Transcript Representing the Public & Subsidized Housing Client

Merf Ehman
Columbia Legal Services
It’s Complicated but Great Work!
 Usually you can find a basis to argue
 Good cause even outside Seattle
 The subsidy is incredibly meaningful to the client
Overview
 Programs created by federal legislation
 Different rights flow from different subsidies
 Find out the type of subsidy your client receives

What type of Subsidy?
 Public Housing
 Section 8
 Multifamily programs
 Low Income Housing Tax Credits
Affordable Housing Eligibility 2011
Family size
30 percent income
limit
50 percent income
limit
80 percent income
limit
1
$18,500
$30,800
$45,500
2
$21,150
$35,200
$52,000
3
$23,800
$39,600
$58,500
4
$26,400
$44,000
$65,000
5
$28,550
$47,550
$70,200
6
$30,650
$51,050
$75,400
Finding the subsidy
 Ask client
 Review lease
 Ask housing provider/attorney
 Look online
Search the Web
 Low Income Tax Credit
 http://www.wshfc.org/property/property.asp
 Multifamily housing
 http://portal.hud.gov/hudportal/HUD?src=/progra
m_offices/housing/mfh
 http://www.rentonhousing.org/
 http://www.seattlehousing.org/housing/
 http://www.kcha.org/lookingforhousing/lookingf
orhousing.aspx
Overview
 How the program works
 Key Regulatory Features
CONVENTIONAL PUBLIC HOUSING
OWNED AND MANAGED BY
PUBLIC HOUSING AUTHORITY (PHA)
Seattle Housing Authority
http://www.seattlehousing.org/about/policies/
King County Housing Authority
Renton Housing Authority
Subsidy Mechanism
HUD provides annual
operating subsidies
PHA anticipates amount
of tenant rents then
subtracts amount from
allowable expenses to
determine federal
operating subsidy
Tenant pays 30 percent of
monthly income for rent
and utilities
Sources of Law
Statute 42 USC § 1437
Federal regulations
(24 C.F.R. § 966)
Residential Landlord Tenant Act
Local Laws (Silva, 94 Wn. App. 731 (1999)
HUD handbooks, circulars, notices
(Public Housing Occupancy Guidebook)
• PHA admission and continued
occupancy policies (ACOP)
• Tenant Lease
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Eviction Process
Notice
Grievance
Hearing
Show
Cause
Hearing
Trial
Reasons for Termination – 24 CFR
966.4(l)
Serious or
Repeated lease
violations
• Includes nonpayment of rent
• Allegations must be prohibited by lease
• 24 CFR 966.4(f)
Failure to fulfill
household
obligations
Criminal Activity
(PHA must prove
all elements)
• Must be Illegal activity
• That threatens health, safety, peaceful enjoyment
• Criminal Defenses apply
• Illegal search
• Look out for hearsay/incompetent evidence
• Drug related criminal activity
• On or off premises
• Alcohol abuse that impacts health and safety
• False statements that made client eligible
• Other
Other good cause
Notice
 Must state opportunity for hearing
 No preemption of state notice requirements
Housing Authority v. Terry, 114 Wn.2d 558 (1990)
 Factual statement of basis for eviction
Housing Authority v. Saylors, 19 Wn. App. 871 (1978)
 14 day nonpayment notice ?
 24 CFR 966.4(l)(3)(i)(A) “14 days in the case of failure to
pay rent”
Grievance Hearing
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Due Process Requirements
Defenses
• 4th and 5th amendments
• Same as at SCH
PHA can’t use UDA show cause hearing if no
grievance opportunity
• (PHA Circular 97-05 HUD due process
determination for WA)
De novo hearing in UDA
Negotiations
 Look behind the notice
 Review hearing decision
 Practical/Creative Alternatives
 Transfer
 Voucher
 Accommodation
 Mitigation
 Services
 NO waiver of rights under RCW 59.18.230
 Exceptions under RCW 59.18.360
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Cannot appear in standard form lease
No substantial inequality in the bargaining position of the two parties
Not in violation of public policy
Written approval of tenant’s attorney that exemption complies with above
 NO waiver of Seattle Just Cause
 No exceptions
 Deemed void and of no lawful force or effect
Show Cause Hearing
 Request discovery
 As soon as possible
 Defenses
 Mitigating circumstances
 DV
 4th and 5th amendments
 State law innocent tenant defense
 Hearing
 Must prove factual allegations
 Show cause hearing should not be used to summarily resolve issues
related to serious or repeated lease volitions, Pleasant, 126 Wn. App.
382 (2005)
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
Helpful in negotiations
Request trial right away
 For nonpayment of rent client can reinstate under RCW 59.18.410
Tenant based subsidy
Section 8 Voucher
PUBLIC HOUSING AUTHORITY
Voucher
HAP Contract
Dwelling Lease
TENANT
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LANDLORD
Sources of law
Federal regulations
(24 C.F.R. § 982)
• Housing Choice Voucher
Guidebook, 7420.10G
• PHA Section 8 Admin Plan
• Lease
•
Rents
 90% to 110% of the Fair Market Rents (FMR)
 May be increased as a reasonable accommodation
 Tenant Share of Rent is 30% of adjusted income
Eviction and Termination of
Subsidy
 Separate processes
 Inform client of possible voucher termination related
to UD
Termination by Owner
During initial lease term:
- Serious or repeated violation of lease,
or federal, state or local law
- Drug-related activity
- Criminal activity that threatens other
residents
After initial lease term:
- Without cause, except as required by
lease or local law (Seattle Just Cause
Eviction Ordinance SMC 22.206.160C)
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Termination of Subsidy
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Violation of program obligations
Drug-related or violent criminal activity
Fraud or bribery
Violation of payment agreements
Threatening PHA personnel
Eviction
Move out w/out notice to PHA
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Negotiations with Landlord
 Goal is to Preserve Voucher
 Mutual lease termination
 Avoid court finding of serious or repeated lease violation
 Avoid termination in initial 12 month period
 Avoid eviction
 Avoid debt to LL
 Avoid factual finding of violation
 Proof settlement terms met
Negotiations with PHA
 Inform them of eviction notice
 Options for preserving voucher
 PHA’s concerns
 Explain LL’s culpability (if any)
 Request reasonable accommodation (if applicable)
 DV
 Other mitigating circumstances
 Poor conditions – request inspections
Section 8 administrative
termination hearing
 Right to hearing 24
 Must timely request
 Due process
C.F.R. § 982.555
 Mitigating circumstances C.F.R § 982.552(c)(2)(i)
 Disability24 C.F.R § 982.552(c)(2)(iv)
 Retaliation
 Warranty of habitability
 Compliance
 Other
 Refer for rep
Eviction Defenses at Show Cause
hearing
 Good Cause in first year of lease
 Side agreements
 Illegal
 Late fees
 Should be based on tenant’s rent portion
 SHA stops paying due to poor conditions
 Not grounds for eviction
 Tenant must keep paying
Applicable Law
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Federal regulations
(24 C.F.R. § 247)
HUD Handbook 4350.3
Tenant Selection Plan
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Grounds for Termination
or Nonrenewal
• Material noncompliance with rental agreement
• Material violation of RLTA tenant duties
• Failure to supply information
• Nonpayment of rent or other charges
• Other good cause
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Termination Notice
• State law notice periods, except “other good cause”
requires at least 30 days
• State reasons with enough specificity so tenant can
prepare defense
• Advise tenant of other rights
(24 C.F.R. § 247.4)
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Hearing Rights
• Notice must advise tenant that meeting with
owner to discuss eviction can be requested in
10 days.
• Failure to give opportunity to confer or to
confer in good faith may be defense to eviction
• Gorsuch Homes v. Wooten, 597 N.E.2d 554
(1992)
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Washington State Housing Finance Commission
Low-Income Housing
Tax Credits
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Country’s most extensive affordable housing
program
The program was added to Section 42 of the
Internal Revenue Code in 1986 to provide
private owners with an incentive to create and
maintain affordable housing.
Over 600 projects and 33,000 units in
Washington State
Subsidy Mechanism
 Investors buy income tax credits in qualified properties
that have received state allocation, creating cash equity for
owners that reduces project development debt burden.
 In exchange, the owner agrees to rent a specific number of
units to qualified tenants at specified rents, usually belowmarket.
 An owner may choose one of two occupancy restrictions:
 At least 20% of units occupied by households whose income
is at or below 50% of AMI.
 At least 40% of units occupied by households whose income
is at or below 60% of AMI.
Sources of Regulation
 Section 42 of the Internal Revenue Code
 Treasury regulations at 26 C.F.R. §1.42
 State QAP and regulations
 State Regulatory Agreement with the owner
 Lease
Program Requirements
•
“Good cause” required for termination or
nonrenewal of tenancy
•
Termination notice must state grounds
with reasonable factual specificity
Good Cause
Good Cause Definition:
• Serious or repeated violation of material terms of lease;
• Failure to vacate after premises made uninhabitable by
fire, flood or other casualty
• www.wshfc.org
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Questions?
 www.nhlp.org