“Public housing was established to provide decent and safe rental housing for eligible low[]income families, the elderly, and persons with disabilities.” HUD’s Public Housing Program. HUD (United States Department of Housing and Urban Development) provides federal funding to local public housing agencies (PHAs) that own and manage the public housing units. Id. A PHA is “any State, county, municipality, or other governmental entity or public body, or agency or instrumentality of these entities, that is authorized to engage or assist in the development or operation of low[]income housing under the 1937 Act.”1 24 CFR 5.100. See also 42 USC 1437a(b)(6)(A).
While the public housing units are operated by local PHAs (called housing commissions in Michigan, MCL 125.654), the housing units are subject to federal law and HUD oversight. HUD’s Public Housing Program.
Only low income persons or families are eligible for public housing. HUD’s Public Housing Program. Eligibility is determined by annual gross income; age, disability, or status as a family; and United States citizenship or immigration status. Id. If some household members have an eligible immigration status and other household members do not have an eligible immigration status (a “mixed” household), the household’s assistance would be prorated based on the ratio between the number of household members that have an eligible immigration status and the total number of household members. See 24 CFR 5.504(b); 24 CFR 5.520. See generally, 24 CFR 5.500–24 CFR 5.528. For example, if only three of five household members have an eligible immigration status, the household would receive 60 percent of the assistance available to a household where 100 percent of the members have an eligible immigration status.
“In general, [a tenant] may stay in public housing as long as [he or she] compl[ies] with the lease.” HUD’s Public Housing Program.
For comprehensive information on Public Housing, see HUD Public Housing Occupancy Guidebook (June 2003) (hereafter referred to as Public Housing Guidebook).2
A.Grounds for Eviction/Termination of Lease3
A PHA may evict a tenant from Public Housing for the following reasons:
•Serious or repeated violations of material lease provisions. 42 USC 1437d(l)(5); 24 CFR 966.4(l)(2)(i). See 24 CFR 966.4(l)(2)(i)(A)-(B) for examples of serious or repeated material violations.
•Having an income over the program limit. 24 CFR 966.4(l)(2)(ii).
•Other good cause, 42 USC 1437d(l)(5); 24 CFR 966.4(l)(2)(iii), including, but not limited to, the following types of criminal activity:4
•Criminal activity by a covered person that threatens the other tenants’ health, safety, or right to peaceful enjoyment. 42 USC 1437d(l)(6); 24 CFR 966.4(l)(5)(ii)(A).
A tenant may be evicted for a covered person’s criminal activity “if the PHA 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 966.4(l)(5)(iii)(A).
•Criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of residents in the immediate vicinity. 24 CFR 966.4(l)(5)(ii)(A).
•Drug-related criminal activity on or off the premises by a covered person. 42 USC 1437d(l)(6); 24 CFR 966.4(l)(5)(i)(B).
24 CFR 966.4(l)(5)(i)(A) requires immediate termination “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.”
•Tenant’s violation of a condition of probation or parole under federal or state law. 42 USC 1437d(l)(9)(B);5 24 CFR 966.4(l)(5)(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. 42 USC 1437d(l)(9)(A);6 24 CFR 966.4(l)(5)(ii)(B).
•Household member’s illegal drug use or alcohol abuse, or a pattern of illegal drug use or alcohol abuse, that interferes with the other tenants’ health, safety, or right to peaceful enjoyment. 42 USC 1437d(l)(8); 42 USC 13662(a)(1)-(2); 24 CFR 966.4(l)(5)(i)(B) (drugs); 24 CFR 966.4(l)(5)(vi)(A) (alcohol).
•Household member’s false or misleading information regarding illegal drug use, alcohol abuse, or rehabilitation of illegal drug users or alcohol abusers. 42 USC 1437d(l)(8); 24 CFR 966.4(l)(5)(vi)(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. See 24 CFR 966.4(l)(5)(vii)(B).
The PHA’s notice to the tenant must:
•Be in writing. 42 USC 1437d(l)(4); 24 CFR 966.4(l)(3)(i). The notice must be in a format accessible to a tenant who has a visual impairment. 24 CFR 966.4(k)(2).
•State the specific grounds on which the termination is based. 24 CFR 966.4(l)(3)(ii).
•Include information about the tenant’s right to reply to the notice of termination. 24 CFR 966.4(l)(3)(ii).
•Inform the tenant of his or her right to look at any documents having to do with the termination. 42 USC 1437d(l)(7); 24 CFR 966.4(l)(3)(ii).
•Contain information about the tenant’s right to request a hearing under the PHA’s grievance process (if the tenant is entitled to a grievance hearing). 24 CFR 966.4(l)(3)(ii). See also 24 CFR 966.51. If the tenant is not entitled to a grievance hearing, the notice of termination must so inform the tenant.7 24 CFR 966.4(l)(3)(v)(A). The notice must also inform the tenant that he or she will have the opportunity for a court hearing during the judicial eviction process. 24 CFR 966.4(l)(3)(v)(B).
Service of an eviction or termination notice may be made in person to the tenant or to an adult member of the household who lives at the residence, or service may be made by sending a properly addressed notice to the tenant by first-class mail. 24 CFR 966.4(k)(1)(i).
•For nonpayment of rent, notice must be given not less than 14 days before the date set for eviction. 42 USC 1437d(l)(4)(B); 24 CFR 966.4(l)(3)(i)(A).
•When the health and safety of others is threatened, when drug-related or violent criminal activity has occurred, or when a household member has been convicted of a felony, notice must be given within a reasonable period of time but not more than 30 days before the date set for eviction. 42 USC 1437d(l)(4)(A); 24 CFR 966.4(l)(3)(i)(B).
•In all other cases of termination, notice must be given not less than 30 days before the date set for eviction (unless state or local law provides for a shorter time period, in which case the shorter period applies). 42 USC 1437d(l)(4)(C); 24 CFR 966.4(l)(3)(i)(C).
C.Administrative Grievance Procedure
“[E]ach public housing agency receiving [public housing] assistance [must] establish and implement an administrative grievance procedure[.]”8 42 USC 1437d(k). See also 24 CFR 966.51(a). A grievance is “any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant’s lease or PHA regulations which adversely affect[s] the individual tenant’s rights, duties, welfare or status.” 24 CFR 966.53(a). Unless otherwise indicated, the grievance procedure applies to all grievances between an individual tenant and the PHA. 24 CFR 966.51(a)(1). The grievance procedure does not apply to disputes between tenants that do not involve the PHA or to class grievances. 24 CFR 966.51(b).
The PHA may establish an expedited grievance procedure for terminations or evictions that involve criminal activity that threatens the health, safety, or right to peaceful enjoyment of other tenants or PHA employees, or that involve drug-related criminal activity on or near the premises. 24 CFR 966.55(g)(1)(i)-(ii). “[T]he PHA may adopt special procedures concerning a hearing under the expedited grievance procedure, including provisions for expedited notice or scheduling, or provisions for expedited decision on the grievance.” 24 CFR 966.55(g)(3).
1.Requirements of the Grievance Process
The grievance process must do all of the following:
•“[A]dvise[ the tenant] of the specific grounds of any proposed adverse [PHA] action[.]” 42 USC 1437d(k)(1).
•“[Provide the tenant with] an opportunity for a hearing before an impartial party upon timely request within any period applicable under [42 USC 1437d(l).]” 42 USC 1437d(k)(2).
•“[Provide the tenant with] an opportunity to examine any documents or records or regulations related to the proposed action[.]” 42 USC 1437d(k)(3).
•“[E]ntitle[ the tenant] to be represented by another person of their choice at any hearing[.]” 42 USC 1437d(k)(4).
•“[E]ntitle[ the tenant] to ask questions of witnesses and have others make statements on their behalf[.]” 42 USC 1437d(k)(5).
•“[E]ntitle[ the tenant] to receive a written decision by the [PHA] on the proposed action.” 42 USC 1437d(k)(6).
a.Informal Discussion
“Any grievance shall be personally presented, either orally or in writing, to the PHA office or to the office of the project in which the [tenant] resides so that the grievance may be discussed informally and settled without a hearing.” 24 CFR 966.54. See also 24 CFR 966.55(d). The informal discussion requirement does not apply to an expedited grievance process. 24 CFR 966.55(g)(2). A tenant’s failure to adhere to the informal discussion requirement may be waived for good cause shown. 24 CFR 966.55(d).
“The grievance procedure should state how long the PHA and tenant have to set up the meeting (usually ten working days).” Public Housing Guidebook, p 209.
After the informal discussion and within a reasonable time (usually five working days), the PHA must prepare a written summary of the discussion. 24 CFR 966.54; Public Housing Guidebook, p 209. The summary must contain the participants’ names, the meeting date(s), the disposition proposed, the reasons for the proposed disposition, and the procedure by which the tenant may obtain a hearing if the tenant is not satisfied with the informal discussion. 24 CFR 966.54. One copy of the summary must be given to the tenant, and one must be kept in the tenant’s file. Id.
A tenant who wishes a hearing must submit a written request “within a reasonable time after receipt of the summary of [the informal] discussion[.]” 24 CFR 966.55(a). The Public Housing Guidebook indicates that “usually five days after receipt of the summary of the informal hearing” is a reasonable time in which to require a tenant to submit a written request for a hearing. Public Housing Guidebook, p 210. The written request must state “(1) [t]he reasons for the grievance; and (2) [t]he action or relief sought.” 24 CFR 966.55(a). In the expedited grievance process, the tenant must submit a written request by the time required by the PHA in its expedited grievance procedure. Id.
“The PHA must provide reasonable accommodation for persons with disabilities to participate in the hearing.” 24 CFR 966.56(h)(1). A person with a visual impairment must be given any notice required during the grievance process in an accessible format. 24 CFR 966.56(h)(2).
The PHA will appoint an impartial person or persons to conduct the grievance hearing.9 24 CFR 966.55(b)(1). The person conducting the hearing may not be the same “person who made or approved the PHA action under review or a subordinate of such person.” Id.
If a tenant has complied with all the requirements, the hearing officer or hearing panel must schedule the hearing “promptly [at] a time and place reasonably convenient to both the [tenant] and the PHA.” 24 CFR 966.55(f). “The PHA’s grievance procedure must specify the reasonable time in which the hearing must be held (usually within ten working days of receiving the request for a formal hearing).” Public Housing Guidebook, p 212. Written notice of the time, place, and procedures governing the formal hearing must be delivered to the tenant. 24 CFR 966.55(f).
The tenant must be given a fair hearing. 24 CFR 966.56(b). A fair hearing requires that a tenant be given:
•“[t]he opportunity to examine before the grievance hearing any PHA documents, including records and regulations, that are directly relevant to the hearing.” 24 CFR 966.56(b)(1). The tenant must be permitted to copy any of those documents at the tenant’s own expense. Id.
Note: If, in a grievance hearing or a court trial involving a lease termination or eviction, the PHA does not make the required documents available to the tenant at the tenant’s request, the PHA may not go forward with the termination or eviction. 24 CFR 966.4(m). In other grievances where the PHA does not make a required document available to a tenant, “the PHA may not rely on such document at the grievance hearing.” 24 CFR 966.56(b)(1).
•“[t]he right to be represented by counsel or other person chosen as the tenant’s representative, and to have such person make statements on the tenant’s behalf[.]” 24 CFR 966.56(b)(2).
•“[t]he right to a private hearing unless the [tenant] requests a public hearing[.]” 24 CFR 966.56(b)(3).
•“[t]he right to present evidence and arguments in support of the tenant’s complaint, to controvert evidence relied on by the PHA . . . , and to confront and cross-examine all witnesses upon whose testimony or information the PHA . . . relies[.]” 24 CFR 966.56(b)(4).
•“[a] decision based solely and exclusively upon the facts presented at the hearing.” 24 CFR 966.56(b)(5).
The hearing officer or hearing panel must conduct the hearing informally and evidence relevant to the issues raised by the grievance may be received without regard to whether the evidence is admissible under the rules of evidence. 24 CFR 966.56(f). The parties must conduct themselves as directed by the hearing officer or hearing panel; failure to comply may result in exclusion from the hearing or an adverse decision. Id.
At the hearing, the tenant must first show that he or she is entitled to the relief being sought, then “the PHA must sustain the burden of justifying the PHA action or failure to act against which the complaint is directed.” 24 CFR 966.56(e).
“The hearing officer or hearing panel may render a decision without proceeding with the hearing if the hearing officer or hearing panel determines that the issue has been previously decided in another proceeding.” 24 CFR 966.56(c).
In advance and at the party’s own expense, the tenant or the PHA may arrange for a transcript of the hearing, and “[a]ny interested party may purchase a copy of such transcript.” 24 CFR 966.56(g).
4.Failure to Request a Hearing
If a tenant fails to request a grievance hearing, the disposition proposed after the informal discussion becomes final. 24 CFR 966.55(c). However, a tenant’s failure to request a grievance hearing does not constitute a waiver of the tenant’s right to later contest the outcome “in an appropriate judicial proceeding.” Id.
5.Failure to Appear at a Hearing
If either party fails to appear at the hearing, the hearing may be postponed for not more than five business days or the hearing officer or hearing panel may determine that the absent party waived the right to a hearing. 24 CFR 966.56(d). Both parties must be notified of the officer’s or panel’s determination. Id. If the officer or panel determines that the tenant waived his or her right to a hearing, that determination “shall not constitute a waiver of any right the [tenant] may have to contest the PHA’s disposition of the grievance in an appropriate judicial proceeding.” Id.
1 United States Housing Act of 1937. 42 USC 1437 et seq.
2 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page. As a rule, the Public Housing Guidebook is referenced only when no other authority applies to the information cited, even though the Guidebook contains provisions corresponding to other authority listed.
3 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.
4 See 24 CFR 966.4(l)(2)(iii)(A)-(E) for more examples of what constitutes other good cause.
5 42 USC 1437d(l)(9) states that such action by a tenant “shall be cause for immediate termination of [the] tenancy[.]”
6 42 USC 1437d(l)(9) states that such action by a tenant “shall be cause for immediate termination of [the] tenancy[.]”
7 In some states, when a lease termination or eviction involves violent or drug-related criminal activity, criminal activity that threatens other residents’ health, safety, or right to peaceful enjoyment, or criminal activity resulting in a household member’s felony conviction, a PHA is not required to provide a tenant with the opportunity to participate in the grievance process if HUD has determined that state law satisfies “the basic elements of due process . . . before eviction from the dwelling unit.” 24 CFR 966.51(a)(2)(i). HUD has issued a due process determination to Michigan. See http://www.gpo.gov/fdsys/pkg/FR-1996-03-26/pdf/96-7060.pdf.
8 See Public Housing Guidebook, pp 208-214, for information regarding the grievance procedure. The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
9 The PHA’s grievance procedure must specify the method(s) by which a hearing officer or panel is appointed. 24 CFR 966.55(b)(2). See 24 CFR 966.55(b)(2)-(3) for the available methods and information about the resident organization’s involvement in the appointment.