3.4Privately Owned HUD-Subsidized Project-Based Multifamily Housing1
A.Project-Based Section 8 Housing
“The Section 8 Program was authorized by Congress in 1974 and developed by HUD [(United States Department of Housing and Urban Development)] to provide rental subsidies for eligible tenant families (including single persons) residing in newly constructed, rehabilitated and existing rental and cooperative apartment projects.” Section 8 Program Background Information.
In project-based assistance programs, the subsidy is attached to the housing. 42 USC 1437f(f)(6); 24 CFR 982.1(b)(1). Under the Project-Based Section 8 Housing Program, the owner of the property is responsible for selecting tenants “subject to compliance by such owner with the applicable income eligibility criteria and certain occupancy requirements, including those pertaining to projects designated for elderly and non-elderly disabled families.” Section 8 Program Background Information. Additionally, HUD regulations require tenants receiving Section 8 assistance to be United States citizens or noncitizens with a certain immigration status. Id.
Project-Based Section 8 Housing includes the New Construction Program, the Substantial Rehabilitation Program, and the Moderate Rehabilitation Program. Notwithstanding the similarity among the types of project-based Section 8 housing programs, the programs are discussed separately due to content and/or authority distinctions, however slight.
1.Grounds for Eviction/Termination of Lease2
The reasons for terminating a lease under a project-based Section 8 program are as follows:
•Material noncompliance with the lease provisions. 42 USC 1437f(d)(1)(B)(i); 24 CFR 247.3(a)(1). See 24 CFR 247.3(c) for examples of material noncompliance.
•Material failure to comply with any state landlord-tenant act or any applicable federal, state, or local law. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 247.3(a)(2).
•Criminal activity by a covered person that threatens the other residents’ health, safety, or right to peaceful enjoyment. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(1); 24 CFR 247.3(a)(3).
A tenant may be evicted for a covered person’s criminal activity “if [the landlord] determine[s] that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal standard of proof of the activity.” 24 CFR 5.861.
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of persons living in the immediate vicinity. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(2); 24 CFR 247.3(a)(3).
•Drug-related criminal activity on or near the premises by a covered person. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.858; 24 CFR 247.3(a)(3).
•Illegal drug use or alcohol abuse by a household member, or a pattern of illegal drug use or alcohol abuse, that interferes with the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.858 (drugs); 24 CFR 5.860 (alcohol); 24 CFR 247.3(a)(3).
•Tenant’s violation of a condition of probation or parole imposed under federal or state law. 42 USC 1437f(d)(1)(B)(v)(II); 24 CFR 5.859(b)(2); 24 CFR 247.3(a)(3).
•Tenant’s flight to avoid prosecution after commission or attempted commission of a felony or to avoid penalties after conviction of a felony or attempted felony. 42 USC 1437f(d)(1)(B)(v)(I); 24 CFR 5.859(b)(1); 24 CFR 247.3(a)(3).
•Other good cause. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 247.3(a)(4). A tenant’s conduct cannot be considered other good cause unless the landlord has given the tenant prior notice that the conduct at issue would thereafter constitute a reason for termination. 24 CFR 247.3(b).
Where no law or regulation requires the landlord to terminate a tenant’s lease under the circumstances, the landlord has discretion over whether to terminate the tenant’s lease. 24 CFR 5.852(a). 24 CFR 5.852(a) contains a list of considerations for the landlord’s decision-making process.
“The landlord shall not evict any tenant except by judicial action pursuant to State or local law and in accordance with the requirements of [24 CFR 247.1 to 24 CFR 247.7].” 24 CFR 247.6(a).
“In any judicial action instituted to evict the tenant, the landlord must rely on grounds which were set forth in the termination notice served on the tenant[.]” 24 CFR 247.6(b). The landlord may, however, rely on grounds about which he or she was unaware at the time the notice was sent. Id.
“A tenant may rely on State or local law governing eviction procedures where such law provides the tenant procedural rights which are in addition to those provided by [24 CFR 247.1 to 24 CFR 247.7], except where such State or local law has been preempted[.]” 24 CFR 247.6(c).
a.Content
A landlord must comply with the notice requirements in both federal law and state law. 24 CFR 247.6(a). In general, federal law requires that the notice of termination:
•be in writing. 24 CFR 247.4(a). The notice must be in an accessible format for tenants with a disability. HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs (May 2003, revised with CHG-2, effective June 2007, and CHG-3, effective June 2009), p 8-14 (hereafter referred to as Handbook 4350.3).
•state the date of termination. 24 CFR 247.4(a).
•state the reasons for termination with sufficient detail to allow the tenant to prepare a defense. Id.
•inform the tenant that if he or she remains in the residence on the date of termination, the landlord is limited to the judicial process to enforce the termination, and that the tenant will have the right to present a defense during the judicial process. Id.
•advise the tenant that he or she has ten days in which to discuss the termination with the landlord. Handbook 4350.3, p 8-14.3
•state that a person with disabilities may ask that reasonable accommodations be made so that he or she can participate in the hearing process. Id.
Notice of termination must be served on the tenant by first-class mail and by leaving a copy with any adult at the tenant’s residence. 24 CFR 247.4(b). If no adult is present, a copy of the notice must be slipped under or through the door or attached to the door. Id.
•Notice of termination for other good cause must be given no less than 30 days before the effective date of termination. 24 CFR 247.4(c).
•Timing of a termination notice based on material noncompliance or material failure to comply with the requirements of state landlord-tenant law is governed by terms of the lease and state law. Id.
B.New Construction and Substantial Rehabilitation
“The New Construction and Substantial Rehabilitation Programs provide rental assistance in connection with the development of newly constructed or substantially rehabilitated privately owned rental housing[.]” Section 8 Program Background Information. The New Construction and Substantial Rehabilitation Programs are examples of Project-Based Section 8 Housing.
1.Grounds for Eviction/Termination of Lease4
A lease under the New Construction and Substantial Rehabilitation Programs may be terminated for the following reasons:
•Material noncompliance with the lease provisions. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 880.607(b)(1)(i);5 24 CFR 881.601.6 See 24 CFR 880.607(b)(3) for examples of material noncompliance.
•Material failure to comply with any state landlord-tenant act or any applicable federal, state, or local law. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 880.607(b)(1)(ii); 24 CFR 881.601.
•Criminal activity by a covered person that threatens the other residents’ health, safety, or right to peaceful enjoyment. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(1); 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
A tenant may be evicted for a covered person’s criminal activity “if [the landlord] determine[s] that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal standard of proof of the activity.” 24 CFR 5.861.
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of persons living in the immediate vicinity. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(2); 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
•Drug-related criminal activity on or near the premises by a covered person. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.858; 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
•Illegal drug use or alcohol abuse by a household member, or a pattern of illegal drug use or alcohol abuse, that interferes with the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.858 (drugs); 24 CFR 5.860 (alcohol); 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
•Tenant’s violation of a condition of probation or parole imposed under federal or state law. 42 USC 1437f(d)(1)(B)(v)(II); 24 CFR 5.859(b)(2); 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
•Tenant’s flight to avoid prosecution after commission or attempted commission of a felony or to avoid penalties after conviction of a felony or attempted felony. 42 USC 1437f(d)(1)(B)(v)(I); 24 CFR 5.859(b)(1); 24 CFR 880.607(b)(1)(iii); 24 CFR 881.601.
•Other good cause. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 880.607(b)(1)(iv); 24 CFR 881.601. A tenant’s conduct cannot be considered other good cause unless the landlord has given the tenant prior notice that the conduct at issue would thereafter constitute a reason for termination. 24 CFR 880.607(b)(2); 24 CFR 881.601.
Where no law or regulation requires the landlord to terminate a tenant’s lease under the circumstances, the landlord has discretion over whether to terminate the tenant’s lease. 24 CFR 5.852(a). 24 CFR 5.852(a) contains a list of considerations for the landlord’s decision-making process.
a.Content
The notice of termination must:
•be in writing. 24 CFR 880.607(c)(1); 24 CFR 881.601. The notice must be in an accessible format for a person with a disability. Handbook 4350.3, p 8-14.
•specify the date for termination. 24 CFR 880.607(c)(1); 24 CFR 881.601.
•contain the grounds for termination. Id.
•advise the tenant that if he or she remains in the unit on the date scheduled for termination, the owner may start the judicial process of eviction, and that the tenant may defend against the eviction in court. Handbook 4350.3, p 8-14.
•advise the tenant that he or she has ten days in which to discuss the termination with the landlord. 24 CFR 880.607(c)(1); 24 CFR 881.601; Handbook 4350.3, p 8-14.
•state that a person with disabilities may ask that reasonable accommodations be made so that he or she can participate in the hearing process. Handbook 4350.3, p 8-14.
“In any judicial action instituted to evict the [tenant], the owner may not rely on any grounds which are different from the reasons set forth in the notice.” 24 CFR 880.607(c)(3); 24 CFR 881.601.
No manner of service is specified in the applicable federal regulations. Therefore, the manner of service must comply with applicable state and local laws. Handbook 4350.3, p 8-15.
•When a notice of termination is issued for other good cause, the notice must state that termination is effective at the end of a lease term according to the lease provisions, but no less than 30 days after the tenant’s receipt of notice. 24 CFR 880.607(c)(2); 24 CFR 881.601.
•Where the termination of the lease is for material noncompliance with the terms of the lease or for material failure to comply with state landlord-tenant law, the time requirements must satisfy the lease provisions and applicable state law. Id.
“The [M]oderate [R]ehabilitation [P]rogram provides project-based rental assistance for low income families. The [P]rogram was repealed in 1991 and no new projects are authorized for development. Assistance is limited to properties previously rehabilitated[.]” Moderate Rehabilitation. See also 24 CFR 882.101(b). The Program was designed to upgrade existing housing units in need of moderate rehabilitation. Moderate Rehabilitation. The Moderate Rehabilitation Program is another project-based Section 8 program.
1.Grounds for Eviction/Termination of Lease7
•Material noncompliance with the lease provisions (serious or repeated violations). 42 USC 1437f(d)(1)(B)(ii); 24 CFR 247.3(a)(1); 24 CFR 882.511(c)(1). See 24 CFR 247.3(c) for examples of material noncompliance.
•Material failure to comply with any state landlord-tenant act or any applicable federal, state, or local law. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 247.3(a)(2); 24 CFR 882.511(c)(2).
•Criminal activity by a covered person that threatens the other residents’ health, safety, or right to peaceful enjoyment. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(1); 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(1).
A tenant may be evicted for a covered person’s criminal activity “if [the landlord] determine[s] that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal standard of proof of the activity.” 24 CFR 5.861.
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of persons living in the immediate vicinity. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.859(a)(2); 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(1).
•Drug-related criminal activity on or near the premises by a covered person. 42 USC 1437f(d)(1)(B)(iii); 24 CFR 5.858; 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(2).
•Illegal drug use or alcohol abuse by a household member, or a pattern of illegal drug use or alcohol abuse, that interferes with the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.858 (drugs); 24 CFR 5.860 (alcohol); 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(2).
•Tenant’s violation of a condition of probation or parole imposed under federal or state law. 42 USC 1437f(d)(1)(B)(v)(II); 24 CFR 5.859(b)(2); 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(1).
•Tenant’s flight to avoid prosecution after commission or attempted commission of a felony or to avoid penalties after conviction of a felony or attempted felony. 42 USC 1437f(d)(1)(B)(v)(I); 24 CFR 5.859(b)(1); 24 CFR 247.3(a)(3); 24 CFR 882.511(a)(1).
•Other good cause. 42 USC 1437f(d)(1)(B)(ii); 24 CFR 247.3(a)(4); 24 CFR 882.511(c)(3). A tenant’s conduct cannot be considered other good cause unless the landlord has given the tenant prior notice that the conduct at issue would thereafter constitute a reason for termination. 24 CFR 247.3(b).
Where no law or regulation requires the landlord to terminate a tenant’s lease under the circumstances, the landlord has discretion over whether to terminate the tenant’s lease. 24 CFR 5.852(a). 24 CFR 5.852(a) contains a list of considerations for the landlord’s decision-making process.
“The landlord shall not evict any tenant except by judicial action pursuant to State or local law and in accordance with the requirements of [24 CFR 247.1 to 24 CFR 247.7].” 24 CFR 247.6(a).
“In any judicial action instituted to evict the tenant, the landlord must rely on grounds which were set forth in the termination notice served on the tenant[.]” 24 CFR 247.6(b). The landlord may, however, rely on grounds about which he or she was unaware at the time the notice was sent. Id.
“A tenant may rely on State or local law governing eviction procedures where such law provides the tenant procedural rights which are in addition to those provided by [24 CFR 247.6], except where such State or local law has been preempted[.]” 24 CFR 247.6(c).
2.Notice of Termination
The notice of termination must:
•be in writing. 24 CFR 247.4(a); 24 CFR 882.511(d)(1).
•state the date the lease is to terminate. 24 CFR 247.4(a); 24 CFR 882.511(d)(1).
•list the reasons for the termination with sufficient detail to allow the tenant to prepare a defense. 24 CFR 247.4(a); 24 CFR 882.511(d)(2)(i).
•inform the tenant that he or she may present a defense at any judicial proceeding instituted for the eviction. 24 CFR 247.4(a); 24 CFR 882.511(d)(2)(ii).
According to 24 CFR 882.511(d)(2)(iii), notice must be served on the tenant either by mailing a properly addressed letter to the tenant at his or her residence by first-class mail, return receipt requested, or by delivering the notice to the tenant at his or her residence.
Committee Tip:
However, 24 CFR 247.4(b) also applies to Moderate Rehabilitation. See 24 CFR 247.1, which states that 24 CFR Part 247, Subpart A, applies to subsidized projects as defined in 24 CFR 247.2. 24 CFR 247.2 defines subsidized project as specifically including project-based Section 8 housing with the exception of specifically named project-based Section 8 housing; Moderate Rehabilitation is not excluded. 24 CFR 247.4(b) requires that notice be given both by first-class mail and in person to the tenant or to an adult who answers the door at the tenant’s residence. In keeping with the standard that a tenant is entitled to the greater of two protections, the committee suggests effecting both manners of service as required by 24 CFR 247.4(b).
•When termination is based on nonpayment of rent, the notice must be served not less than five days before the date of termination. 24 CFR 882.511(d)(1)(i).
•When termination is based on serious or repeated violations of lease terms or on a violation of federal, state, or local law, state or local law governs the time requirements of the notice. 24 CFR 882.511(d)(1)(ii).
•When termination is based on other good cause, notice must be served not less than 30 days before the date set for termination. 24 CFR 247.4(c); 24 CFR 882.511(d)(1)(iii).
•When termination is based on material noncompliance or material failure to comply with the requirements of state landlord-tenant law, the terms of the lease and state law govern the time requirements of notice. 24 CFR 247.4(c).
D.Housing for the Elderly (Section 202) and Housing for People With Disabilities (Section 811)
1.In General
a.Section 202—Elderly
“The Section 202 [P]rogram helps expand the supply of affordable housing with supportive services for the elderly. It provides very low[]income elderly with options that allow them to live independently but in an environment that provides support activities such as cleaning, cooking, transportation, etc.” Section 202 Supportive Housing for the Elderly Program. See also 12 USC 1701q(a). Section 202 housing for the elderly is an example of privately owned HUD-subsidized project-based multifamily housing.
“The term ‘elderly person’ means a household composed of one or more persons at least one of whom is 62 years of age or more at the time of initial occupancy.” 12 USC 1701q(k)(1).
b.Section 811—People with Disabilities
42 USC 8013(a) states the purpose of Section 811:
“The purpose of [Section 811] is to enable persons with disabilities to live with dignity and independence within their communities by expanding the supply of supportive housing that—
(1) is designed to accommodate the special needs of such persons;
(2) makes available supportive services that address the individual health, mental health, and other needs of such persons; and
(3) promotes and facilitates community integration for people with significant and long-term disabilities.”
See also Section 811 Supportive Housing for Persons with Disabilities. Section 811 is another example of privately owned HUD-subsidized project-based multifamily housing.
“The term ‘person with disabilities’ means a household composed of one or more persons who is 18 years of age or older and less than 62 years of age, and who has a disability.” 42 USC 8013(k)(2).
2.Grounds for Eviction/Termination of Lease8
The reasons for terminating a Section 202 or Section 811 lease are as follows:
•Material noncompliance with the lease provisions (serious or repeated violations). 42 USC 8013(i)(2)(B)(i); 24 CFR 247.3(a)(1); 24 CFR 891.430(b). See 24 CFR 247.3(c) for examples of material noncompliance.
•Material failure to comply with any state landlord-tenant act. 24 CFR 247.3(a)(2); 24 CFR 891.430(b).
•Criminal activity by a covered person that threatens the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.859(a)(1); 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
A tenant may be evicted for a covered person’s criminal activity “if [the landlord] determine[s] that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal standard of proof of the activity.” 24 CFR 5.861.
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of persons living in the immediate vicinity. 24 CFR 5.859(a)(2); 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
•Drug-related criminal activity on or near the premises by a covered person. 24 CFR 5.858; 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
•Illegal drug use or alcohol abuse by a household member, or a pattern of illegal drug use or alcohol abuse, that interferes with the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.858 (drugs); 24 CFR 5.860 (alcohol); 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
•Tenant’s violation of a condition of probation or parole imposed under federal or state law. 24 CFR 5.859(b)(2); 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
•Tenant’s flight to avoid prosecution after commission or attempted commission of a felony or to avoid penalties after conviction of a felony or attempted felony. 24 CFR 5.859(b)(1); 24 CFR 247.3(a)(3); 24 CFR 891.430(a)-(b).
•Tenant’s violation of applicable federal, state, or local law. 42 USC 8013(i)(2)(B)(i).
•Other good cause. 42 USC 8013(i)(2)(B)(i); 24 CFR 247.3(a)(4); 24 CFR 891.430(b). A tenant’s conduct cannot be considered other good cause unless the landlord has given the tenant prior notice that the conduct at issue would thereafter constitute a reason for termination. 24 CFR 247.3(b).
Where no law or regulation requires the landlord to terminate a tenant’s lease under the circumstances, the landlord has discretion over whether to terminate the tenant’s lease. 24 CFR 5.852(a). 24 CFR 5.852(a) contains a list of considerations for the landlord’s decision-making process.
a.Content
A landlord must comply with the notice requirements in both federal law and state law. 24 CFR 247.6(a); 24 CFR 891.430(b). In general, federal law requires that the notice of termination:
•be in writing. 42 USC 8013(i)(2)(B)(ii); 24 CFR 247.4(a); 24 CFR 891.430(b). The notice must be in an accessible format for a person with a disability. Handbook 4350.3, p 8-14.
•state the date of termination. 24 CFR 247.4(a); 24 CFR 891.430(b).
•state the reasons for termination with sufficient detail to allow the tenant to prepare a defense. Id.
•inform the tenant that if he or she remains in the residence on the date of termination, the landlord is limited to the judicial process to enforce the termination, and that the tenant will have the right to present a defense during the judicial process. Id.
•advise the tenant that he or she has ten days in which to discuss the termination with the landlord. Handbook 4350.3, p 8-14.
•state that a person with disabilities may ask that reasonable accommodations be made so that he or she can participate in the hearing process. Id.
“In any judicial action instituted to evict the tenant, the landlord must rely on grounds which were set forth in the termination notice served on the tenant[.]” 24 CFR 247.6(b). The landlord may, however, rely on grounds about which he or she was unaware at the time the notice was sent. Id.
“A tenant may rely on State or local law governing eviction procedures where such law provides the tenant procedural rights which are in addition to those provided by [24 CFR 247.6], except where such State or local law has been preempted[.]” 24 CFR 247.6(c); 24 CFR 891.430(b).
The notice of termination should be served personally and by first-class mail. Handbook 4350.3, p 8-15. The landlord should send by first-class mail a properly addressed letter that includes a return address. Id. The landlord should also serve a copy of the notice on any adult who answers the door of the residence or, if no adult answers, the landlord should put a copy of the notice under or through the door or attach it to the door. Id.
•Termination for other good cause requires at least a 30-day notice. 24 CFR 247.4(c); 24 CFR 891.430(b).
•Timing of service for a termination notice based on material noncompliance or material failure to comply with the requirements of state landlord-tenant law is governed by terms of the lease and state law. Id.
E.HUD Insured/Guaranteed Mortgages (Section 221 and Section 236)
1.In General
“[The Section 221 Program] insured and subsidized mortgage loans to facilitate the new construction or substantial rehabilitation of multifamily rental or cooperative housing for low- and moderate-income families. The reduced mortgage interest rate [(below market interest rate or BMIR)] . . . resulted in lower operating costs for these projects and therefore reduced rents.” Handbook 4350.3, p 1-3. See 12 USC 1715l(a). See also Mortgage Insurance for Rental and Cooperative Housing: Section 221(d)(3) and Section 221(d)(4).
“[Section 221] no longer provides subsidies for new mortgage loans, but existing Section 221 . . . BMIR properties continue to operate under the [P]rogram.” Handbook 4350.3, p 1-3. See 24 CFR 221.1. Many Section 221 properties receive project-based Section 8 assistance.
“The Section 236 [P]rogram . . . combined federal mortgage insurance with interest reduction payments to the mortgagee for the production of low-cost rental housing. . . . The interest reduction payment results in lower operating costs and subsequently a reduced rent structure.” Handbook 4350.3, p 1-4. See 12 USC 1715z-1(a).
“[The Section 236 P]rogram no longer provides insurance or subsidies for new mortgage loans, but existing Section 236 properties continue to operate under the [P]rogram.” Handbook 4350.3, p 1-4. See 24 CFR 236.1. Many Section 236 properties receive project-based Section 8 assistance.
2.Grounds for Eviction/Termination of Lease9
A lease under Section 221 or Section 236 may be terminated for the following reasons:
•Material noncompliance with the lease provisions (serious or repeated violations). 24 CFR 247.3(a)(1). See 24 CFR 247.3(c) for examples of material noncompliance.
•Material failure to comply with any state landlord-tenant act. 24 CFR 247.3(a)(2).
•Criminal activity by a covered person that threatens the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.859(a)(1); 24 CFR 247.3(a)(3).
A tenant may be evicted for a covered person’s criminal activity “if [the landlord] determine[s] that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal standard of proof of the activity.” 24 CFR 5.861.
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of persons living in the immediate vicinity. 24 CFR 5.859(a)(2); 24 CFR 247.3(a)(3).
•Drug-related criminal activity on or near the premises by a covered person. 24 CFR 5.858; 24 CFR 247.3(a)(3).
•Illegal drug use or alcohol abuse by a household member, or a pattern of illegal drug use or alcohol abuse, that interferes with the other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 5.858 (drugs); 24 CFR 5.860 (alcohol); 24 CFR 247.3(a)(3).
•Tenant’s violation of a condition of probation or parole imposed under federal or state law. 24 CFR 5.859(b)(2); 24 CFR 247.3(a)(3).
•Tenant’s flight to avoid prosecution after commission or attempted commission of a felony or to avoid penalties after conviction of a felony or attempted felony. 24 CFR 5.859(b)(1); 24 CFR 247.3(a)(3).
•Other good cause. 24 CFR 247.3(a)(4). A tenant’s conduct cannot be considered other good cause unless the landlord has given the tenant prior notice that the conduct at issue would thereafter constitute a reason for termination. 24 CFR 247.3(b).
Where no law or regulation requires the landlord to terminate a tenant’s lease under the circumstances, the landlord has discretion over whether to terminate the tenant’s lease. 24 CFR 5.852(a). 24 CFR 5.852(a) contains a list of considerations for the landlord’s decision-making process.
“The landlord shall not evict any tenant except by judicial action pursuant to State or local law and in accordance with the requirements of [24 CFR 247.1 to 24 CFR 247.7].” 24 CFR 247.6(a).
“In any judicial action instituted to evict the tenant, the landlord must rely on grounds which were set forth in the termination notice served on the tenant[.]” 24 CFR 247.6(b). The landlord may, however, rely on grounds about which he or she was unaware at the time the notice was sent. Id.
“A tenant may rely on State or local law governing eviction procedures where such law provides the tenant procedural rights which are in addition to those provided by [24 CFR 247.6], except where such State or local law has been preempted[.]” 24 CFR 247.6(c).
a.Content
A landlord must comply with the notice requirements in both federal law and state law. 24 CFR 247.6(a). Federal law requires that the notice of termination:
•be in writing. 24 CFR 247.4(a). The notice must be in an accessible format for a person with a disability. Handbook 4350.3, p 8-14.
•state the date of termination. 24 CFR 247.4(a).
•state the reasons for termination with sufficient detail to allow the tenant to prepare a defense. Id.
•inform the tenant that if he or she remains in the residence on the date of termination, the landlord is limited to the judicial process to enforce the termination, and that the tenant will have the right to present a defense during the judicial process. Id.
•advise the tenant that he or she has ten days in which to discuss the termination with the landlord. Handbook 4350.3, p 8-14.
•state that a person with disabilities may ask that reasonable accommodations be made so that he or she can participate in the hearing process. Id.
The notice of termination should be served personally and by first-class mail. Handbook 4350.3, p 8-15. The landlord should send by first-class mail a properly addressed letter that includes a return address. Id. The landlord should also “[d]eliver[] a copy of the notice to any adult person answering the door at the unit. If no adult answers the door, the person serving the notice may place it under or through the door, or affix it to the door.” Id.
•Termination for other good cause requires at least a 30-day notice. 24 CFR 247.4(c).
•Timing of service for a termination notice based on material noncompliance or material failure to comply with the requirements of state landlord-tenant law is governed by terms of the lease and state law. Id.