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 Services Renee Williams, National Housing Law Project

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 2

Pathways to Justice Conference  June 10 – 11, 2015 DOES MY CLIENT LIVE IN SUBSIDIZED HOUSING? 3

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 4

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 – (registration required) If everything else fails, ask the landlord! 5

Pathways to Justice Conference  June 10 – 11, 2015 EVICTIONS AND TERMINATIONS 6

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 7

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). 8

Pathways to Justice Conference  June 10 – 11, 2015 COMMON EVICTION SCENARIOS 9

Pathways to Justice Conference  June 10 – 11, 2015 Common Violations 1.Nonpayment of rent 2.Breach of lease i.Late payments ii.Unauthorized occupants iii.Disruptive behavior iv.Damaging the property 3.Unreported Income 4.Failure to pay utilities 5.Criminal Activity/Drug use 6.Fraud/Misrepresentation 10

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?

Pathways to Justice Conference  June 10 – 11, 2015 Breach of Lease: Late Payments Regular late payments? Does the landlord continually accept late rent?

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)

Pathways to Justice Conference  June 10 – 11, 2015 Breach of Lease: Disruptive Behavior Fights Attacking an employee Nuisance Defenses: RAC and Proof

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

Pathways to Justice Conference  June 10 – 11, 2015 Unreported Income Sporadic jobs (i.e. seasonal retail) Informal jobs (i.e. babysitting) Other

Pathways to Justice Conference  June 10 – 11, 2015 Failure to Pay Utilities Utilities disconnected for unit Short-term versus long-term outage

Pathways to Justice Conference  June 10 – 11, 2015 Criminal Activity Drug activity – Rucker “one strike” Physical violence On or off premises

Pathways to Justice Conference  June 10 – 11, 2015 Fraud/Misrepresentation False statements Omission of important information

Pathways to Justice Conference  June 10 – 11, 2015 COMMON EVICTION RESPONSES

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 – Language Relief from Forfeiture (CCP 1179) 21

Pathways to Justice Conference  June 10 – 11, 2015 Mitigating Factors – Seriousness of offense – Extent of participation or culpability of individual family members (24 C.F.R. Section (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 22

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 23

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

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)

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

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: domestic-violence-memo-with-attachment.pdfhttp:// domestic-violence-memo-with-attachment.pdf CCP § – 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

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 § – Damage is result of mental disability (e.g., hoarding) Reasonable accommodation to remedy

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 ; PIH (HA) – Housing provider has inaccurate info

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 , ¶ 8-13 – Inadequate utility allowance

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. 31

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 32

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. 33

Pathways to Justice Conference  June 10 – 11, 2015 Fraud/Misrepresentation Responses – No intent to mislead/commit fraud – Cure via repayment plan

Pathways to Justice Conference  June 10 – 11, 2015 ADMINISTRATIVE HEARINGS

Pathways to Justice Conference  June 10 – 11, 2015 Administrative Processes Public housing – Grievance hearing Multifamily housing – Meeting with owner Voucher program – Informal hearing

Pathways to Justice Conference  June 10 – 11, 2015 Resources HUD Tenants Rights: HUD Programs (4 th ed. 2012) (the Green Book) – Order at CEB Eviction Defense/Landlord Tenant Manual – Free access for new lawyers Rutter Group Landlord Tenant Manual Questions? 37

Pathways to Justice Conference  June 10 – 11, 2015 Questions? Contact: Navneet Grewal (213) Maria Palomares (818) Renee Williams (415)