucher• Other
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Pathways to Justice Conference June 10 – 11, 2015
What Type of Housing is My Client In?• Extremely low rent?• Who is the Landlord?• Lease• Regulatory/Use agreements• Is a PHA involved?• National Housing Preservation Database
– www.preservationdatabase.org (registration required)
• If everything else fails, ask the landlord!
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Pathways to Justice Conference June 10 – 11, 2015
EVICTIONS AND TERMINATIONS
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Pathways to Justice Conference June 10 – 11, 2015
Eviction v. Termination
• Evictions: – Public Housing
providers, Multifamily housing providers, private landlords leasing to Section 8 voucher holders
– I.E. HACLA v. Mr. X OR John Stewart Co. v. Mr. X
• Termination: – A PHA can terminate a
participant from the voucher program regardless of whether or not s/he has been evicted from her unit.
– I.E. Receive a notice of proposed termination
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Pathways to Justice Conference June 10 – 11, 2015
Subsidized Housing: Good Cause Requirement
• Good cause required:– Public Housing– HUD Multifamily– LIHTC – Shelter Plus Care – HOPWA– Supportive Housing
• For Vouchers: – Good cause required during lease term (but at all times in an
eviction controlled jurisdiction).
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Pathways to Justice Conference June 10 – 11, 2015
COMMON EVICTION SCENARIOS
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Pathways to Justice Conference June 10 – 11, 2015
Common Violations1. Nonpayment of rent2. Breach of lease
i. Late paymentsii. Unauthorized occupantsiii. Disruptive behavioriv. Damaging the property
3. Unreported Income4. Failure to pay utilities5. Criminal Activity/Drug use 6. Fraud/Misrepresentation
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Pathways to Justice Conference June 10 – 11, 2015
Nonpayment of Rent
• Most programs – participants pay 30% of adjusted income toward rent
• Variations in voucher, tax credit programs• Is the rent calculated correctly? • Are there additional charges (e.g., late fees or
illegal pet fee if RAC) being combined with rent?• If rent control, was the RSO increase approved by
the PHA?
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Late Payments
• Regular late payments?• Does the landlord continually accept late rent?
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Unauthorized Occupants
• Overstaying amount of time someone can stay as guest
• Not adding someone to household • RSO exceptions (be careful however that the
defense is not inconsistent with what is reported to PHA)
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Disruptive Behavior
• Fights• Attacking an employee • Nuisance • Defenses: RAC and Proof
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Damaging the Property
• Major versus minor damage• Has landlord refused to maintain and upkeep
unit?• Result of domestic violence?• Proof? – Discovery: request proof of up keep, is the unit in
REAP, or failed HQS inspections
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Pathways to Justice Conference June 10 – 11, 2015
Unreported Income
• Sporadic jobs (i.e. seasonal retail)• Informal jobs (i.e. babysitting)• Other
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Pathways to Justice Conference June 10 – 11, 2015
Failure to Pay Utilities
• Utilities disconnected for unit• Short-term versus long-term outage
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Pathways to Justice Conference June 10 – 11, 2015
Criminal Activity
• Drug activity – Rucker “one strike” • Physical violence• On or off premises
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Pathways to Justice Conference June 10 – 11, 2015
Fraud/Misrepresentation
• False statements• Omission of important information
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Pathways to Justice Conference June 10 – 11, 2015
COMMON EVICTION RESPONSES
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Pathways to Justice Conference June 10 – 11, 2015
Common Eviction Responses
• Violation cured within required time period• Waiver and laches• Warranty of Habitability• Retaliation• Discrimination – Reasonable accommodation– Violence Against Women Act (VAWA)/CCP 1161.3– Language
• Relief from Forfeiture (CCP 1179)
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Pathways to Justice Conference June 10 – 11, 2015
Mitigating Factors
• Mitigating Factors– Seriousness of offense– Extent of participation or culpability of individual family
members (24 C.F.R. Section 982.552(c)(2))– Mitigating circumstances related to disability*– Mitigating circumstances related to language barrier (LEP)– Effects of termination of assistance on other family
members who were not involved• Some courts require the PHA/landlord to consider
mitigating factors before commencing eviction
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Pathways to Justice Conference June 10 – 11, 2015
Nonpayment of rent
• Nonpayment of rent is often a serious lease violation; can also result in termination of subsidy
• Defenses– Cal. limitation: cannot demand rent more than one year past
due. CCP 1161(2).– Improper calculation of rent; failure to recertify correctly.– Inclusion of other charges with rent (i.e. late fee)– Tender– Refusal– Warranty of habitability– Fair Debt Collection Practices Act; Bankruptcy
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease : Late Payments
• Multiple instances of late rent payment could potentially constitute good cause for eviction.
• Responses– Tender– Refusal to accept rent– Waiver (previously accepted late payments) – No harm to the housing provider
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Unauthorized Occupants• While tenants can have short-term guests, issues arise when
the guest begins living in the unit without reporting the change in household composition.
• Responses – Person merely a guest• Show person has other residence, receives mail
elsewhere, etc.– Not a serious lease violation– Cure – Waiver (accepted rent knowing of additional occupant)
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Disruptive Behavior • Other residents are entitled to live undisturbed in their units.
However, so-called “disruptive behavior” can arise from circumstances beyond control of the tenant, such as domestic violence, or mental disability.
• Responses– Isolated incident/ not serious violation– Domestic violence
• VAWA 2013– 42 U.S.C. § 14043e-11(b)
» Tenant who is a victim of DV cannot be evicted/terminated because he/she is a victim
» Victim cannot be evicted/terminated for “criminal activity” relating to DV
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Disruptive Behavior – Domestic violence (cont.)• Fair Housing Act
– Evicting/terminating female survivors because of DV could constitute sex discrimination
– HUD Memo: http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdf
• CCP § 1161.3– LL cannot terminate tenancy because of DV
» Exception: Perpetrator cannot live in the same unit.
– Reasonable accommodation• Show link between disability and behavior (e.g., attack on
employee, smoking in unit)• Direct threat exception
– Accommodation that will mitigate threat
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Pathways to Justice Conference June 10 – 11, 2015
Breach of Lease: Damaging the Property
• Responses– Damage is minor/part of normal wear & tear– Landlord failed to perform unit upkeep– Cure– Damage is the result of domestic violence/abuse• Fair Housing Act (sex discrimination)/see HUD memo• VAWA 2013• CCP § 1161.3
– Damage is result of mental disability (e.g., hoarding)• Reasonable accommodation to remedy
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Pathways to Justice Conference June 10 – 11, 2015
Unreported Income
• Tenants have an obligation to report changes in household income from new employment.
• Responses– Unintentional/mistake– Income is sporadic/temporary• 24 C.F.R. § 5.609(c)(9)
– Cure via repayment plan• HUD Notices H 2013-06; PIH 2010-19 (HA)
– Housing provider has inaccurate info
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Pathways to Justice Conference June 10 – 11, 2015
Failure to Pay Utilities
• Short-term disconnection of utilities is generally not a serious lease violation.
• Responses– Cure of the violation – One-time occurrence– Minor lease violation (not repeated)• Multifamily programs – HUD Handbook 4350.3, ¶ 8-13
– Inadequate utility allowance
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Pathways to Justice Conference June 10 – 11, 2015
Criminal Activity or Threatening Behavior• PHAs and landlords must use leases that allow for
termination of tenancy for criminal activity that is:– Drug-related;– Other criminal activity that threatens the health,
safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.
• The PHA may also terminate if a family member engages in alcohol abuse.
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Pathways to Justice Conference June 10 – 11, 2015
Persons Covered
Criminal activity must be conducted by tenant, household member, or guest
Distinguish grounds for eviction from grounds for termination (for voucher): actions of guests not basis for termination
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Pathways to Justice Conference June 10 – 11, 2015
Location of Criminal Activity
• Drug-related criminal activity:– Public housing: on or off the premises– HUD Multifamily: on or near– Voucher: on or near
• Violent criminal activity:– Voucher: on or near
• Other criminal activity:– Nexus requirement for all programs: must affect the
safety or quiet enjoyment of residents on the premises.
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Pathways to Justice Conference June 10 – 11, 2015
Fraud/Misrepresentation
• Responses– No intent to mislead/commit fraud– Cure via repayment plan
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Pathways to Justice Conference June 10 – 11, 2015
ADMINISTRATIVE HEARINGS
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Pathways to Justice Conference June 10 – 11, 2015
Administrative Processes• Public housing– Grievance hearing
• Multifamily housing– Meeting with owner
• Voucher program– Informal hearing
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Pathways to Justice Conference June 10 – 11, 2015
Resources
• HUD Tenants Rights: HUD Programs (4th ed. 2012) (the Green Book)– Order at www.nhlp.org
• CEB Eviction Defense/Landlord Tenant Manual– Free access for new lawyers
• Rutter Group Landlord Tenant Manual• Questions?
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Pathways to Justice Conference June 10 – 11, 2015
Questions? Contact:
Navneet [email protected]
(213)235-2625
Maria Palomares [email protected]
(818) 492-5242
Renee [email protected]
(415)546-7000
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