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BHHC ACOP - Chapter 13

Chapter 13

LEASE TERMINATIONS

INTRODUCTION

Either party in a lease agreement may terminate the lease under certain circumstances. A public housing lease is different from a private dwelling lease in that the family’s rental assistance is tied to their tenancy.  When the family moves from their public housing unit, they lose their rental assistance. Therefore, there are additional safeguards to protect the family’s tenancy in public housing.

Likewise, there are safeguards to protect HUD’s interest in the public housing program, to assure that qualified families are provided decent, safe, and sanitary housing which is in good repair. The PHA may terminate the lease because of the family’s failure to comply with HUD regulations, for serious or repeated violations of the terms of the lease, and for other good cause. HUD regulations specify some reasons for which a PHA can terminate a family’s lease, and give PHAs authority to determine other reasons.

When determining PHA policy on terminations, state and local landlord-tenant laws must be considered, since such laws could vary from one location to another. These variances may be either more or less restrictive than federal law or HUD regulation.

This chapter presents the policies that govern both the family’s and PHA’s termination of the lease. It is presented in four parts:

Part I: Termination by Tenant. This part discusses the family’s voluntary termination of the lease and the requirements the PHA places upon families who wish to terminate their lease.

Part II: Termination by PHA - Mandatory. This part describes the policies that govern how, and under what circumstances, a mandatory lease termination by the PHA occurs. This part also includes nonrenewal of the lease for noncompliance with community service requirements.

Part III: Termination by PHA – Other Authorized Reasons. This part describes the PHA’s options for lease termination that are not mandated by HUD regulation but for which HUD authorizes PHAs to terminate. For some of these options HUD requires the PHA to establish policies and lease provisions for termination, but termination is not mandatory. For other options the PHA has full discretion whether to consider the options as just cause to terminate as long as the PHA policies are reasonable, nondiscriminatory, and do not violate state or local landlord-tenant law. This part also discusses the alternatives that the PHA may consider in lieu of termination, and the criteria the PHA will use when deciding what actions to take.

Part IV: Notification Requirements. This part presents the federal requirements for disclosure of criminal records to the family prior to termination, the HUD requirements and PHA policies regarding the timing and content of written notices for lease termination and eviction, and notification of the post office when eviction is due to criminal activity. This part also discusses record keeping related to lease termination.


PART I: TERMINATION BY TENANT

13-I.A. TENANT CHOOSES TO TERMINATE THE LEASE [24 CFR 966.4(k)(1)(ii) and 24 CFR 966.4(l)(1)]

The family may terminate the lease at any time, for any reason, by following the notification procedures as outlined in the lease. Such notice must be in writing and delivered to the project office or the PHA central office or sent by pre-paid first-class mail, properly addressed.

 

BHHC Policy

If a family desires to move and terminate their tenancy with BHHC, they must give at least 30 calendar days advance written notice to BHHC of their intent to vacate. When a family must give less than 30 days notice due to circumstances beyond their control BHHC, at its discretion, may waive the 30 day requirement.

The notice of lease termination must be signed by the head of household, spouse, or cohead.


PART II: TERMINATION BY PHA – MANDATORY

13-II.A. OVERVIEW

HUD requires the PHA to terminate the lease in certain circumstances. In other circumstances HUD requires the PHA to establish provisions for lease termination, but it is still a PHA option to determine, on a case-by-case basis, whether termination is warranted.  For those tenant actions or failures to act where HUD requires termination, the PHA has no such option. In those cases, the family’s lease must be terminated. This part describes situations in which HUD requires the PHA to terminate the lease.

13-II.B. FAILURE TO PROVIDE CONSENT [24 CFR 960.259(a) and (b)]

The PHA must terminate the lease if any family member fails to sign and submit any consent form s/he is required to sign for any reexamination.  See Chapter 7 for a complete discussion of consent requirements.

13-II.C. FAILURE TO DOCUMENT CITIZENSHIP [24 CFR 5.514(c) and (d) and 24 CFR 960.259(a)]

The PHA must terminate the lease if (1) a family fails to submit required documentation within the required timeframe concerning any family member’s citizenship or immigration status; (2) a family submits evidence of citizenship and eligible immigration status in a timely manner, but United States Citizenship and Immigration Services (USCIS) primary and secondary verification does not verify eligible immigration status of the family, resulting in no eligible family members; or (3) a family member, as determined by the PHA, has knowingly permitted another individual who is not eligible for assistance to reside (on a permanent basis) in the unit. For (3), such termination must be for a period of at least 24 months. This does not apply to ineligible noncitizens already in the household where the family’s assistance has been prorated.

See Chapter 7 for a complete discussion of documentation requirements.

13-II.D. FAILURE TO PROVIDE SOCIAL SECURITY DOCUMENTATION [24 CFR 5.218(c) and 24 CFR 960.259(a)(3), Notice PIH 2012-10]

The PHA must terminate assistance if a participant family fails to disclose the complete and accurate social security number of each household member and the documentation necessary to verify each Social Security Number.

However, if the family is otherwise eligible for continued program assistance, and the PHA determines that the family’s failure to meet the SSN disclosure and documentation requirements was due to circumstances that could not have been foreseen and were outside of the family’s control, the PHA may defer the family’s termination and provide the family an opportunity to comply with the requirements within a period not to exceed 90 calendar days from the date the PHA determined the family to be noncompliant.

 

BHHC Policy

BHHC will defer the family’s termination and provide the family with the opportunity to comply with the requirement for a period of 90 calendar days for circumstances beyond the participant’s control such as delayed processing of the SSN application by the SSA, natural disaster, fire, death in the family or other emergency family situations; if there is a reasonable likelihood that the participant will be able to disclose an SSN by the deadline.

 

See Chapter 7 for a complete discussion of documentation and certification requirements.

 

 

 

13-II.E. FAILURE TO ACCEPT THE PHA’S OFFER OF A LEASE REVISION [24 CFR 966.4(l)(2)(ii)(E)]

The PHA must terminate the lease if the family fails to accept the PHA’s offer of a lease revision to an existing lease, provided the PHA has done the following:

·          The revision is on a form adopted by the PHA in accordance with 24 CFR 966.3 pertaining to requirements for notice to tenants and resident organizations and their opportunity to present comments.

·          The PHA has made written notice of the offer of the revision at least 60 calendar days before the lease revision is scheduled to take effect.

·          The PHA has specified in the offer a reasonable time limit within that period for acceptance by the family.

 

See Chapter 8 for information pertaining to PHA policies for offering lease revisions.

13-II.F. METHAMPHETAMINE CONVICTION [24 CFR 966.4(l)(5)(i)(A)]

The PHA must immediately terminate the lease if the PHA determines that any household member has ever been convicted of the manufacture or production of methamphetamine on the premises of federally-assisted housing.

See Part 13-III.B. below for the HUD definition of premises. 

13-II.G. NONCOMPLIANCE WITH COMMUNITY SERVICE REQUIREMENTS [24 CFR 966.4(l)(2)(ii)(D), 24 CFR 960.603(b) and 24 CFR 960.607(b)(2)(ii) and (c)]

 

The PHA is prohibited from renewing the lease at the end of the 12 month lease term when the family fails to comply with the community service requirements as described in Chapter 11.

13-II.H. DEATH OF A SOLE FAMILY MEMBER [Notice PIH 2012-10]

The PHA must immediately terminate program assistance for deceased singe member households.

BHHC Policy

BHHC will immediately terminate program assistance for deceased sole member households.
PART III: TERMINATION BY PHA – OTHER AUTHORIZED REASONS

13-III.A. OVERVIEW

Besides requiring PHAs to terminate the lease under the circumstances described in Part II, HUD requires the PHA to establish provisions in the lease for termination pertaining to certain criminal activity, alcohol abuse, and certain household obligations stated in the regulations. While these provisions for lease termination must be in the lease agreement, HUD does not require PHAs to terminate for such violations in all cases. The PHA has the discretion to consider circumstances surrounding the violation or, in applicable situations, whether the offending household member has entered or completed rehabilitation, and the PHA may, as an alternative to termination, require the exclusion of the culpable household member. The PHA must make policy decisions concerning these options.

 

In addition, HUD authorizes PHAs to terminate the lease for other grounds, but for only those grounds that constitute serious or repeated violations of material terms of the lease or that are for other good cause. The PHA must develop policies pertaining to what constitutes serious or repeated lease violations, and other good cause, based upon the content of the PHA lease. In the development of the terms of the lease, the PHA must consider the limitations imposed by state and local landlord-tenant law, as well as HUD regulations and federal statutes. Because of variations in state and local landlord-tenant law, and because HUD affords PHAs wide discretion in some areas, a broad range of policies could be acceptable.

 

The PHA, with some restrictions, also has the option to terminate the tenancies of families who are over income.

 

The PHA may consider alternatives to termination and must establish policies describing the criteria the PHA will use when deciding what action to take, the types of evidence that will be acceptable, and the steps the PHA must take when terminating a family’s lease.


13-III.B. MANDATORY LEASE PROVISIONS [24 CFR 966.4(l)(5)]

This section addresses provisions for lease termination that must be included in the lease agreement according to HUD regulations. Although the provisions are required, HUD does not require PHAs to terminate for such violations in all cases, therefore PHA policies are needed.

 

Definitions [24 CFR 5.100]

 

The following definitions will be used for this and other parts of this chapter:

 

Covered person means a tenant, any member of the tenant’s household, a guest, or another person under the tenant’s control.

 

Dating violence is defined in section 16-VII.B.

 

Domestic violence is defined in section 16-VII.B.

 

Drug means a controlled substance as defined in section 102 of the Controlled Substances Act [21 U.S.C. 802].

 

Drug-related criminal activity means the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with the intent to manufacture, sell, distribute, or use the drug.

 

Guest means a person temporarily staying in the unit with the consent of a tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant.

 

Household means the family and PHA-approved live-in aide. The term household also includes foster children and/or foster adults that have been approved to reside in the unit [HUD-50058, Instruction Booklet, p. 65].

 

Immediate family member is defined in section 16-VII.B.

Other person under the tenant’s control means that the person, although not staying as a guest in the unit is, or was at the time of the activity in question, on the premises because of an invitation from the tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant. Absent evidence to the contrary, a person temporarily and infrequently on the premises solely for legitimate commercial purposes is not under the tenant’s control.

 

Premises means the building or complex or development in which the public or assisted housing dwelling unit is located including common areas and grounds.

 

Stalking is defined in section 16-VII.B.

 

Violent criminal activity means any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.


Drug Crime On or Off the Premises [24 CFR 966.4(l)(5)(i)(B)]

The lease must provide that drug-related criminal activity engaged in on or off the premises by the tenant, member of the tenant’s household or guest, or any such activity engaged in on the premises by any other person under the tenant’s control is grounds for termination.

 

BHHC Policy

BHHC will terminate the lease for drug-related criminal activity engaged in on or off the premises by any tenant, member of the tenant’s household or guest, and any such activity engaged in on the premises by any other person under the tenant’s control.

 

BHHC will consider all credible evidence, including but not limited to, any record of arrests or convictions of covered persons related to the drug-related criminal activity.

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Section 13-III.E. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.

 

Illegal Use of a Drug [24 CFR 966.4(l)(5)(i)(B)]

 

The lease must provide that a PHA may evict a family when the PHA determines that a household member is illegally using a drug or that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.

 

BHHC Policy

BHHC will terminate the lease when BHHC determines that a household member is illegally using a drug or BHHC determines that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.

 

A pattern of illegal drug use means more than one incident of any use of illegal drugs during the previous six months.

 

BHHC will consider all credible evidence, including but not limited to, any record of arrests or convictions of household members related to the use of illegal drugs.

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Section 13-III.E. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.


Threat to Other Residents [24 CFR 966.4(l)(5)(ii)(A)]

The lease must provide that any criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including PHA management staff residing on the premises) or by persons residing in the immediate vicinity of the premises is grounds for termination of tenancy.

 

BHHC Policy

BHHC will terminate the lease when a covered person engages in any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including BHHC management staff residing on the premises) or by persons residing in the immediate vicinity of the premises.

 

Immediate vicinity means within a three-block radius of the premises.

 

BHHC will consider all credible evidence, including but not limited to, any record of arrests or convictions of covered persons related to the criminal activity.

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Sections 13-III.E and 13‑III.F. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.

 

Alcohol Abuse [24 CFR 966.4(l)(5)(vi)(A)]

 

PHAs must establish standards that allow termination of tenancy if the PHA determines that a household member has engaged in abuse or pattern of abuse of alcohol that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents.

 

BHHC Policy

BHHC will terminate the lease if BHHC determines that a household member has engaged in abuse or a pattern of abuse of alcohol that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents.

 

A pattern of such alcohol abuse means more than one incident of any such abuse of alcohol during the previous six months.

 

BHHC will consider all credible evidence, including but not limited to, any record of arrests or convictions of household members related to the abuse of alcohol.

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Sections 13-III.E and 13‑III.F. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.


Furnishing False or Misleading Information Concerning Illegal Drug Use or Alcohol Abuse or Rehabilitation [24 CFR 966.4(l)(5)(vi)(B)]

 

PHAs must establish standards that allow termination of tenancy if the PHA determines that a household member has furnished false or misleading information concerning illegal drug use, alcohol abuse, or rehabilitation of illegal drug users or alcohol abusers.

 

BHHC Policy

BHHC will terminate the lease if BHHC determines that a household member has furnished false or misleading information concerning illegal drug use, alcohol abuse, or rehabilitation of illegal drug users or alcohol abusers.

 

BHHC will consider all credible evidence, including but not limited to, any record of arrests or convictions of household members related to the use of illegal drugs or the abuse of alcohol, and any records or other documentation (or lack of records or documentation) supporting claims of rehabilitation of illegal drug users or alcohol abusers.

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Section 13-III.E. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.


Other Serious or Repeated Violations of Material Terms of the Lease – Mandatory Lease Provisions [24 CFR 966.4(l)(2)(i) and 24 CFR 966.4(f)]

 

HUD regulations require certain tenant obligations to be incorporated into the lease. Violations of such regulatory obligations are considered to be serious or repeated violations of the lease and grounds for termination. Incidents of actual or threatened domestic violence, dating violence, or stalking may not be construed as serious or repeated violations of the lease by the victim or threatened victim of such violence or stalking [Pub.L. 109-162].

 

BHHC Policy

BHHC will terminate the lease for the following violations of tenant obligations under the lease:

 

Failure to make payments due under the lease, including nonpayment of rent (see Chapter 8 for details pertaining to lease requirements for payments due);

 

Repeated late payment of rent or other charges; Three (3) late payments within a 12 month period shall constitute a repeated late payment.

 

Failure to comply with the Community Service Requirement as described in BHHC’s Lease further discussion on this requirement can be found in Chapter 11 § I.B.

 

Failure to fulfill the following household obligations:

Not to assign the lease or to sublease the dwelling unit. Subleasing includes receiving payment to cover rent and utility costs by a person living in the unit who is not listed as a family member.

 

Not to provide accommodations for boarders or lodgers

 

To use the dwelling unit solely as a private dwelling for the tenant and the tenant’s household as identified in the lease, and not to use or permit its use for any other purpose

 

To abide by necessary and reasonable regulations promulgated by BHHC for the benefit and well-being of the housing project and the tenants which shall be posted in the project office and incorporated by reference in the lease

 

To comply with all obligations imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety

 

To keep the dwelling unit and such other areas as may be assigned to the tenant for the tenant’s exclusive use in a clean and safe condition

 

To dispose of all ashes, garbage, rubbish, and other waste from the dwelling unit in a sanitary and safe manner


To use only in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appurtenances including elevators

 

To refrain from, and to cause the household and guests to refrain from destroying, defacing, damaging, or removing any part of the dwelling unit or project

 

To pay reasonable charges (other than for normal wear and tear) for the repair of damages to the dwelling unit, or to the project (including damages to project buildings, facilities or common areas) caused by the tenant, a member of the household or a guest

 

To act, and cause household members or guests to act, in a manner which will not disturb other residents’ peaceful enjoyment of their accommodations and will be conducive to maintaining the project in a decent, safe and sanitary condition

 

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors as described in Sections 13-III.E and 13 III.F. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.


13-III.C. OTHER AUTHORIZED REASONS FOR TERMINATION [24 CFR 966.4(l)(2) and (5)(ii)(B)]

HUD authorizes PHAs to terminate the lease for reasons other than those described in the previous sections. These reasons are referred to as “other good cause.”

Other Good Cause [24 CFR 966.4(l)(2)(ii)(B) and (C)]

 

HUD regulations state that the PHA may terminate tenancy for other good cause. The regulations provide a few examples of other good cause, but do not limit the PHA to only those examples. The Violence against Women Reauthorization Act of 2005 explicitly prohibits PHAs from considering incidents of actual or threatened domestic violence, dating violence, or stalking as “other good cause” for terminating the tenancy or occupancy rights of the victim of such violence [24 CFR 5.2005©(1)].

 

BHHC  Policy

BHHC will terminate the lease for the following reasons.

 

Fugitive Felon or Parole Violator. If a tenant is fleeing to avoid prosecution, or custody or confinement after conviction, for a crime, or attempt to commit a crime, that is a felony under the laws of the place from which the individual flees, or that, in the case of the State of New Jersey, is a high misdemeanor; or violating a condition of probation or parole imposed under federal or state law.

 

Persons subject to sex offender registration requirement. If any member of the household has, during their current public housing tenancy, become subject to a registration requirement under a state sex offender registration program.

 

Discovery after admission of facts that made the tenant ineligible

 

Discovery of material false statements or fraud by the tenant in connection with an application for assistance or with reexamination of income

 

Failure to furnish such information and certifications regarding family composition and income as may be necessary for BHHC to make determinations with respect to rent, eligibility, and the appropriateness of dwelling size

 

Failure to transfer to an appropriate size dwelling unit based on family composition, upon appropriate notice by BHHC that such a dwelling unit is available

 

Failure to permit access to the unit by BHHC after proper advance notification for the purpose of performing routine inspections and maintenance, for making improvements or repairs, or to show the dwelling unit for re-leasing, or without advance notice if there is reasonable cause to believe that an emergency exists

 

Failure to promptly inform BHHC of the birth, adoption or court-awarded custody of a child. In such a case, promptly means within 10 business days of the event.

 

Failure to abide by the provisions of BHHC pet policy

If the family has breached the terms of a repayment agreement entered into with BHHC

 

If a family member has violated federal, state, or local law that imposes obligations in connection with the occupancy or use of the premises.

If a household member has engaged in or threatened violent or abusive behavior toward BHHC personnel.

Abusive or violent behavior towards BHHC personnel includes verbal as well as physical abuse or violence. Use of racial epithets, or other language, written or oral, that is customarily used to intimidate may be considered abusive or violent behavior.

Threatening refers to oral or written threats or 
physical gestures that communicate intent to abuse or
commit violence.

In making its decision to terminate the lease, BHHC will consider alternatives as described in Section 13-III.D and other factors described in Sections 13-III.E and 13 III.F. Upon consideration of such alternatives and factors, BHHC may, on a case-by-case basis, choose not to terminate the lease.

 

Family Absence from Unit [24 CFR 982.551(i)]

It is reasonable that the family may be absent from the public housing unit for brief periods. However, the PHA needs a policy on how long the family may be absent from the unit. Absence in this context means that no member of the family is residing in the unit.

 

BHHC Policy

The family must supply any information or certification requested by BHHC to verify that the family is living in the unit, or relating to family absence from the unit, including any BHHC-requested information or certification on the purposes of family absences.

 

The family must cooperate with BHHC for this purpose.

 

The family must promptly notify BHHC when all family members will be absent from the unit for an extended period. An extended period is defined as any period greater than 30 calendar days. In such a case promptly means within 10 business days of the start of the extended absence.

 

If a family is absent from the public housing unit for more than 180 consecutive days, and the family does not adequately verify that they are living in the unit, BHHC will terminate the lease for other good cause.

 

Abandonment  If the family appears to have vacated the unit without giving proper notice, BHHC will follow state and local landlord-tenant law pertaining to abandonment before taking possession of the unit. If necessary, BHHC will secure the unit immediately to prevent vandalism and other criminal activity.


Over-Income Families [24 CFR 960.261 and FR 11/26/04, p. 68786]

 

Subject to certain restrictions, HUD authorizes PHAs to evict or terminate the tenancies of families because they are over income. Unless required to do so by local law, the PHA may not evict or terminate the tenancy of a family solely because the family is over income if: (1) the family has a valid contract of participation in the Family Self-Sufficiency (FSS) program, or (2) the family is currently receiving the earned income disallowance. This rule does not require

PHAs to evict over-income residents, but rather gives PHAs the discretion to do so thereby making units available for applicants who are income-eligible.

 

BHHC Policy

BHHC will not evict or terminate the tenancies of families solely because they are over income.

13-III.D. ALTERNATIVES TO TERMINATION OF TENANCY

 

Exclusion of Culpable Household Member [24 CFR 966.4(l)(5)(vii)(C)]

 

As an alternative to termination of the lease for criminal activity or alcohol abuse HUD provides that the PHA may consider exclusion of the culpable household member. Such an alternative can be used, by PHA policy, for any other reason where such a solution appears viable.

 

BHHC Policy

BHHC will consider requiring the tenant to exclude a household member in order to continue to reside in the assisted unit, where that household member has participated in or been culpable for action or failure to act that warrants termination.

 

As a condition of the family’s continued occupancy, the head of household must certify that the culpable household member has vacated the unit and will not be permitted to visit or to stay as a guest in the assisted unit. The family must present evidence of the former household member’s current address upon BHHC request.

 

Repayment of Family Debts

 

BHHC Policy

If a family owes amounts to BHHC, as a condition of continued occupancy, BHHC will require the family to repay the full amount or to enter into a repayment agreement, within 30 days of receiving notice from BHHC of the amount owed. See Chapter 16 for policies on repayment agreements.


13-III.E. CRITERIA FOR DECIDING TO TERMINATE TENANCY

 

A PHA that has grounds to terminate a tenancy is not required to do so, except as explained in Part II of this chapter, and may consider all of the circumstances relevant to a particular case before making a decision.

 

Evidence [24 CFR 966.4]

 

For criminal activity, HUD permits the PHA to terminate the lease if a preponderance of the evidence indicates that a household member has engaged in the activity, regardless of whether the household member has been arrested or convicted, and without satisfying the standard of proof used for a criminal conviction.

 

BHHC Policy

BHHC will use the concept of the preponderance of the evidence as the standard for making all termination decisions.

 

Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Preponderance of the evidence may not be determined by the number of witnesses, but by the greater weight of all evidence.


Consideration of Circumstances [24 CFR 966.4(l)(5)(vii)(B)]

Although it is required that certain lease provisions exist for criminal activity and alcohol abuse, HUD provides that the PHA may consider all circumstances relevant to a particular case in order to determine whether or not to terminate the lease.

 

Such relevant circumstances can also be considered when terminating the lease for any other reason.

 

BHHC Policy

 

BHHC will consider the following factors before deciding whether to terminate the lease for any of the HUD required lease provisions or for any other reasons:

The seriousness of the offending action, especially with 
respect to how it would affect other residents
The extent of participation or culpability of the leaseholder,
or other household members, in the offending action,
including whether the culpable member is a minor, a
person with disabilities, or (as discussed further in
section 13-III.F) a victim of domestic violence, dating
violence, or stalking
The effects that the eviction will have on other family 
members who were not involved in the action or failure
to act
The effect on the community of the termination, or of 
BHHC’s failure to terminate the tenancy
The effect of the BHHC’s decision on the integrity of the 
public housing program
The demand for housing by eligible families who will 
adhere to lease responsibilities
The extent to which the leaseholder has shown personal 
responsibility and whether they have taken all reasonable
steps to prevent or mitigate the offending action
The length of time since the violation occurred, the 
family’s recent history, and the likelihood of favorable
conduct in the future
In the case of program abuse, the dollar amount of the 
underpaid rent and whether or not a false certification
was signed by the family

Consideration of Rehabilitation [24 CFR 966.4(l)(5)(vii)(D)]

 

HUD authorizes PHAs to take into consideration whether a household member who had used illegal drugs or abused alcohol and is no longer engaging in such use or abuse is participating in or has successfully completed a supervised drug or alcohol rehabilitation program.

 

BHHC Policy

In determining whether to terminate the lease for illegal drug use or a pattern of illegal drug use, or for abuse or a pattern of abuse of alcohol, by a household member who is no longer engaging in such use or abuse, BHHC will consider whether such household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program, or has otherwise been rehabilitated successfully.

 

For this purpose BHHC will require the tenant to submit evidence of the household member’s current participation in, or successful completion of, a supervised drug or alcohol rehabilitation program or evidence of otherwise having been rehabilitated successfully.

 

Reasonable Accommodation [24 CFR 966.7]

 

If the family includes a person with disabilities, the PHA’s decision to terminate the family’s lease is subject to consideration of reasonable accommodation in accordance with 24 CFR Part 8.

 

BHHC Policy

If a family indicates that the behavior of a family member with a disability is the reason for a proposed termination of lease, BHHC will determine whether the behavior is related to the disability. If so, upon the family’s request, BHHC will determine whether alternative measures are appropriate as a reasonable accommodation. BHHC will only consider accommodations that can reasonably be expected to address the behavior that is the basis of the proposed lease termination. See Chapter 2 for a discussion of reasonable accommodation.

 

Nondiscrimination Limitation [24 CFR 966.4(l)(5)(vii)(F)]

 

The PHA’s eviction actions must be consistent with fair housing and equal opportunity provisions of 24 CFR 5.105.


13-III.F. TERMINATIONS RELATED TO DOMESTIC VIOLENCE, DATING     VIOLENCEN OR STALKING

This section addresses the protections against termination of tenancy that the Violence against Women Act of 2005 (VAWA) provides for public housing residents who are victims of domestic violence, dating violence or stalking.  For general VAWA requirements and PHA policies pertaining to notification, documentation and confidentiality; see section 16-VII of this ACOP, where definitions of key VAWA terms are also located.

VAWA Protections against Termination [24 CFR 5.2005(c)]

 

VAWA provides that “criminal activity directly relating to domestic violence, dating violence, or stalking, engaged in by a member of a tenant’s household or any guest or other person under the tenant’s control, shall not be cause for termination of the tenancy or occupancy rights, or assistance to the victim, if the tenant or immediate family member of the tenant is the victim

[24 CFR 5.2005(c)].

 

VAWA further provides that incidents of actual or threatened domestic violence, dating violence, or stalking may not be construed either as serious or repeated violations of the lease by the victim of such violence or as good cause for terminating the tenancy or occupancy rights of the victim of such violence [24 CFR 5.2005(c)(1)].

 

Limits on VAWA Protections [24 CFR 5.2005(d) and (e)]

 

While VAWA prohibits a PHA from using domestic violence, dating violence, or stalking as the cause for termination or eviction action against a public housing tenant who is the victim of the abuse, the protection it provides are not absolute.  Specifically:

 

·          VAWA does not limit the PHA’s otherwise available authority to terminate assistance to or evict a victim for lease violations not premised on an act of domestic violence, dating violence, or stalking providing that the PHA does not subject the victim to a more demanding standard than the standard to which it holds other tenants.

·          VAWA does not limit a PHA’s authority to terminate the tenancy of any public housing tenant if the PHA can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the property if that tenants’ tenancy is not terminated.

HUD regulations define actual and imminent threat to mean words, guesters, actions, or other indicators of a physical threat that (a) is real, (b) would occur within an immediate time frame, and (c0 could result in death or serious bodily harm {24 CFR 5.2005(d)(2) and (e)].  In determining whether an individual would pose an actual and imminent threat the factor(s) to be considered include:

·          The duration of the risk

·          The nature and severity of the potential harm

·          The likelihood that the potential harm will occur

·          The length of time before the potential harm would occur  [24 CFR 5.2005(e)]


Even when a victim poses an actual and imminent threat however, HUD regulations authorize a PHA to terminate the victim’s assistance “only when there are no other actions that could be taken to reduce or eliminate the threat” [24 CFR 5.2005(d)(3)]. 

 

BHHC Policy

In determining whether a public housing tenant who is a victim of domestic violence, dating violence, or stalking is an actual and imminent threat to other tenants or those employed at or providing service to a property, BHHC will consider the following, and any other relevant factors:

·          Whether the threat is towards an employee or tenant other than the victim of domestic violence, dating violence or stalking

·          Whether the threat is a physical danger beyond speculative threat

·          Whether the threat to other tenants or employees can be eliminated in some other way, such as by helping the victim relocate to a confidential location, transferring the victim to another unit, or seeking a legal remedy to prevent the perpetrator from acting on the threat

If the tenant wishes to contest BHHC’s determination that he or she is an actual and imminent threat to other tenants or employees, the tenant may do so as part of the grievance hearing or in a court proceeding.

 

Documentation of Abuse [24 CFR 5.2007]

BHHC Policy

When an individual facing termination of tenancy for reasons related to domestic violence, dating violence or stalking claims protection under VAWAS, BHHC will request that the individual provide documentation supporting the claim in accordance with the policies in section 16-VIID of this ACOP

 

BHHC reserves the right to waive the documentation requirements if it determines that a statement or other corroborating evidence from the individual will suffice.  In such cases BHHC will document the waiver in the individuals file

Terminating or Evicting a Perpetrator of Domestic Violence  [24 CFR 5.2005(d) and (e)]

 

Although VAWA provides protection from termination for victims of domestic violence, it does not provide such protection for perpetrators.  In fact, VAWA gives the PHA the explicit authority to bifurcate a lease, or remove a household member from a lease, “ in order to evict, remove, terminate occupancy rights, or terminate assistance to any tenant or lawful occupant who engages in criminal acts of physical violence against family members or others, without evicting, removing, terminating assistance to or otherwise penalizing the victim of such violence who is a tenant or lawful occupant” [24 CFR 5.2009(a)].  Moreover HUD regulations impose on the PHA the obligation to consider lease bifurcation in any circumstances involving domestic violence, dating violence or stalking [24 CFR 966.4(e)(9)]. 

Specific lease language affirming the PHA’s authority to bifurcate a lease is not necessary and the authority supersedes any local, state, federal law to the contrary.  However, if the PHA chooses to exercise its authority to bifurcate a lease, it must follow any procedures prescribed by HUD or by applicable local, state or federal law for eviction, lease termination or termination of assistance.  This means that the PHA must follow the same rules when terminating or evicting an individual as it would when terminating or evicting an entire family [3/16/07 Federal Register notice on the applicability of VAWA to HUD programs].

   

BHHC Policy

BHHC will bifurcate a family’s lease and terminate the tenancy of a family member if BHHC determines that the family member has committee criminal acts of physical violence against other family members or others.  This action will not affect the tenancy or program assistance of the remaining non-culpable family members.

 

In making its decision, BHHC will consider all credible evidence, including but not limited to a signed certification (form HUD-50066) or other documentation of abuse submitted to the PHA by the victim in accordance with this section and section 16-VII.D.  BHHC will also consider the factors in section 13.III.E.  Upon such consideration BHHC may on a case-by-case basis, choose not to bifurcate the lease and terminate the tenancy of the culpable family member. 

 

If BHHC chooses to bifurcate the lease and terminate the tenancy of the culpable family member, it will do so in accordance with the lease, applicable law, and the policies in this ACOP.  If necessary BHHC will also take steps to ensure that the remaining family members have a safe place to live during the termination process.  For example BHHC may offer the remaining family members another public housing unit, if available; it may help them relocate to a confidential location; or it may refer them to a victim service provider or other agency with shelter facilities. 

When an individual facing termination of tenancy for reasons related to domestic violence, dating violence or stalking claims protection under VAWA, BHHC will request that the individual provide documentation supporting the claim in accordance with the policies in section 16-VIID of this ACOP

Victim Documentation

 

BHHC Policy

When a tenant family is facing lease termination because of the actions of a tenant, household member, guest, or other person under the tenant’s control and a tenant or immediate family member of the tenant’s family claims that she or he is the victim of such actions and that the actions are related to domestic violence, dating violence, or stalking, BHHC will require the individual to submit documentation affirming that claim.

 

The documentation must include two elements:

 

A signed statement by the victim that provides the name of the perpetrator and certifies that the incidents in question are bona fide incidents of actual or threatened domestic violence, dating violence, or stalking

 

One of the following:

 

A police or court record documenting the actual or threatened abuse

A statement signed by an employee, agent, or volunteer of a victim service provider; an attorney; a medical professional; or another knowledgeable professional from whom the victim has sought assistance in addressing the actual or threatened abuse. The professional must attest under penalty of perjury that the incidents in question are bona fide incidents of abuse, and the victim must sign or attest to the statement.

 

The required certification and supporting documentation must be submitted to BHHC within 14 business days after the individual claiming victim status receives a request for such certification. BHHC, owner or manager will be aware that the delivery of the certification form to the tenant in response to an incident via mail may place the victim at risk, e.g., the abuser may monitor the mail. BHHC may require that the tenant come into the office to pick up the certification form and will work with tenants to make delivery arrangements that do not place the tenant at risk. This 14-day deadline may be extended at BHHC’s discretion. If the individual does not provide the required certification and supporting documentation within 14 business days, or the approved extension period, BHHC may proceed with assistance termination.

BHHC also reserves the right to waive these victim verification requirements and accept only a self-certification from the victim if BHHC deems the victim’s life to be in imminent danger.

 

Once a victim has completed certification requirements, BHHC will continue to assist the victim and may use bifurcation as a tool to remove a perpetrator from assistance. Owners will be notified of their legal obligation to continue housing the victim, while using lease bifurcation to remove the perpetrator from a unit.  BHHC will make all best efforts to work with victims of domestic violence before terminating the victim's assistance.

 

In extreme circumstances when BHHC can demonstrate an actual and imminent threat to other participants or those employed at or providing service to the property if the participant’s (including the victim's) tenancy is not terminated, BHHC will bypass the standard process and proceed with the immediate termination of the family’s assistance.

 

 

PHA Confidentiality Requirements

 

All information provided to the PHA regarding domestic violence, dating violence, or stalking, including the fact that an individual is a victim of such violence or stalking, must be retained in confidence and may neither be entered into any shared data base nor provided to any related entity, except to the extent that the disclosure (a) is requested or consented to by the individual in writing, (b) is required for use in an eviction proceeding, or (c) is otherwise required by applicable law.


PART IV: NOTIFICATION REQUIREMENTS, EVICTION PROCEDURES
AND RECORD KEEPING

13-IV.A. OVERVIEW

 

HUD regulations specify the requirements for the notice that must be provided prior to lease termination. This part discusses those requirements and the specific requirements that precede and follow termination for certain criminal activities which are addressed in the regulations.  This part also discusses specific requirements pertaining to the actual eviction of families and record keeping.

13-IV.B. CONDUCTING CRIMINAL RECORDS CHECKS [24 CFR 5.903(e)(ii) and 24 CFR 960.259]

 

HUD authorizes PHAs to conduct criminal records checks on public housing residents for lease enforcement and eviction. PHA policy determines when the PHA will conduct such checks.

 

BHHC Policy

BHHC will conduct criminal records checks when it has come to the attention of BHHC, either from local law enforcement or by other means that an individual has engaged in the destruction of property, engaged in violent activity against another person, or has interfered with the right to peaceful enjoyment of the premises of other residents.  Such checks will also include sex offender registration information. In order to obtain such information, all adult household members must sign consent forms for release of criminal conviction and sex offender registration records on an annual basis.

 

BHHC may not pass along to the tenant the costs of a criminal records check.


13-IV.C. DISCLOSURE OF CRIMINAL RECORDS TO FAMILY [24 CFR 5.903(f), 24 CFR 5.905(d) and 24 CFR 966.4(l)(5)(iv)]

 

In conducting criminal records checks, if the PHA uses the authority of 24 CFR 5.903 and 5.905 to obtain such information, certain protections must be afforded the tenant before any adverse action is taken. In such cases if the PHA obtains criminal records information from a state or local agency showing that a household member has been convicted of a crime, or is subject to a sex offender registration requirement, relevant to lease enforcement or eviction, the PHA must notify the household of the proposed action and must provide the subject of the record and the tenant a copy of such information, and an opportunity to dispute the accuracy and relevance of the information before an eviction or lease enforcement action is taken.

 

BHHC Policy

In all cases where criminal record or sex offender registration information would result in lease enforcement or eviction, BHHC will notify the household in writing of the proposed adverse action and will provide the subject of the record and the tenant a copy of such information, and an opportunity to dispute the accuracy and relevance of the information before an eviction or lease enforcement action is taken.

 

The family will be given 10 business days from the date of BHHC notice, to dispute the accuracy and relevance of the information. If the family does not contact BHHC to dispute the information within that 10 business day period, BHHC will proceed with the termination action.

 

Should the tenant not exercise their right to dispute prior to any adverse action, the tenant still has the right to dispute in the grievance hearing or court trial.


13-IV.D. LEASE TERMINATION NOTICE [24 CFR 966.4(l)(3)]

Form, Delivery, and Content of the Notice

 

Notices of lease termination must be in writing. The notice must state the specific grounds for termination, the date the termination will take place, the resident’s right to reply to the termination notice, and their right to examine PHA documents directly relevant to the termination or eviction. If the PHA does not make the documents available for examination upon request by the tenant, the PHA may not proceed with the eviction [24 CFR 996.4(m)].

 

When the PHA is required to offer the resident an opportunity for a grievance hearing, the notice must also inform the resident of their right to request a hearing in accordance with the PHA’s grievance procedure. In these cases, the tenancy shall not terminate until the time for the tenant to request a grievance hearing has expired and the grievance procedure has been completed.

 

When the PHA is not required to offer the resident an opportunity for a grievance hearing because HUD has made a due process determination and the lease termination is for criminal activity that threatens health, safety or right to peaceful enjoyment or for drug-related criminal activity, the notice of lease termination must state that the tenant is not entitled to a grievance hearing on the termination. It must specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that the eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations. The notice must also state whether the eviction is for a criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises of other residents or employees of the PHA, or for a drug-related criminal activity on or off the premises.

 

BHHC Policy

BHHC will attempt to deliver notices of lease termination directly to the tenant or an adult member of the household. If such attempt fails, the notice will be sent by first-class mail the same day.

 

All notices of lease termination will include a statement of the protection against termination provided by the Violence against Women Act of 2005 (VAWA) for victims of domestic violence, dating violence, or stalking (see section 16-VII.C).  Any family member who claims that the cause for termination involves (a) criminal acts of physical violence against family members or others or (b) incidents of domestic violence, dating violence, or stalking of which a family member is the victim will be given the opportunity to provide documentation in accordance with the policies in Section 13-III.F and 16-VII.D..


Timing of the Notice [24 CFR 966.4(l)(3)(i)]

 

The PHA must give written notice of lease termination of:

·          14 calendar days in the case of failure to pay rent

·          A reasonable period of time considering the seriousness of the situation (but not to exceed 30 calendar days)

If the health or safety of other residents, PHA employees, or persons residing in the immediate vicinity of the premises is threatened

If any member of the household has engaged in any drug-related criminal activity or violent criminal activity

If any member of the household has been convicted of a felony

·          30 calendar days in any other case, except that if a state or local law allows a shorter notice period, such shorter period shall apply

 

BHHC Policy

BHHC will give written notice of 14 calendar days for nonpayment of rent. For all other lease terminations the PHA will give 30 days’ written notice or, if state or local law allows less than 30 days, such shorter notice will be given.

 

The Notice to Vacate that may be required under state or local law may be combined with or run concurrently with the notice of lease termination.

 

Notice of Nonrenewal Due to Community Service Noncompliance

[24 CFR 966.4(l)(2)(ii)(D), 24 CFR 960.603(b) and 24 CFR 960.607(b)]

When the PHA finds that a family is in noncompliance with the community service requirement, the tenant and any other noncompliant resident must be notified in writing of this determination.

Notices of noncompliance will be issued in accordance with the requirements and policies in Section 11-I.E.

 

BHHC Policy

If after receiving a notice of initial noncompliance the family does not request a grievance hearing, or does not take either corrective action required by the notice within the required timeframe, a termination notice will be issued in accordance with the policies above.

 

If a family agreed to cure initial noncompliance by signing an agreement, and is still in noncompliance after being provided the 12-month opportunity to cure, the family will be issued a notice of continued noncompliance. The notice of continued noncompliance will be sent in accordance with the policies in Section 11-I.E. and will also serve as the notice of termination of tenancy.


Notice of Termination Based on Citizenship Status [24 CFR 5.514 (c) and (d)]

 

In cases where termination of tenancy is based on citizenship status, HUD requires the notice of termination to contain additional information. In addition to advising the family of the reasons their assistance is being terminated, the notice must also advise the family of any of the following that apply: the family’s eligibility for proration of assistance, the criteria and procedures for obtaining relief under the provisions for preservation of families, the family’s right to request an appeal to the USCIS of the results of secondary verification of immigration status and to submit additional documentation or a written explanation in support of the appeal, and the family’s right to request an informal hearing with the PHA either upon completion of the USCIS appeal or in lieu of the USCIS appeal. Please see Chapter 14 for the PHA’s informal hearing procedures.

13-IV.E. EVICTION [24 CFR 966.4(l)(4) and 966.4(m)]

 

Eviction notice means a notice to vacate, or a complaint or other initial pleading used under state or local law to commence an eviction action. The PHA may only evict the tenant from the unit by instituting a court action, unless the law of the jurisdiction permits eviction by administrative action, after a due process administrative hearing, and without a court determination of the rights and liabilities of the parties.

 

BHHC Policy

When a family does not vacate the unit after receipt of a termination notice, by the deadline given in the notice, BHHC will follow state and local landlord-tenant law in filing an eviction action with the local court that has jurisdiction in such cases.

 

If the eviction action is finalized in court and the family remains in occupancy beyond the deadline to vacate given by the court, BHHC will seek the assistance of the court to remove the family from the premises as per state and local law.

 

BHHC may not proceed with an eviction action if BHHC has not made available the documents to be used in the case against the family, and has not afforded the family the opportunity to examine and copy such documents in accordance with the provisions of

[24 CFR 966.4(l)(3) and (m)].


13-IV.F. NOTIFICATION TO POST OFFICE [24CFR 966.4(l)(5)(iii)(B)]

 

When the PHA evicts an individual or family for criminal activity, including drug-related criminal activity, the PHA must notify the local post office serving the dwelling unit that the individual or family is no longer residing in the unit.

13-IV.G. RECORD KEEPING

For more information concerning general record keeping, see Chapter 16.

 

BHHC Policy

A written record of every termination and/or eviction will be maintained by BHHC at the development where the family was residing, and will contain the following information:

 

Name of resident, number and identification of unit occupied

 

Date of the notice of lease termination and any other notices required by state or local law; these notices may be on the same form and will run concurrently

 

Specific reason(s) for the notices, citing the lease section or provision that was violated,  and other facts pertinent to the issuing of the notices described in detail (other than any criminal history reports obtained solely through the authorization provided in 24 CFR 5.903 and 5.905)

 

Date and method of notifying the resident

 

Summaries of any conferences held with the resident including dates, names of conference participants, and conclusions

Copyright 2008 Benton Harbor Housing Commission 721 Nate Wells sr Drive, Benton Harbor, MI 49022