Navigating Public Housing Subsidies: Guidelines & Resources

1. Representing the Public & Subsidized Housing Client Merf Ehman Columbia Legal Services

2. 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

3. Overview • Programs created by federal legislation • Different rights flow from different subsidies • Find out the type of subsidy your client receives

4. What type of Subsidy? • Public Housing • Section 8 • Multifamily programs • Low Income Housing Tax Credits

5. Affordable Housing Eligibility 2011

6. Finding the subsidy • Ask client • Review lease • Ask housing provider/attorney • Look online

7. Search the Web • Low Income Tax Credit • http://www.wshfc.org/property/property.asp • Multifamily housing • http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh • http://www.rentonhousing.org/ • http://www.seattlehousing.org/housing/ • http://www.kcha.org/lookingforhousing/lookingforhousing.aspx

8. Overview • How the program works • Key Regulatory Features

9. 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

10. Subsidy Mechanism

11. 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

12. Eviction Process

13. Reasons for Termination – 24 CFR 966.4(l)

14. 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”

15. Grievance Hearing • 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

16. 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 • 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 complieswith above • NO waiver of Seattle Just Cause • No exceptions • Deemed void and of no lawful force or effect

17. 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) • Helpful in negotiations • Request trial right away • For nonpayment of rent client can reinstate under RCW 59.18.410

18. Section 8 Tenant based subsidy

19. PUBLIC HOUSING AUTHORITY Voucher HAP Contract Dwelling Lease TENANT LANDLORD Section 8 Voucher

20. Sources of law • Federal regulations (24 C.F.R. § 982) • Housing Choice Voucher Guidebook, 7420.10G • PHA Section 8 Admin Plan • Lease

21. 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

22. Eviction and Termination of Subsidy • Separate processes • Inform client of possible voucher termination related to UD

23. 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)

24. Termination of Subsidy • 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

25. 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

26. 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

27. Section 8 administrative termination hearing • Right to hearing 24 C.F.R. § 982.555 • Must timely request • Due process • 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

28. 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

29. Multi-family housing

30. Applicable Law • Federal regulations • (24 C.F.R. § 247) • HUD Handbook 4350.3 • Tenant Selection Plan

31. 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

32. 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)

33. 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)

34. Low Income Housing Tax Credits Washington State Housing Finance Commission

35. Low-Income Housing Tax Credits • 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

36. 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 below-market. • 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.

37. 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

38. Program Requirements • “Good cause” required for termination or nonrenewal of tenancy • Termination notice must state grounds with reasonable factual specificity

39. 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

40. Questions? • www.nhlp.org