On the Front Lines: Building Skills for Reentry and Diversion March 31,

Housing, Benefits and Certificates of Relief from Disabilities/Good Conduct Presenters: Heidi Cain, The Legal Aid Society Evelyn Malave, The Legal Action Center 2 On the Front Lines: Building Skills for Reentry and Diversion

Housing Consequences of Arrests & Convictions Heidi Cain, The Legal Aid Society of NYC

Illegal Lock Outs/Evictions If someone is locked up, they shouldn’t be locked out! Evictions without a court order are illegal. From the inmate’s perspective:  Difficult to discover a lockout OR  Be restored to possession from jail

Housing Court Evictions Summary proceedings – very fast Types of proceedings ▫ Non-payment of rent ▫ Holdovers  Egs. Breach of lease, illegal use, etc.

Housing Court Proceedings Service of the notice of petition and petition  If landlord knows the tenant is in jail, the landlord is supposed to serve the tenant in jail.  Most incarcerated tenants don’t tell their landlord that they are in jail

Practical Consequences Tenant served at the apartment The inmate does not know s/he has a housing court case

After Service Nonpay: answer in person or by a representative Holdover: appear on return date No answer or no show to a court date = DEFAULT Landlord can request a default judgment (or an inquest in a holdover and get a judgment) A judgment will be entered & warrant of eviction will be issued 6 business days after service of the notice of eviction = Eviction

What does this mean for our incarcerated clients? S/he could be the party to a housing court case, and be evicted before his/her release date without even knowing that a case was commenced.

After default… Can move to vacate the default if tenant can show: ▫ Fraud ▫ Jurisdictional issues (personal/subject matter) ▫ Reasonable excuse for default & Meritorious defense (eg. Habitability, etc) Still have to pay rent if a non-pay

Paying the rent… DSS/HRA grants available if tenant is not in jail and can show the future ability to pay rent SSI/SSD will be restored if incarcerated for less than 12 months Public assistance….

Common Criminal Holdovers Illegal use of premise/ Drug Holdovers ▫ Prostitution ▫ Gambling ▫ Drugs ▫ Result of a search warrant and recovery of illegal items ▫ DA pressures landlord to bring case but cannot prosecute case ▫ Adverse inference can be drawn if 5 th invoked ▫ No stay pending outcome of criminal case

Other Related Holdovers Nuisance theory Non-primary residence or absence from the unit (abandonment) ▫ Case law establishes good defenses to these holdovers

Federally Subsidized Housing Public Housing ▫ Administered by NYCHA in New York City Section 8 Vouchers ▫ Administered by NYCHA, HPD, and DHCR in New York Project-Based Section 8 All are subject to Federal admissions and termination policies for people with criminal convictions

Federal Requirements – Admissions MUST Deny ▫ People evicted because of drug activity in assisted housing ▫ Currently engaging in illegal use of drug/alcohol abuse ▫ Lifetime state sex offender registrants MAY Deny ▫ Drug related criminal activity ▫ Violent criminal activity ▫ ANY OTHER criminal activity that “threatens the health, safety or right to peaceful enjoyment…”

New York’s take on admissions … NYCHA is much more restrictive than federal law requires– eligibility time bars (see table next slide) HPD and DHCR will reject in more limited circumstances (eg. Drug convictions or sex offender status) “Evidence of Rehabilitation” can overcome ineligibility

NYCHA Public Housing - Periods of Exclusion Criminal ConvictionYears after serving sentence (including probation/parole) Persons subject to a lifetime registration requirement under a State sex-offender registration program Indefinite Class A, B, and C felonies6 years Class D and E felonies5 years Class A misdemeanors4 years for one or two convictions 5 years for 3 or more convictions Class B or unclassified misdemeanors3 years for one or two convictions 4 years for 3 or more convictions Violations or DWI infractions2 years for one or two convictions 3 years for 3 or more convictions *** NYCHA Section 8 will exclude only if anyone in the household has been convicted of a drug related or a violent crime within these time frames

Applicant Appeals Forum to adjudicate finding of ineligibility Impartial Hearing Officer Present “Evidence of Rehabilitation” including ▫ certificates of relief/good conduct, proof of employment, school, letters, volunteer work, etc. Result May Require Exclusion of Prospective Household Member

Federal Rules for Termination of Existing Tenancies Housing Authorities MUST incorporate the following grounds as basis for termination: ▫ Currently using a drug ▫ Pattern of illegal drug use/alcohol use ▫ Fleeing felon ▫ Violating a condition of probation or parole

Federal Rules for Termination of Existing Tenancies, contd. Drug related criminal activity on or near the premises by any tenant, household member, guest or person under the tenant’s control; and Any criminal activity by a tenant, member of the tenant’s household, guest or person under the tenant’s control that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or persons residing in the immediate vicinity of the premises.

How it works in public housing?

Administrative Hearings Adjudicate the termination charges Criminal “Activity” – No Conviction Necessary for Termination Rehabilitation Evidence also considered Outcomes ▫ Wrongdoer Exclusion Possible ▫ Probation ▫ Termination ▫ Charges Dismissed and Subsidy/Housing Continues All Administrative Decisions can be challenged in Article 78 proceedings

The End