March 11, 2020
I recently handled a public housing eviction action against a client, and I thought it would be helpful to remind the public about their rights in subsidized housing when it comes to termination of a subsidized housing tenancy. There are many types of federally subsidized housing. The first step in realizing a tenant’s rights when they receive a notice to terminate their tenancy is to determine the type of subsidy that tenant has. The type of subsidy a tenant receives will determine which set of federal regulations, or law, that will apply. Often, these regulations will give tenants the ability to take part in administrative meetings and hearing prior to an eviction being finalized.
The three main federal housing subsidies that a tenant may have are Public Housing, the Section 8 Housing Choice Voucher Program, and Section 8 Project-Based Housing. Though these housing subsidies are typically the main types of subsidized housing that a tenant will deal with, there are many other types of subsidized housing in which you could be living, including but not limited to, Rural Development housing administered by the Department of Agriculture or Low Income Housing Tax Credit (LIHTC) housing administered by a private landlord with oversight by the Department of Treasury. The type of housing in which you live will affect the rights you have as a tenant when it comes to possible eviction.
There are some simple ways to determine your subsidy and tell the differences between the most common three subsidies so you can figure out which rules apply to your housing subsidy. First, who is the landlord? If your landlord is a private landlord and your rent is paid by a local housing authority, then the chances are that your subsidy is a Section 8 Housing Choice Voucher. If your landlord is a local public housing authority, then you may have public housing or Section 8 Project Based Housing. The next step in attempting to determine your subsidy is to look through your lease. Your lease may state which kind of subsidy you have. You could also ask your landlord. This may not be an option for you, however, if you feel uncomfortable doing so or if the landlord is refusing to speak with you because of an eviction. Another option is to attempt an online search through your preferred online search engine to see if the property in which you are living is advertised as a certain type of subsidized housing. Keep in mind, however, that some properties may receive multiple subsidies from the federal government for a specific development, and search engine results may be out of date. Finally, if in doubt, or if you are facing eviction, it is always helpful to contact your local Legal Aid office as they will often have specialized knowledge of the properties in your area or will have access to special tools to find out which subsidy one receives. It is very important to learn this information because your rights will likely be shaped by which subsidy you receive.
If facing eviction, it is important for you to know which subsidy you have. Even more important, however, is that you take advantage of the administrative procedures offered, if any, that may slow down your eviction or give you the opportunity to explain to the housing authority or your landlord why your tenancy should not be terminated. You should also seek legal counsel because an eviction from subsidized housing could result in you being prohibited from receiving subsidized housing benefits if a court decides to evict you.
For Public Housing benefits, it is important to know that, within ten days of the notice of termination of tenancy, the tenant can utilize the grievance process to attempt to have the eviction overturned. The tenant can do this by requesting an informal meeting in writing to the Housing Authority. Present at the informal meeting will be the management official who made the decision, a hearing officer unconnected and not managed by the party who made the decision, the tenant, and if the tenant has sought legal counsel who has agreed to represent the tenant, the tenant’s legal counsel. At this hearing, the hearing officer will determine whether the eviction is justified pursuant to the lease and applicable federal regulations. Keep in mind, if your eviction is for criminal activity that threatens the health, safety, or right to peaceful enjoyment, violent or drug-related criminal activity on or off the premises, or criminal activity that resulted in a felony conviction of a household member, the tenant is not entitled to an informal hearing.
For Section 8 Project Based subsidized housing, the tenant can elect to utilize the informal hearing process with the landlord. Like Public Housing, this request for an informal hearing must be submitted, in writing, to the landlord at least 10 days from the date of the initial termination notice. Further, you may be represented by legal counsel at this informal hearing. For Section 8 Housing Choice Voucher recipients, upon receiving a notice of termination of tenancy, the tenant may request an informal hearing. That hearing must be requested, in writing, within the time limit contained in the notice of lease termination. Like the other two programs mentioned above, the tenant may be represented by counsel at the hearing. The hearing officer must issue a written decision regarding the informal hearing. For this subsidy, there are no other alternative administrative appeals that the tenant can take, but the tenant may seek judicial review of the informal hearing decision in court. For all three programs mentioned above, the tenant has a right to review relevant public housing authority documents prior to the informal hearing, including the evidence that will be used against the tenant at the hearing. The public housing authority also has the right to review any evidence the tenant plans to use in their defense at the informal hearing.
Subsidized housing evictions can have terrible consequences for tenants. Though this is the case, tenants’ rights can be protected by using the federal regulations governing subsidized housing and the administrative procedures affording tenants a right to explain why their subsidy should not be terminated. These evictions can be confusing for the tenants who are facing them, especially because of the amount of regulations governing subsidized housing, the perceived imbalance of power between the tenant and management, and the looming anxiety which comes with the possibility of losing one’s housing. This is why it is important for the tenant to act fast to request their informal hearing and to seek legal advice or counsel as soon as the tenant is aware of the potential lease termination. If you or a loved one in West Virginia are facing eviction from federally subsidized housing, it is in the tenant’s best interest to contact Legal Aid of West Virginia to seek assistance in wading through the sometimes confusing and extensive federal regulations that govern your housing.