3.5Section 8 Housing Choice Voucher (HCV) Program1
The Housing Choice Voucher (HCV) Program assists very low income families, the elderly, and people with disabilities to select and lease or purchase affordable housing in the private market; “[it] is the federal government’s major [housing subsidy] program[.]” Housing Choice Vouchers Fact Sheet.
The HCV Program is a tenant-based assistance program administered by a local public housing agency (PHA) (PHAs are called housing commissions in Michigan, MCL 125.654) and funded by HUD (United States Department of Housing and Urban Development). 24 CFR 982.1(a)(1); Housing Choice Vouchers Fact Sheet. Because the housing subsidy is tenant-based, an HCV participant’s housing choices extend beyond units located in subsidized housing projects; a participant may choose any housing that satisfies the Program standards of health and safety and rent reasonableness. 24 CFR 982.1(a)(2); Housing Choice Vouchers Fact Sheet. The PHA pays a housing subsidy directly to the landlord, and the participant pays the difference between the subsidy amount and the amount of the actual rent charged. 24 CFR 982.1(b)(2); Housing Choice Vouchers Fact Sheet. “[T]he subsidy is based on a local ‘payment standard’ that reflects the cost to lease a unit in the local housing market. If the rent is less than the payment standard, the family generally pays 30 percent of adjusted monthly income for rent. If the rent is more than the payment standard, the family pays a larger share of the rent.” 24 CFR 982.1(a)(4)(ii).
The housing voucher is portable nationwide, and “[t]he [H]ousing [C]hoice [V]oucher [P]rogram is designed to allow families to move without the loss of housing assistance.” Housing Choice Vouchers Fact Sheet. An HCV participant may move as long as the participant notifies the PHA before moving, terminates the lease on the participant’s current residence according to the provisions of the lease, and finds a new residence that meets HCV Program requirements. 24 CFR 982.1(b)(2); Housing Choice Vouchers Fact Sheet.
“Eligibility for a housing voucher is determined by the PHA based on the total annual gross income and family size and is limited to U[nited ]S[tates] citizens and specified categories of non-citizens who have eligible immigration status.” Housing Choice Vouchers Fact Sheet.
B.Grounds for Eviction/Termination of Lease2
A landlord may terminate an HCV tenant’s lease for the following reasons:
•Serious or repeated violations of the lease terms. 42 USC 1437f(o)(7)(C); 24 CFR 982.310(a)(1).
•Violation of applicable federal, state, or local law. 42 USC 1437f(o)(7)(C); 24 CFR 982.310(a)(2).
•Criminal activity by a covered person that threatens the health, safety, or peaceful enjoyment of the other residents. 42 USC 1437f(o)(7)(D); 24 CFR 982.310(c)(2)(i)(A).
“The [landlord] may terminate tenancy and evict by judicial action a family for criminal activity by a covered person . . . if the owner determines 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 the standard of proof used for a criminal conviction.” 24 CFR 982.310(c)(3).
•Violent criminal activity by a covered person on or near the premises. 42 USC 1437f(o)(7)(D); 24 CFR 982.310(c)(2)(i)(C).
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of people living in the immediate vicinity. 42 USC 1437f(o)(7)(D); 24 CFR 982.310(c)(2)(i)(B).
•Drug-related criminal activity on or near the premises by a covered person. 42 USC 1437f(o)(7)(D); 24 CFR 982.310(c)(1).
•Household member’s illegal drug use or pattern of illegal drug use, if it threatens the other residents’ health, safety, or peaceful enjoyment. 24 CFR 982.310(c)(1).
•Tenant’s or household member’s violation of federal or state probation or parole. 24 CFR 982.310(c)(2)(ii)(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 982.310(c)(2)(ii)(A).
•Other good cause. 42 USC 1437f(o)(7)(C); 24 CFR 982.310(a)(3). Examples of other good cause appear at 24 CFR 982.310(d)(1).
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 982.310(h)(1). 24 CFR 982.310(h) contains a list of considerations for the landlord’s decision-making process.
A notice of termination must:
•be in writing. 42 USC 1437f(o)(7)(E); 24 CFR 982.5; 24 CFR 982.310(e)(1)(i). The landlord must also provide the PHA with a copy of the notice. 24 CFR 982.310(e)(2)(ii).
•specify the grounds for eviction. 42 USC 1437f(o)(7)(E); 24 CFR 982.5; 24 CFR 982.310(e)(1)(i).
•state that the landlord may enforce the eviction only through a court action. 24 CFR 982.310(f).
Federal law and regulations do not specify a manner of service for the notice of termination. Therefore, the terms of the lease and applicable state law govern the manner of service.
•Federal regulations require only that notice of termination be given at or before the landlord begins the eviction process. 24 CFR 982.310(e)(1)(i).
•Other time requirements of the notice are governed by the terms of the lease and by state law.
D.Informal Hearing to Review a PHA’s Decision to Terminate a Tenant’s HCV Program Assistance
Because a PHA’s decision to terminate a tenant’s assistance may ultimately result in the landlord’s attempt to evict the tenant, the process in place for reviewing a PHA’s decision to terminate an HCV tenant’s assistance is discussed here.
1.Reasons for Termination of Assistance
An HCV tenant’s assistance may be terminated for many of the same reasons an HCV tenant’s lease may be terminated, and a tenant is entitled to an informal hearing to review the PHA’s decision. See 24 CFR 982.551–24 CFR 982.555 and Guidebook 7420.10G,3 Chapter 16. A tenant’s assistance may be terminated under the following circumstances:4
•Household member’s illegal drug use. 24 CFR 982.553(b)(1)(i)(A).
•Household member’s pattern of illegal drug use that interferes with other residents’ health, safety, or right to peaceful enjoyment. 24 CFR 982.553(b)(1)(i)(B).
•Household member violates the obligations contained in 24 CFR 982.551(l)-(m) (prohibition against engaging in drug-related, violent, or other criminal activity “that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity” and prohibition against abusing alcohol “in a way that threatens [(or may threaten)] the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity”). 24 CFR 982.553(b)(1)(iii); 24 CFR 982.553(b)(2); 24 CFR 982.553(b)(3). See also 24 CFR 982.552(c)(1)(xi).
“The PHA may terminate assistance for criminal activity by a household member as authorized in [24 CFR 982.553] if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity.” 24 CFR 982.553(c).
“The PHA must terminate [HCV P]rogram assistance for a [tenant] evicted from housing assisted under the [HCV] [P]rogram for serious violation of the lease.” 24 CFR 982.552(b)(2).
“The PHA must immediately terminate assistance . . . if the PHA determines that any member of the household has ever been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the premises of federally assisted housing.” 24 CFR 982.553(b)(1)(ii).
2.Notice of Right to Informal Hearing
A tenant is entitled to an informal hearing when a PHA has decided to terminate the tenant’s assistance under the HCV Program because of the tenant’s action or failure to act as specified in 24 CFR 982.552 or 24 CFR 982.553. 24 CFR 982.552(a)(1). At the hearing, the PHA hearing officer must “consider whether the [] PHA decisions relating to the individual circumstances of a [tenant] are in accordance with the law, HUD regulations and PHA policies[.]” 24 CFR 982.555(a)(1). When a tenant is entitled to a hearing because the PHA has decided to terminate assistance due to a tenant’s action or failure to act, “the PHA must give the [tenant] prompt written notice that the [tenant] may request a hearing.”5 24 CFR 982.555(c)(2).
“The notice must:
(i) Contain a brief statement of reasons for the decision [to terminate assistance],
(ii) State that if the [tenant] does not agree with the decision, the [tenant] may request an informal hearing on the decision, and
(iii) State the deadline for the [tenant] to request an informal hearing.” 24 CFR 982.555(c)(2).
“The PHA has latitude in establishing reasonable timeframes for [tenants] to request a . . . hearing.” Guidebook 7420.10G, p 16-1.6
When an informal hearing is required, “the PHA must proceed with the hearing in a reasonably expeditious manner upon the request of the [tenant].”7 24 CFR 982.555(d).
a.Examination of Documents
The tenant is entitled to examine documents possessed by the PHA in anticipation of the hearing.
•“The [tenant] must be given the opportunity to examine before the PHA hearing any PHA documents that are directly relevant to the hearing. The [tenant] must be allowed to copy any such document at the [tenant’s] expense. If the PHA does not make the document available for examination on request of the [tenant], the PHA may not rely on the document at the hearing.” 24 CFR 982.555(e)(2)(i).
The PHA may be entitled to examine a tenant’s relevant documents.
•“The PHA hearing procedures may provide that the PHA must be given the opportunity to examine at PHA offices before the PHA hearing any [tenant] documents that are directly relevant to the hearing. The PHA must be allowed to copy any such document at the PHA’s expense. If the [tenant] does not make the document available for examination on request of the PHA, the [tenant] may not rely on the document at the hearing.” 24 CFR 982.555(e)(2)(ii).
“At [his or her] own expense, the [tenant] may be represented by a lawyer or other representative.” 24 CFR 982.555(e)(3).
“The hearing may be conducted by any person or persons designated by the PHA, other than a person who made or approved the decision under review or a subordinate of this person.” 24 CFR 982.555(e)(4)(i).
“The person who conducts the hearing may regulate the conduct of the hearing in accordance with the PHA hearing procedures.” 24 CFR 982.555(e)(4)(ii).
“The PHA and the [tenant] must be given the opportunity to present evidence, and may question any witnesses. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.” 24 CFR 982.555(e)(5).
The hearing officer must issue a decision in writing that briefly states his or her reasons for the decision. 24 CFR 982.555(e)(6). The hearing officer’s factual determinations about the tenant’s individual circumstances must “be based on a preponderance of the evidence presented at the hearing.” Id. The tenant must be promptly furnished with a copy of the decision. Id.
The hearing officer’s decision does not bind the PHA under certain circumstances.
•“The PHA is not bound by a hearing decision[] . . . [c]oncerning a matter for which the PHA is not required to provide an opportunity for an informal hearing under [24 CFR 982.555], or that otherwise exceeds the authority of the person conducting the hearing under the PHA hearing procedures.” 24 CFR 982.555(f)(1).
•“The PHA is not bound by a hearing decision . . . [c]ontrary to HUD regulations or requirements, or otherwise contrary to federal, State, or local law.” 24 CFR 982.555(f)(2).
“If the PHA determines that it is not bound by a hearing decision, the PHA must promptly notify the [tenant] of the determination, and of the reasons for the determination.” 24 CFR 982.555(f)(3).
E.Project-Based Voucher Program
The Project-Based Voucher (PBV) Program is a Section 8 program related to the HCV Program because funding for the PBV Program derives from a PHA’s funding for its HCV Program. Project[-]Based Vouchers—Frequently Asked Questions.8 A PHA may designate up to 20 percent of its housing choice vouchers for use as project-based vouchers for specific housing units. Id.
However, unlike the HCV Program, where the assistance is awarded to the tenant and moves with the tenant if the tenant moves, PBV Program assistance is attached to the housing units a landlord has contracted with the PHA to set aside for use in the PBV Program. Project[-]Based Vouchers—Frequently Asked Questions.9 PBV voucher recipients are individuals or families on the PHA’s waiting list for housing choice vouchers that the PHA refers to a landlord to fill vacancies in the units specified for PBV assistance. Id. An individual or family who moves from a unit assisted under the PBV Program “does not have any right to continued housing assistance[, but] they may be eligible for a tenant[-]based voucher when one becomes available.” Id.
In general, the same reasons for terminating the lease or evicting an HCV tenant also apply to a PBV tenant. See 24 CFR 983.257 (24 CFR 982.310, the regulation that applies to terminating the tenancies of HCV tenants, also applies to PBV tenants). In addition to 24 CFR 982.310, 24 CFR 5.858–24 CFR 5.861 also apply to terminating the tenancies of PBV tenants. Furthermore, the notice requirements that apply to PBV tenants are the same as those that apply to HCV tenants. 24 CFR 982.310(e)-(f); 24 CFR 983.257.
1 For a history of the Housing Choice Voucher Program, see HUD Housing Choice Voucher Program Guidebook 7420.10G (April 2001), pp 1-1 to 1-4 (hereafter referred to as Guidebook 7420.10G). The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
2 Effective August 3, 2021, the U.S. Centers for Disease Control and Prevention issued an order temporarily halting residential evictions in counties with substantial or high transmission of COVID-19 to prevent the further spread of COVID-19, which was to remain in effect through October 3, 2021. See 86 Fed Reg 43244 (August 6, 2021). However, on August 26, 2021, the United States Supreme Court held that the CDC exceeded its authority in issuing the order and noted that “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” Alabama Ass’n of Realtors v Dep’t of Health and Human Servs, 594 US ___, ___ (2021). For more information, please see the SCAO Memorandum, Eviction Moratorium, and Michigan Legal Help.
3 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
4 A tenant’s assistance may also be terminated for reasons not listed here. See 24 CFR 982.552(b)-(c). The reasons for termination of assistance listed here are limited to those reasons that correspond with the reasons listed for terminating a tenant’s lease.
5 Different notice requirements apply to different reasons for termination. See 24 CFR 982.555(c)(1).
6 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
7 “The [PHA’s] administrative plan must state the PHA procedures for conducting informal hearings for [HCV tenants].” 24 CFR 982.555(e)(1).
8 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
9 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.