Illinois Housing Law Overview

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Author: Larry Wood, LAF
Last updated: July 2012

Housing Laws

Federal

  • The statutes and regulations governing the federally-subsidized housing programs (e.g., Public Housing and Section 8) are set forth below in the sections addressing those programs.
  • Fair Housing Act, 42 U.S.C. § 3604.
  • Violence Against Women Act, 42 U.S.C. § 1437f(c)(9).

State

  • Forcible Entry and Detainer Act, 735 ILCS 5/9-101 et seq. (Forcible Act).
  • Governs the eviction process in Illinois.
  •  Rental Property Utility Services Act, 765 ILCS 735.
    • Authorizes tenants to pay for utility service the landlord has failed to provide, and to deduct the cost of such service from the rent.
    • Also authorizes tenants to sue for utility taps and recover treble damages.
  • Mobile Home Landlord and Tenant Rights Act, 765 ILCS 745.
  • Retaliatory Eviction Act, 765 ILCS 720/1.
  • Security Deposit Return Act, 765 ILCS 710 et seq.
  • Security Deposit Interest Act, 765 ILCS 715 et seq.

Local

Chicago
  • Residential Landlords and Tenants Ordinance (RLTO), Chicago Municipal Code, Title 5, Chapter 12.
  • Enacted pursuant to Chicago’s home-rule authority.
  • Supersedes conflicting state laws.
    • “The Illinois Supreme Court has repeatedly held that an ordinance which is within a municipality’s home-rule power supersedes, within the home-rule unit’s territory, a conflicting statute passed before the 1970 Constitution took effect.” Reed v. Burns, 238 Ill. App. 3d 148 (1st Dist. 1992).
  • Constitutionality.
    • The RLTO survived a constitutional challenge filed the day after it went into effect on September 8, 1986. Chicago Bd. Of Realtors v. City of Chicago, 819 F.2d 732 (7th Cir. 1987) (denying landlords’ motion for a preliminary injunction because they failed to establish likelihood of succeeding on claim that RLTO violated Contracts Clause, and because RLTO does not violate landlords’ substantive due process rights).
    • Judges Posner and Easterbrook filed a concurring opinion in which they suggested other potentially more successful constitutional challenges (violations of the commerce and eminent domain clauses) that the landlords could raise. Id. at 741-45.
Evanston
Mount Prospect

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Chicago RLTO - Important Provisions

Purpose and Scope

  • § 5-12-010 of the RLTO.
  • The RLTO shall be liberally construed to promote its purposes and policies.
    • “One clear purpose of the ordinance is to protect tenants.  This purpose is rooted in the public policy that recognizes that tenants are in a disadvantageous position with respect to landlords.” Lawrence, 307 Ill. App. 3d 155, 160 (1st Dist. 1999).
    • “The Ordinance was passed with a recognition of the historical disparity of bargaining positions between landlord[s] and tenants and to protect tenants from overreaching by residential landlords.” Pitts v. Holt, 304 Ill. App. 3d 871, 873 (1st Dist. 1999).
  • The RLTO governs every dwelling unit in Chicago except for those identified in § 5-12-020. See below.
  • It specifically governs units subsidized by HUD or the State of Illinois, including CHA and IHDA units, to the extent the RLTO is not in direct conflict with statutes or regulations governing such programs.
    • A direct conflict occurs when it is impossible to comply with both the RLTO and federal requirements or where the RLTO stands as an obstacle to fully achieving the federal objective. See Resource Technology Corp. v. Illinois Commerce Comm'n, 354 Ill. App. 3d 895, 901 (1st Dist. 2005) (explaining the principle behind conflict preemption).
    • The RLTO is not in direct conflict with federal regulations merely because it imposes requirements not found in these regulations. See Bourbeau v. Woodner, 549 F. Supp. 2d 78, 88 (D.C. 2008) (state housing law did not conflict with federal housing law merely because it imposed additional requirements).

Exclusions

  • § 5-12-020 of the RLTO.
  • Dwelling units in owner-occupied buildings containing six or fewer apartments.
    • NOTE:  The RLTO’s prohibition against lockouts (see below) still applies to these units.
  • Dwelling units in hotels, motels, inns, bed-and-breakfast establishments, rooming houses and boardinghouses, but only until such time as the tenant has occupied the unit for 32 or more consecutive days and tenant pays a monthly rent.
    • NOTE:  The RLTO’s prohibition against lockouts still applies to these units.
  • Housing accommodations in any hospital, convent, monastery, extended care facility, asylum or not-for-profit home for the aged, temporary overnight shelter, transitional shelter, and student housing.
  • Unit occupied either by a real estate contract purchaser prior to transfer of title, or by the seller subsequent to the transfer.
  • Unit occupied by landlord’s employee whose right to occupancy is conditioned upon employment in or about the premises.
  • Unit in a cooperative occupied by the holder of a proprietary lease.

Landlord's Right of Access

  • §§ 5-12-050 and 5-12-060 of the RLTO.
  • 48 hours’ advance notice unless emergency.
  • Enter only between 8:00 a.m. and 8:00 p.m.

Security Deposits

  • § 5-12-080 of the RLTO.
  • Landlord may not commingle tenant’s security deposit with his own assets.
    • No de minimus exception to the prohibition against commingling. Plambeck v. Greystone Mgmt., 281 Ill. App. 3d 260, 272 (1st Dist. 1996).
  • Within 30 days after the end of each 12-month period, landlord must pay tenant interest on deposit or deduct the interest from rent due.
  • Within 45 days after the tenant vacates the premises, the landlord must return the security deposit.
    • The tenant vacates the premises when she actually surrenders possession of the unit, usually by turning over her keys to the landlord. Meyer v. Cohen, 260 Ill. App. 2d 351, 361 (1st Dist. 1993).
    • The landlord may withhold any unpaid rent plus the cost of repairing damage that exceeds normal wear and tear.
    • If the landlord intends to withhold the cost of repairs, then within 30 days after the tenant vacates the premises he must send the tenant an itemized statement of the damages and the actual or estimated cost of repair.  
  • Damages for failing to comply with provisions governing the treatment of security deposits.
    • Twice the amount of the deposit.
    • Violation need not be willful. Lawrence v. Regent Realty Group, 197 Ill. 2d 1, 9-10 (2001) (proof that the landlord's failure to pay interest on security deposit was willful not required for award to tenant of double the amount of deposit under RLTO), overruling Szpila v. Burke, 279 Ill. App. 3d 964 (1st Dist. 1996).
    • Tenant is entitled to no more than a single award of damages, even for multiple violations of the RLTO’s security deposit provisions. Krawczyk v. Livaditis, 366 Ill. App. 3d 375, 377-78 (1st Dist. 2006).

Tenant Remedies

  • Repair and deduct. § 5-12-110(c).
    • Cost of repair may not exceed $500 or half the month’s rent, whichever is greater.
    • Must first give the landlord 14 days to make repair.
  • Withhold rent. § 5-12-110(d).
    • Must first give the landlord 14 days to make necessary repairs.
    • Withhold an amount that reflects the amount by which the landlord’s failure to maintain the premises has reduced the unit’s value.
  • Recover damages by claim or defense. § 5-12-110(e).
  • Remedies for failing to provide essential service. § 5-12-110(f)-(h).

Curing Lease Violations

  • § 5-12-130(b) of RLTO.
  • Tenants have a right to cure lease violations, provided they can be cured.
  • Termination notice must inform tenant of her right to cure within no less than ten days.
  • Landlord cannot unilaterally decide violation is not curable.  
  • Criminal breaches are not excluded from the realm of curable violations. Tenant may be able to cure another person’s criminal violation by barring the offender from the premises.

Abandonment

  • § 5-12-130(e) of RLTO.
  • Definition:
    • Actual notice to landlord of tenant’s intent to leave and not return; or
    • All tenants absent for 21 days, rent unpaid for that period, and personal property removed from the premises; or
    • All tenants absent for 32 days and rent unpaid for that period.
  • Definition important because landlords often defend against lock-out claim by alleging that tenant abandoned the unit.

Special Waiver Provision

  • § 5-12-130(g) of RLTO.
  • Acceptance of rent due, after expiration of termination notice demanding rent, constitutes waiver.  
  • Conflicts with and supersedes § 209 of the Forcible Act.

Notice of Nonrenewal

  • § 5-12-130(j) of RLTO.
  • Landlord must provide tenant with no less than thirty days' advance notice of intent to not renew the lease.

Prohibited Lease Provisions

  • § 5-12-140 of RLTO.
  • Lease may not provide that:
    • Tenant agrees to waive or forego any rights or remedies provided by RLTO;
    • Tenant agrees to confess judgment on any claim arising out of the lease;
    • Tenant agrees to limit the landlord’s legal liability;
    • Tenant agrees to waive any written termination notice or manner of service thereof provided by law;
    • Tenant agrees to waive right to trial by jury.

Late Fees

  • §§ 5-12-140(h) and (i) of RLTO.
  • Monthly late fee may not exceed $10 for first $500 in rent, plus additional amount equal to 5% of amount by which rent exceeds $500.
  • Damages for violating prohibition against excessive late fees is equal to two months’ rent.
    • When calculating permissible late fee in subsidized housing case, use tenant’s share of the rent. When calculating damages, use the total rent.
    • This method is appropriate because late fee must be affordable and damages must have deterrent effect.
      • Curtis v. Surrette, 49 Mass. App. Ct. 99, (Mass. App. Ct. 2000) (“Allowing the [Section 8] tenants to recover on their counterclaim on the basis of the full contract rent, while allowing the landlord to recover on his claim for back rent based only upon the tenants' share of the rent, does not result in a windfall to the tenants.”).
      • Cruz v. Wideman, 633 N.E.2d 384, 388 (Mass 1994) (a landlord “is not shielded from liability to which it would otherwise be exposed merely because a part of its income is derived from Federal subsidy funds.”)
      • Simon v. Solomon, 431 N.E.2d 556, 569 n.13  (Mass. 1982) (If damages were based on the subsidized tenant’s contribution as opposed to the full contract rent, “[l]ow income tenants receiving rent subsidies, who are often the victims of the most flagrant violations, would recover the least damages, and so would have little incentive to sue.”).
  • A landlord cannot make an end-run around the prohibition against excessive late fees by offering a discount if rent is paid before a specified date.

Prohibition Against Lockouts

  • § 5-12-160 of RLTO.
  • Lockout defined to include any attempt to evict a tenant without authority of law.
  • The RLTO’s prohibition against lockouts is discussed in much greater detail below under Lockouts.

Summary of RLTO

  • § 5-12-170 of RLTO.
  • Landlord must attach summary to written lease.
  • If no written lease, landlord must give tenant the summary.
  • If landlord violates this provision, tenant may terminate lease upon written notice and obtain $100.
    • Written notice must specify date of termination.
    • Date of termination must be within next 30 days.
    • The tenant’s motive for invoking the right of termination is irrelevant.  Plambeck v. Greystone Mgmt., 281 Ill. App. 3d 260, 266-67 (1st Dist. 1996).

Attorneys' Fees

  • § 5-12-190 of RLTO.
  • With one exception (see below), fees may be awarded to the prevailing plaintiff in any suit arising out of the RLTO.
  • Fees are not available to the prevailing plaintiff in a forcible action.
  • Prevailing plaintiff is entitled to a hearing to determine the reasonable amount of fees. Plambeck, 281 Ill. App. 3d at 273.
  • The prevailing plaintiff’s burden of proof, and the factors to be considered when awarding fees, are set forth in Plambeck, 281 Ill. App. 3d at 273-74.
  • Courts may not discount fees to a tenant represented by a legal services provider. Pitts, 304 Ill. App. 3d at 874.

Statute of Limitations

  • The RLTO does not contain a provision limiting the time within which an action must be brought.
  • Accordingly, the Illinois Code of Civil Procedure governs the statute of limitations for RLTO violations. Landis v. Marc Realty, 235 Ill. 2d 1 (2009).
  • The deadline depends on whether the RLTO provision at issue is penal or remedial in nature.
    • Penal statutes.
      • A statutory penalty imposes automatic liability for a violation of its terms, sets forth a predetermined amount of damages, and imposes damages without regard to the actual damages suffered. 735 ILCS 5/13-202.
      • Statute of limitations is two years.
      • Examples:
        • Sections 5-12-080 (governing the treatment of security deposits) and 5-12-170 (requiring owners to attach a summary of the RLTO to the lease). Namur v. Habitat Co., 294 Ill. App. 3d 1007, 1011 (1st Dist. 1998).
    • Remedial statutes.
      • A remedial statute imposes liability only when actual damages have been sustained, and when such damages can be established in court. Landis.
      • Statute of limitations is five years.
      • Examples:
        • Section 5-12-110(e) (authorizing the tenant to sue for damages arising from landlord’s failure to maintain the premises). Sternic v. Hunter, 344 Ill. App. 3d 915, 918-19 (1st Dist. 2003).
        • Section 5-12-150 (authorizing tenant to sue for landlord’s violation of the prohibition against retaliatory conduct). Sternic, 344 Ill. App. 3d at 918-19 (“Even the two-months’ rent liability under 5-12-150 is related to actual damages because it can be imposed only if it is greater than twice the actual damages.”)

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Lockouts

What Is a Lockout?

  • A lockout is any attempt to evict, without authority of law, someone who has come into possession of the subject premises peacefully and pursuant to some agreement.
    • Examples:
      • Changing, removing, or plugging a lock.
      • Disconnecting utility service.
      • Removing a tenant’s belongings.
      • Removing a tenant’s door or window.
  • A landlord who wants to regain possession of an apartment must follow the procedure set forth in the Forcible Entry and Detainer Act, 735 ILCS 5/9-101 et seq. Specifically, the landlord must:
    • Terminate the tenancy with proper advance written notice.
      • Advance written notice may not be required, however, if:
        • The lease identifies the date on which the tenancy ends; and
        • The tenancy is not governed by a local ordinance that requires advance written notice.
    • File a forcible action.
    • Obtain a judgment for possession.
    • Pay the Sheriff of Cook County to enforce this judgment by changing the locks.

Prohibition Against Lockouts

  • “Under the Illinois Forcible Entry and Detainer Act, a tenant cannot be dispossessed absent a judgment for eviction.” Soldal v. Cook County, Illinois, 506 U.S. 56, 58 (1992).
  • “No person has the right to take possession, by force, of premises occupied or possessed by another, even though the person may be justly entitled to such possession. The forcible entry and detainer statute provides the complete remedy at law for settling such disputes.” People v. Evans, 163 Ill. App. 3d 561, 564 (1st Dist. 1987) (emphasis added).
  • “The force that the statute prohibits can be actual or constructive. A breach of the peace need not occur.” Id.
    • However, in Perry v. Evanston YMCA, 92 Ill. App. 3d 820, 827 (1st Dist. 1981), the court held that “[f]or an act to constitute a constructive eviction, it must disturb the tenant's possession or amount to a clear indication on the part of the landlord to deprive the tenant of the enjoyment of the premises.” The court then concluded that a landlord’s threat to plug the lock on a tenant’s door, “without some overt act in furtherance of this statement,” did not constitute an illegal lockout.
  • “[A] landlord cannot use the criminal trespass statute to settle a dispute over the right to possession of land.” People v. Evans, 163 Ill. App. 3d at 564.

Landlords' Defenses

  • “The tenant abandoned the premises.”
    • This is a factual issue that necessitates a hearing if the tenant denies abandoning the premises.
    • “Abandonment” has a very specific definition in some local landlord-tenant ordinances. (See below.)
  • “I needed to make necessary repairs.”
  • “I have a judgment for possession against the tenant.”
    • As mentioned above, judgments for possession may be enforced only by the Sheriff of Cook County. 55 ILCS 5/3-6019.
  • “The tenant breached the lease, or remained in the premises after her lease expired, or has unclean hands.”
    • The landlord may very well be entitled to possession of the premises, but he must establish this fact in court. People v. Evans, 163 Ill. App. 3d 561, 564 (1st Dist. 1987) (“The forcible entry and detainer statute provides the complete remedy at law for settling such disputes.”).

Local Prohibitions Against Lockouts

Chicago
  • Section 160 of the Residential Landlords and Tenants Ordinance, Chicago Municipal Code, Title 5, Chapter 12 et seq. (RLTO).
  • Prohibition against lockouts applies to almost every residential unit in Chicago.
    • Exemptions to RLTO’s applicability set forth in § 5-12-020(a) and (b) do not apply in the context of lockouts.
    • Nevertheless, the prohibition against lock-outs does not govern the units described in § 5-12-020(c)-(f).
  • Prohibits threatened as well as actual lockouts.
  • Damages for violating prohibition against lockouts.
    • Civil – an amount equal to twice the monthly rent or two times the actual damages plus attorneys’ fees.
      • Fees may be awarded to prevailing plaintiff in any suit, except for forcible action, arising out of the Ordinance. RLTO, § 5-12-190.
    • Criminal -- $200 to $500 a day.
  • CPD Special Order 93-12.
    • Informs CPD Officers about RLTO’s prohibition against lock-outs.
    • Instructs CPD Officers to investigate all lockout complaints.
    • Ensures that police do not dismiss lockouts as civil matters.
  • Landlord’s potential defenses to allegation that he violated prohibition against lockouts.
    • Tenant abandoned premises.
      • Abandonment has specific definition set forth in § 5-12-130(e) of the RLTO.
        • Actual notice to landlord of tenant’s intent to leave and not return; or
        • All tenants absent for 21 days, rent unpaid for that period, and personal property removed from the premises; or
        • All tenants absent for 32 days or more and rent unpaid for that period.
    • Landlord interfered with possession only to make necessary repair.
Evanston
Mount Prospect
  • Section 23.1811 of the Village Code.
  • Damages for violating prohibition against lockouts are equal to two months’ rent.

Resolving Lockouts without Litigation

  • Advise the tenant to keep on her person some proof (e.g., lease agreement, utility bill) that she resides in the premises.
  • If the tenant has already been locked out, advise her to call the police immediately.
    • In Chicago, inform tenant about Special Order 93-12.
    • If police respond to call but fail to intervene, tenant should get police officers’ badge numbers so you can contact the precinct’s Watch Commander.
  • Get the landlord’s contact information.
  • Call the landlord to get his side of the story.
    • Don’t be hostile.
    • Advise landlord about proper eviction procedures.
    • Remind landlord that if he refuses to restore his tenant to possession of the unit, LAF will likely sue him.
    • After conversation, send a letter in which you summarize the conversation and note any admissions the landlord made.

Seeking Judicial Relief

  • File a verified complaint for injunctive relief.  
  • Because the tenant will most likely need emergency relief, you may file along with the complaint a verified motion for a temporary restraining order (TRO) and a preliminary injunction enjoining the landlord from failing to restore the tenant to possession of her unit. See 735 ILCS 5/11-101.
    • The pleadings should allege facts establishing that:
      • The tenant has suffered and will continue to suffer irreparable injury for which there is no adequate remedy at law;
      • The tenant will most likely succeed on the merits of her complaint; and
      • If the court denies the motion, the tenant will suffer greater harm than the landlord would if the motion were granted.
    • Pursuant to Rule 2.2(a) of the Circuit Court of Cook County, you are not required to provide the landlord with formal notice of your emergency motion.  
      • You should, however, provide the landlord with the best notice you can under the circumstances.
  • In most cases, you will file your complaint and emergency motion in the chancery division. See General Order 2.1(b)(1) of the Circuit Court of Cook County.  
    • If the tenant is the defendant in a pending forcible action, you may seek relief from the forcible court, which has the power to grant injunctive relief. See South Austin Realty Association v. Ethel Sombright, 47 Ill. App. 3d 89, 94 (1st Dist. 1977).
  • Before issuing an injunction, the court may require the tenant to post a bond. See 735 ILCS 5/11-103.  
    • The purpose of the bond is to protect the landlord against any damages he may suffer if the injunction is later found to have been improperly issued. Id.  
    • If the tenant is financially unable to post a bond, or the landlord will suffer no damages as a result of the injunction, the court should waive the bond. See General Electric Co. v. Local 997 United Auto Workers, 8 Ill. App. 2d 154, 167 (3rd Dist. 1955).
  • If the court enters an ex-parte order granting the TRO, this order must set forth, as findings of the court, the facts establishing that a lock-out has occurred. 735 ILCS 5/11-101.  
    • It must also state that the movant has established all the necessary elements of a TRO. Id.  
    • If the order was granted without notice to the landlord, it must state why this was necessary. Id.  
    • It must also set a hearing date for the motion for a preliminary injunction. Id.
    • The order remains in effect for no more than ten days unless it is extended for good cause shown. Id.

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Eviction Practice

Terminating the Tenancy

Written Notice Typically Required
  • Two exceptions:
    • Lease identifies date on which tenancy ends; and
    • Local ordinance (e.g., the RLTO) that requires written notice does not govern the tenancy.
Type of Written Notice Required
  • For nonpayment of rent.
    • Typically, the tenant is entitled to no less than 5 days’ advance written notice. 735 ILCS 5/9-209.
      • Notice must include a demand for a specific amount of rent. Weinberg v. Warren, 340 Ill. App. 365, 368 (1st Dist. 1950).
    • Public housing residents are entitled to no less than 14 days’ advance written notice.  24 C.F.R. 966.4(l)(3)(i)(A).
      • Notice must state that lease will terminate unless the tenant pays the rent due before the notice expires.
      • Notice must also, however, inform the tenant of their right to request a grievance hearing before the notice expires.
      • If the tenant submits a timely request for such a hearing, their lease remains in effect until the grievance process ends.
    • Tenants whose lease agreements are subsidized under the Home Investment Partnership Program are entitled to 30 days’ notice. 24 C.F.R. § 92.253(c).
    • 24 C.F.R. § 247.4(e) provides that, “[i]n any case in which a tenancy is terminated because of the tenant's failure to pay rent, a notice stating the dollar amount of the balance due on the rent account and the date of such computation shall satisfy the requirement of specificity set forth in paragraph (a)(2) of this section.”
      • Applicability. 24 C.F.R. 247.2.
        • Section 8 Loan Management Set-Aside;
        • Section 8 Program for the Disposition of HUD-owned Projects;
        • Section 221(d)(3) Below Market Interest Rate; and
        • Section 236.
        • Section 202.  
    • Paragraph 23(e) of the HUD Model Lease for Subsidized Properties provides that every termination notice must advise the tenant that she “has 10 days within which to discuss the proposed termination of tenancy with the Landlord.”  
      • In those cases, the tenant must be given ten as opposed to five days to pay the amount due. Otherwise, the ten day discussion requirement is meaningless. See Intown Mgmt. Corp. v. Knowling, 1991 WL 204891 (Conn. Sup. Ct. 1991) (termination notice demanding rent and advising tenant that she had ten days to discuss termination with owner was invalid because notice expired prior to the end of this ten-day period).
      • The HUD Model Lease is used in properties that receive subsidies under the following programs:
        • Section 8 New Construction;
        • Section 8 Substantial Rehabilitation;
        • State Housing Agencies Program;
        • Section 8 Loan Management Set-Aside Program.
        • Section 8 Program for the Disposition of HUD-owned Properties.
  • For violations other than nonpayment.
    • Typically, the tenant is entitled to no less than 10 days advance written notice. 735 ILCS 5/9-210.
    • If the RLTO governs the tenancy, the notice must inform the tenant of her right to cure the violation within no less than ten days. RLTO, § 5-12-130(b).
    • Tenants whose lease agreements are subsidized under the Home Investment Partnership Program are entitled to 30 days’ advance written notice. 24 C.F.R. § 92.253(c).
  • To terminate without good cause at the end of the lease term.
    • Week-to-week tenancy.
    • Month-to-month tenancy.
      • 30-day notice. 735 ILCS 5/9-207.
      • Notice must state that the tenancy will terminate on the last day of the calendar month unless rent is due sometime other than the first of the month.  Hoefler v. Erickson, 331 Ill. App. 577, 581 (1st Dist. 1947).
      • In months with 31 days, therefore, the notice must be served no later than the 1st of the month.
      • In months with 30 days, the notice must be served no later than the last day of the preceding month.
  • To terminate the resident’s tenancy in a foreclosed property.
    • Generally there is a 90-day notice requirement, however if the lease is a bona fide lease for a residential dwelling unit the tenant may be entitled to stay until the end of the lease. '
    • Federal law.
    • State law. 735 ILCS 5/15-1701(h)(4). November 19, 2013.

 

Calculating the Date on which the Notice Expires
  • Notice period starts to run on the day after the notice is served and expires at midnight on the last day of the notice period. 5 ILCS 70/1.11.
  • If the last day of the notice period falls on a weekend or holiday, the notice period is extended to the following day. Id.
  • If the notice is sent by certified mail, return receipt requested, the notice period does not start to run until the notice is actually received. Avdich v. Kleinert, 69 Ill. 2d 1, 8-9 (1977).
Manner of Service
  • State law. 735 ILCS 5/9-211.
    • The Forcible Act sets forth three methods of serving a tenant who remains in actual possession of the premises:
      • Personal service
      • Substitute service
      • Certified mail, return receipt requested
    • If the tenant is no longer in possession of the premises, the landlord may serve notice by posting. 735 ILCS 5/9-211.
    • Methods of service identified in statute are not meant to be exhaustive. Prairie Mgmt. Corp. v. Bell, 289 Ill. App. 3d 746, 752 (1st Dist. 1997) (relying on the presence and permissive nature of the word “may” in § 9-211, the court found that this statutory provision does not restrict the service of a notice to the particular methods stated therein).
      • Actual receipt of notice cures landlord’s failure to serve it in accordance with methods set forth in Forcible Act. Id. at 752-53.
      • If the tenant did not receive the notice, however, the landlord’s failure to serve it in accordance with the methods set forth in the Forcible Act constitutes an affirmative defense.
        • This defense is waived if not raised in the trial court.
      • Bell applies only to the Forcible Act. Methods of service identified in federal regulations governing the federally-subsidized housing programs (see below) must still be followed if regulations state that service “shall” or “must” be effected a certain way.
  • Federal law.
    • Public Housing.
      • “[N]otice to a tenant shall be in writing and delivered to the tenant or to an adult member of the tenant's household residing in the dwelling or sent by prepaid first-class mail properly addressed to the tenant.” 24 C.F.R. § 966.4(k)(1)(i).
    • Section 8 Moderate Rehabilitation Program.
      • “The notice of termination must . . . [b]e served on the Family by sending a prepaid first class properly addressed letter (return receipt requested) to the tenant at the dwelling unit or by delivering a copy of the notice to the dwelling unit.” 24 C.F.R. § 882.511(d)(2)(iii).
    • Section 8 LMSA, Section 8 Program for the Disposition of HUD-owned Projects, Section 221(d)(3) BMIR, and 236 Programs. 
      • Procedure set forth at 24 C.F.R. § 247.4(b).
      • Service of the termination notice shall be accomplished by:
        • Sending a letter by first class mail, properly stamped and addressed, to the tenant at his or her address at the project, with a proper return address, and
        • Serving a copy of the notice on any adult person answering the door at the leased dwelling unit, or if no adult responds, by placing the notice under or through the door, if possible, or else by affixing the notice to the door.
      • Service shall not be deemed effective until both notices provided for herein have been accomplished. The date on which the notice shall be deemed to be received by the tenant shall be the date on which the first class letter provided for in this paragraph is mailed, or the date on which the notice provided for in this paragraph is properly given, whichever is later.

Filing Suit

  • Plaintiff may file only after the termination notice expires. Avdich, 69 Ill. 2d at 9 (suit filed before notice expired was premature).
  • A “single action” seeks possession of the premises.
  • A “joint action” seeks possession plus rent.

Service of Summons

Personal or Substitute Service
Constructive Service
  • If personal or substitute service cannot be obtained, the landlord may:
    • Complete an affidavit stating that the tenant on due inquiry cannot be found and serve the tenant by publication or posting in accordance with 735 ILCS 5/2-206.
    • The court may not enter a money judgment against a tenant who has been served by publication or posting. 735 ILCS 5/9-107.
Serving Unknown Occupants
  • 735 ILCS 5/9-107.5.
  • Service of process must be effected by delivering a copy of the summons to the tenant or a household member who is at least 13-years-old.
  • If the summons does not name unknown occupants, and the Sheriff determines when enforcing a judgment for possession that unknown occupants are in the premises, the Sheriff must:
    • Leave or post a copy of the order for possession along with a notice stating that the unknown occupants have 7 days to file a petition setting forth their legal claim for possession.
    • If no legal claim is filed, the Sheriff can enforce the judgment.
Challenging Service of Summons
  • To contest the court’s personal jurisdiction, file a motion to quash “prior to the filing of any other pleading or motion other than a motion for an extension of time to answer or otherwise appear.” 735 ILCS 5/2-301.
  • There is no longer a need to file a special appearance form along with the motion. K. Beyler, The Death of Special Appearance, 88 Ill. B.J. 30, 32 (2000) (Section 2–301 “eliminates the distinction between special appearances and general appearances.”).
  • The defendant may file a general appearance and even a jury demand without waiving the jurisdictional challenge because neither one is a pleading or motion. 
    • “A pleading ‘consists of a party's formal allegations of his claims or defenses,’ and a motion is ‘an application to the court for a ruling or an order in a pending case.’” KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 597 (2nd Dist. 2006) (finding that the defendant did not waive its right to contest the court’s personal jurisdiction by filing its general appearance and jury demand).

Venue

  • Venue lies "in the circuit court for the county where [the subject] premises are situated." 735 ILCS 5/9-106.  
  • If the case is filed in the wrong court, the defendant may file a motion to have the action transferred. 735 ILCS 5/2-104.  
  • This motion may be supported by affidavit. 735 ILCS 5/2-104(c).
  • An objection to venue is waived unless it is made on or before the first appearance date. 735 ILCS 5/2-104(b).
  • A lease provision that permits the landlord to sue in any circuit court in Illinois is unenforceable. Martin-Trigona v. Roderick, 29 Ill. App. 3d 553, 555 (1st Dist. 1975).

Forcible Courts in Cook County

  • Chicago – First Municipal District.
    • Richard J. Daley Center, Chicago, 60602.
    • 40,000 forcible cases filed annually.
    • Five forcible courtrooms.
    • Trial call every weekday at 9:30 and 2:00.
  • Skokie – Second Municipal District.
    • 5600 Old Orchard Road, Skokie, 60077.
    • One forcible courtroom.
    • Forcible call every Friday morning at 9:00.
  • Rolling Meadows – Third Municipal District.
    • 2121 Euclid Avenue, Rolling Meadows, 60008.
    • Three forcible courtrooms.
    • Forcible call every Thursday morning at 9:00.
  • Maywood – Fourth Municipal District.
    • 1500 Maybrook Drive, Maywood, 60153.
    • Two forcible courtrooms.
    • Forcible call every Monday morning at 9:30.
  • Bridgeview -- Fifth Municipal District.
    • 10220 South 76th Avenue, Bridgeview, 60455.
    • One forcible courtroom.
    • Forcible call Wednesday – Friday, at 9:30.
  • Markham – Sixth Municipal District.
    • 16501 South Kedzie Parkway, Markham, 60428.
    • Two forcible courtrooms.
    • Forcible call every Monday morning at 9:00.

Return Date

  • Typically falls on the 14th day after the complaint has been filed.
  • Three options:
    • Proceed to trial; or
    • Request one week continuance to get attorney; or
    • File jury demand.

Jury Demands

  • Parties in forcible action have right to trial by jury. 735 ILCS 5/9-108.
  • Any lease provision purporting to waive this right is unenforceable. Id.
  •  Jury demands must be filed on or before the date on which the answer is due. 735 ILCS 5/2-1105.
    • Because no answer is required in a forcible action (see below), the jury demand should be filed on or before the return date. First Bank of Oak Park v. Carswell, 111 Ill. App. 3d 71, 73 (1st Dist. 1982).
    • However, if the defendant requests on the return date a continuance to get an attorney, the court should honor a jury demand filed on or before second appearance. See Pecoraro v. Kesner, 217 Ill. App. 3d 1039, 1045 (1st Dist. 1991).
  • Waive fees by one of the following two methods:
    • Two methods.
      • File a Civil Legal Services Provider (CLSP) form. “When a party is represented in a civil action by a civil legal services provider, all fees and costs relating to filing, appearing, transcripts on appeal, and service of process shall be waived without the necessity of a motion for that purpose, . . . provided that (i) a determination has been made by the civil legal services provider that the party is indigent and (ii) an attorney's certification that that determination has been made is filed with the clerk of the court along with the complaint, the appearance, or any other paper that would otherwise require payment of a fee.” 735 ILCS 5/5-105.5.
      • File an application to sue or defend as poor person (also known as a “pauper’s petition”). 735 ILCS 5/5-105; S. Ct. Rule 298.

Pre-Trial Procedure

Answer
  • S. Ct. Rule 181(b)(2).
  • No answer required unless ordered by court.  
  • If the court does not order the defendant to answer or otherwise plead, the defendant may raise at trial any defense as if it had been specifically pled. 
Affirmative Defenses and Counterclaims
  • 735 ILCS 5/9-106.
  • "No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise." 
  • Sample affirmative defenses are set forth below.
Motions for "Use and Occupancy" (U&O)
  • Purpose.
    • Allows plaintiff to collect rent while case is pending without waiving right to pursue forcible action.
    • Typically, U&O awarded only prospectively, from date motion filed.
  • Grounds for challenging motion for U&O.
    • Incorrect amount demanded.
      • Example: Plaintiff is seeking market rent from a subsidized housing resident.
    • Warranty of habitability defense.
      • Example: Plaintiff’s failure to maintain the premises has reduced its value.
    • Plaintiff is asking court to reach ultimate issue in case.
      • Example: Subsidized housing resident who is facing eviction for failing to pay market rent contends that Plaintiff never had grounds to raise her rent, and Plaintiff is asking court to order tenant to pay market rent while case is pending..
  • Sanctions for violating U&O order
Discovery
  • S. Ct. Rules 201-19.
  • Parties are entitled to discovery.
  • Forcible actions are not small claims, and are therefore not subject to the prohibition against conducting discovery in small claims cases.
  • Draft effective interrogatories, requests to produce, and requests to admit.
    • Think about your defense. Seek the specific information you need to support this defense.
    • When client is facing eviction for some violation other than nonpayment of rent, draft a separate interrogatory for each allegation in the termination notice.
      • Example: “With respect to the allegation set forth in your termination notice that on [whatever date, defendant committed violation], please . . . .” 
      • Then ask questions that will elicit all the information you need about the alleged violation.
  • Always ask Plaintiff to identify every witness who will testify on its behalf at trial, and to identify the subject of each witness’s testimony.

Sample Affirmative Defenses

Premature Filing
  • Plaintiff may not file case until day after lease has been terminated. Avdich, 69 Ill. 2d at 9 (suit filed before termination notice expired was premature). 
    • If notice is sent by certified mail, return receipt requested, the notice period does not start to run until the tenant actually receives the notice. Id. at 8-9. 
  • If a public housing resident is facing eviction and entitled to grievance hearing, and she requests the hearing in a timely manner, the lease remains in effect until the grievance process ends. 
    • “When the PHA is required to afford the tenant the opportunity for a hearing under the PHA grievance procedure for a grievance concerning the lease termination, the tenancy shall not terminate (even if any notice to vacate under State or local law has expired) until the time for the tenant to request a grievance hearing has expired, and (if a hearing was timely requested by the tenant) the grievance process has been completed.” 24 C.F.R. § 966.4(l)(3)(iv).
    • Housing Auth. of Danville v. Love, 375 Ill. App. 3d 508, 512 (4th Dist. 2007) (PHA’s forcible action, filed while grievance process was still pending, was premature).
Impermissibly Vague Notice
  • Due process and the regulations governing the federally subsidized housing programs (see below) demand that the termination notice provide the tenant with enough information to enable her to prepare a defense. Moon v. Spring Creek Apts., 11 S.W.3d 427, 433 (Tex. Ct. App. 2000)  (noting that “[t]ermination notices for federally subsidized housing have been found to be insufficient where they contain only one sentence, are framed in vague and conclusory language, or fail to set forth a factual statement to justify termination.”) 
    • In public housing, “[t[he notice of lease termination to the tenant shall state specific grounds for termination.” 24 C.F.R. § 966.4(l)(3)(C)(ii)
    • In the Section 8 Housing Choice Voucher Program, “[t]he owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease.” 24 C.F.R. § 982.310(e)(1)(i)
    • In the Section 8 New Construction, Substantial Rehabilitation, and State Housing Agencies Programs, “[t]he owner must give the family a written notice of any proposed termination of tenancy, stating the grounds.” 24 C.F.R. § 880.607(c)(1)
    • In the Section 8 Moderate Rehabilitation Program, the notice “must . . . [s]tate the reasons for such termination with enough specificity to enable the Family to prepare a defense.” 24 C.F.R. § 882.511(d)(2).   
    • In the Section 8 Loan Management Set Aside Program, the Program for the Disposition of HUD-owned Projects, and the 221(d)(3) BMIR and 236 Programs, “[t[he landlord’s determination to terminate the tenancy shall be in writing and shall . . . state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense.” 24 C.F.R. § 247.4(a).
  • A notice alleging that the tenant violated a lease provision without describing the violation is invalid.
    • Housing Auth. of King v. Saylors, 578 P.2d 76 (Wash. Ct. App. 1978) (notice stating that “you are in violation of your lease in section 6j; The Tenant shall not commit or maintain a nuisance on or about the premises” was insufficient.)
Notice Affords Less Than the Required Number of Days
  • A notice that does not afford the statutorily required number of days is invalid. Hoefler v. Erickson, 331 Ill. App. 577, 583 (1st Dist. 1947). 
  •  The notice need not specify the calendar date on which the tenancy will end if it states that the tenancy will terminate the appropriate number of days after service.
Notice Is Not in the Correct Language
  • Morales v. Golar, 347 N.Y.S.2d 325 (N.Y. Sup. Ct. 1973) (denying PHA’s motion to dismiss petition alleging that notice written in English was insufficient to terminate tenancy of resident who spoke only Spanish.)
  • In CHA cases, “[t]he Notice of Lease Termination will be provided in English, Spanish, or other language as needed.” Admissions and Continued Occupancy Policy (ACOP), Section XIII(C)(4).
Immaterial Violation
Late Rent Payment Excused
  • If a resident of Section 8 project-based development receives public assistance, her rent payment may not be considered late for the purpose of terminating her lease if she tenders the rent due within three days after receiving her assistance. American National Bank & Trust v. Dominick, 154 Ill. App. 3d 275, 279-80 (1st Dist. 1987). 
    • The Dominick court relied on a HUD Illinois Circular Letter dated April 24, 1986, which recognized “that in Illinois payment of public assistance benefits is made on a staggered system under which all recipients . . . do not receive such benefits on the first day of the month.” 
  • Payment may still be considered late for purpose of imposing a late fee. 
  • Only the residents of Section 8 project-based developments can take advantage of this policy.
Waiver
  • If, after learning about the lease violation, the landlord recognizes the existence of resident’s tenancy, the landlord waives the right to evict. Midland Mgmt. v. Helgason, 158 Ill. 2d 98, 102 (1994). 
    • Acceptance of rent that accrued after landlord learned of breach constitutes waiver. Id.
      • Holding money order for unreasonably long time– probably more than one rental period – constitutes acceptance of rent. Compare Midland Mgmt. Co. v. Helgason, 241 Ill. App. 3d 899 (2nd Dist. 1993) (retention for one week does not constitute acceptance), rev'd on other grounds, 158 Ill. 2d 98 (1994), and Day-Luellwitz Lumber Co. v. Serrell, 177 Ill. App. 30 (1st Dist. 1913) (retention for three months constitutes acceptance). 
    • Execution of new lease constitutes waiver. Superior Housing Authority v. Foote, 463 N.W.2d 882 (Wis. Ct. App. 1990) (“Obviously, it is inconsistent for a landlord to claim that a tenant has breached the lease, but then enter into a new lease with the same tenant.”) 
    • Successive termination notices do not constitute waiver if second notice merely updates the first and would not lead a reasonable person to believe that the landlord was waiving his right to rely on the first notice. CHA v. Taylor, 207 Ill. App. 3d 821 (1st Dist. 1990) (second termination notice demanding rent due did not waive landlord’s right to rely on first notice demanding rent). 
      • Second demand for rent might, however, give tenant opportunity to comply with demand and thereby preserve her tenancy. See Taylor, 207 ILL. App. 3d at 826 (distinguishing case from Duran v. Housing Authority of Denver, 761 P. 2d 180 (Colo. 1988), in which a public housing resident tendered all the rent demanded in second notice before the notice expired). 
      • Subsequent notice that does not merely update the first (e.g., notice demanding rent due issued after notice alleging criminal violation) constitutes waiver. 
    • Recertifying a subsidized housing resident (to determine continued financial eligibility for assistance and to calculate tenant’s share of the rent) does not constitute waiver. Burnham Management Co. v. Davis, 302 Ill. App. 3d 263, 270-71 (2nd Dist. 1998). 
    • Acts that landlords are required to perform (e.g., making necessary repairs) do not constitute waiver.
Warranty of Habitability
  • Common law. 
    • In a nonpayment of rent case, the tenant may assert that the landlord’s failure to maintain the premises reduced its value by an amount that exceeds the rent due. Jack Spring v. Little, 50 Ill. 2d 351, 359 (1972). 
  • Local law. 
    • If the plaintiff has failed to properly maintain the premises, the tenant may recover damages “by claim or defense.” RLTO, § 5-12-110(e).
Cure
  • Local law affords tenants the right to cure an alleged violation within no less than ten days after the termination notice is served. RLTO, § 5-12-130(b)
  • When the RLTO applies and the tenant is facing eviction for some violation other than nonpayment of rent, a termination notice that does not inform the tenant of her right to cure is invalid. 
  • Curing criminal violations. 
    • Landlords argue that all crimes are excluded from the realm of curable violations. 
    • Nothing in the RLTO supports this argument. 
    • Although a tenant may not be able to cure her own criminal activity, she should be allowed to cure a household member’s or guest’s crime by barring that person from the premises.
  • The federal one-strike law (discussed in greater detail below) governs the public housing and Section 8 programs and authorizes the eviction of an innocent family for a household member’s or guest’s criminal activity. 
    • Authorities divided on whether it preempts local laws like the RLTO that afford tenants a cure defense: 
    • LAF’s position: 
      • Cure provision does not interfere with goal of one-strike statute, which is to reduce incidence of criminal activities at developments. 
      • Cure provision simply achieves this goal without punishing innocent household members.
Retaliation
  • Local prohibition. 
    • RLTO, § 5-12-150
    • Very expansive definition of protected activity. 
    • If landlord terminates the lease within one year after the tenant engages in protected activity, there arises a rebuttable presumption that the landlord is retaliating against the tenant.
  • Statutory prohibition. 
    • Retaliatory Eviction Act, 765 ILCS 720/1 (“It is declared to be against the public policy of the State for a landlord to terminate or refuse to renew a lease or tenancy of property used as a residence on the ground that the tenant has complained to any governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation.  Any provision in any lease, or any agreement or understanding, purporting to permit the landlord to terminate or refuse to renew a lease or tenancy for such reason is void.”) 
      • Wood v. Wood, 284 Ill. App. 3d 718 (4th Dist. 1996) (stating that “Illinois has never decided the defense is limited to that recognized in the Eviction Act,” and expanding definition of protected activity to include obtaining an order of protection), citing Seidelman v. Kouvavus, 57 Ill. App. 3d 350, 354 (2nd Dist. 1978) (noting the “possibility that circumstances may arise, in future cases, where a landlord's action in seeking to evict a tenant would be so invidiously motivated and would so contravene the public policy of our State that we would not permit our courts to implement the eviction in a forcible entry and detainer proceeding.”).
Landlord Refuses to Grant Reasonable Accommodation
  • Tenant who is disabled and whose disability is directly related to her lease violation may request reasonable accommodation that will allow her to comply with her obligations in the future. 
  • Refusal to grant request for reasonable accommodation constitutes discrimination under the Fair Housing Act.
  • This defense is discussed in greater detail below in a separate section.
Tenant is Victim of, and Facing Eviction for, Incidence of Domestic Violence
  • Amendments to the Violence Against Women Act (VAWA) prohibit PHAs and Section 8 landlords from evicting domestic violence victims for incidents of domestic violence. 
  • Fair Housing Act. Evicting domestic violence victims for incidents of domestic violence may constitute sex discrimination. 
  • Safe Homes Act, 765 ILCS 750
  • Section 9-106.2 of the Forcible Act. 
  • This defense is discussed in greater detail below in a separate section.
Laches
  • “[P]recludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party.” Tully v. State, 143 Ill. 2d 425, 432 (1991). 
  • Defense is germane in forcible actions. Rochelle v. Suski, 206 Ill. App. 3d 497 (2nd Dist. 1990); Worley v. Ehret, 36 Ill. App. 3d 48 (5th Dist. 1976). 
  • No Illinois court has addressed the use of a laches defense in a nonpayment of rent case, but New York courts have. 
    • Marriott v. Shaw, 574 N.Y.S.2d 477 (N.Y. Civ. Ct. 1991) (granting motion for summary judgment based on laches defense because the landlord had slept on his rights, and delay had prejudiced tenant because she was poor and did not have resources to satisfy her large rental debt). 
    • Lemle 58th LLP v. Wolf, 872 N.Y.2d 691 (N.Y. Civ. Ct. 2008) (laches barred landlord from evicting subsidized housing resident for nonpayment of almost $7,000 in rent that had accrued over eight years). 
    • Building Mgmt. Co., Inc. v. Bonifacio, 906 N.Y.S.2d 770 (N.Y. Civ. Ct. 2009) (laches barred owner of rent-stabilized apartment from evicting tenant for nonpayment of more than $20,000 in rent that had accrued over a period of twenty-one months). 
  • LAF case: 
    • Laches barred landlord from evicting Section 8 voucher-holder for nonpayment of more than $13,000 in rent that allegedly accrued over entire length of her five-year tenancy. Landlord claimed she never once paid rent. Tenant denied landlord’s allegation and, because she always paid her share of the rent (about $200 per month) in cash and had no receipts, she also asserted laches as defense in the alternative. Client then filed motion for summary judgment based on laches defense. Court granted motion, noting that plaintiff was entitled to no more than three months’ rent and would have to file new case based on notice demanding just that amount. Landlord never re-filed.
Consumer Fraud and Deceptive Practices Act (CFA)
  • 815 ILCS 505/1 et seq.
  • CFA is “a regulatory and remedial statute intended to protect consumers [against] unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17 (2002). 
  • CFA covers residential lease agreements, and residential tenants are “consumers” as that term is defined in the Act. Anast v. Commonwealth Apts., 956 F. Supp. 792, 802 (N.D. Ill. 1997) (“Courts have applied the Consumer Fraud Act to the landlord-tenant relationship.”), citing Carter v. Mueller, 120 Ill. App. 3d 314, 322 (1st Dist. 1983). 
  • A consumer can establish a violation of the prohibition against unfair conduct without establishing that the conduct was deceptive. Robinson, 201 Ill. 2d at 412. 
    • Courts consider three criteria to determine whether an act is unfair: 
      • Does it offend public policy? 
      • Is it immoral, unethical, oppressive, or unscrupulous? 
      • Does it cause substantial injury to the consumer? Id. at 413.
    • “A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Id.
  • Example from LAF case: 
    • Section 8 resident who called police to report that her guest was using cocaine in her apartment faced eviction for guest’s crime. LAF argued that evicting people for reporting crimes violates public policy, evicting tenant would have caused serious harm because her rental assistance ran with her unit, and eviction therefore violated the CFA. Owner dismissed case with prejudice in exchange for LAF’s dismissing CFA counterclaim.
Equity
  • An equitable defense may be asserted on behalf of a tenant who has no legal defense. 
    • “A court may grant relief against the termination of a lease by forfeiture when equitable circumstances warrant such relief.”  In re Gullys Inc., 8 B.R. 556, 557 (N.D. Ill. 1981), citing, 24 Illinois Law and Practice, Landlord and Tenant, § 242.
    • “The rule is well established that equity will relieve a tenant from an attempted forfeiture for nonpayment of rent on a fixed date.  ‘That a court of equity, even in the absence of special circumstances of fraud, accident or mistake, may relieve against a forfeiture incurred by a breach of the covenant to pay rent, on the payment or tender of all arrears of rent and interest by a defaulting lessee, is elementary.’” Famous Permanent Wave Shops, Inc. v. Smith, 302 Ill. App. 178, 183-84 (1st Dist. 1939).
    • “The source of the right in the landlord to declare a forfeiture is not important.  It is of the nature of equitable relief that it may be granted to obviate the effect of an act which the other party has a right tom perform but which he in equity and good conscience should not be allowed to benefit.” Illinois Merchants' Trust Co. v. Harvey, 335 Ill. 284, 294 (1929).
  • Use equity when allowing landlord to enforce legal right to possession would shock the conscience. 
  • Examples from LAF cases: 
    • Equity prevented PHA from evicting an elderly and disabled public housing resident who tendered one month’s rent the day after the termination notice demanding the rent expired. 
    • Equity prevented PHA from evicting working mother of seven who was arrested for, and pled guilty to, possession of one marijuana cigarette.

Trial

  • Juries and jury trial practice are discussed below in a separate section.
  • The plaintiff bears the burden of proving his right to possession of the premises.
    •  Even though eviction actions are summary proceedings, "an eviction trial, like any other trial, should be an orderly procedure wherein the plaintiff presents evidence of possession and compliance with the necessary procedural steps for notice of termination, filing suit and summons." Eckel v. MacNeal, 256 Ill. App. 3d 292, 298 (1st Dist. 1993). 
  • Necessary elements of Plaintiff’s prima facie case: 
    • Plaintiff owns premises.
    • Defendant is in possession of premises.
    • Defendant violated lease or held-over after lease expired.
    • Plaintiff served valid termination notice (assuming notice was required).
    • Defendant owed rent (if joint action).

Post-Trial Motions

In Jury Cases
  • 735 ILCS 5/2-1202.
  • Motion for a directed verdict.
    • If, during the trial, the court denied or reserved ruling on a motion for a directed verdict, the motion must be renewed post-trial. 
  • Other motions:
    • For a judgment notwithstanding the verdict.
    • For a new trial.
  • All post-trial relief must be sought in a single motion.
  • A post-trial motion filed within 30 days after entry of the judgment stays enforcement of the judgment.
  • A timely filed post-trial motion also extends the deadline for filing an appeal, but only once.
In Non-Jury Cases
  • 735 ILCS 5/2-1202.
  • Motion for a directed verdict.
    • If, during the trial, the court denied or reserved ruling on a motion for a directed verdict, the motion must be renewed post-trial. 
  • Other motions:
    • For a judgment notwithstanding the verdict.
    • For a new trial.
  • All post-trial relief must be sought in a single motion.
  • A post-trial motion filed within 30 days after entry of the judgment stays enforcement of the judgment.
  • A timely filed post-trial motion also extends the deadline for filing an appeal, but only once.

Vacating Judgments

  • Within 30 days. 735 ILCS 5/2-1301.
    • Motion stays enforcement of the judgment until the hearing on the motion.
    • Remember to deliver copy to Sheriff.
  • After 30 days. 735 ILCS 5/2-1401.
    • Must be supported by affidavit. 735 ILCS 5/2-1401(b).
    • Must show due diligence. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220 (1986).
    • Must set forth meritorious defense(s). Id.
    • Motion will not stay enforcement of the order for possession. 735 ILCS 5/2-1401(d).
    • Apply for “a certificate . . . that there is probable cause for staying further proceedings until the order of the court on the motion.” 735 ILCS 5/2-1305.
    • Motion may not be filed more than two years after judgment. 735 ILCS 5/2-1401(c).

Vacating an "Agreed" Order Awarding Plaintiff Possession of the Premises

  • Landlords sometimes use agreed orders to take advantage of unrepresented tenants.
    • Long v. Shorebank Dev. Corp., 182 F.3d 548 (7th Cir. 1999) (tenant sued owner of Section 8 Project-Based development and its attorneys for unlawfully evicting her by filing complaint to collect rent that it knew tenant did not owe, using fraud to keep her from going to court to contest the baseless eviction complaint, and knowingly misrepresenting to the court that tenant did not dispute the eviction.).
  • Grounds for vacating agreed order.
    • Agreement may be vacated only upon a showing that meets a broad and equitable standard that may, depending on the circumstances, be met by a showing of one or several of the types of challenges enumerated in our case law. In re marriage of Rolseth, 907 N.E.2d 897, 900-01 (2nd Dist. 2009).
    • Challenges enumerated in case law:
      • Fraudulent misrepresentation.
      • Coercion.
      • Incompetence of one of the parties.
      • Gross disparity in parties’ bargaining positions (the challenge upon which LAF most often relies).
        • Only Plaintiff represented by counsel;
        • Defendant unfamiliar with courtroom procedures;
        • Agreement overwhelmingly favored Plaintiff and did not reflect compromising of claims.
      • Newly discovered evidence.
      • Agreement contrary to public policy.
  • No Illinois case specifically addresses propriety of vacating agreed order in forcible action, but a case from New Jersey -- Community Realty Mgmt., Inc., v. Harris, 714 A.2d 282 (N.J. 1998) – recognizes the:
    • Inherent imbalance between represented parties and pro se litigants in eviction actions;
    • Serious problem this imbalance poses in cases involving subsidized housing residents;
    • Difficulty of determining whether a landlord’s attorney is properly informing a pro se defendant of her rights during pre-trial negotiations; and
    • Propriety of considering equitable factors (including the value of the subsidized tenancy, the fact that the tenant was representing herself when she entered the consent agreement, and the strength of her defenses to the original action) when deciding whether to vacate an agreed order.

Vacating a Judgment for Posession on Grounds That Plaintiff Reinstated the Tenancy

  • After obtaining a judgment for possession, a Plaintiff reinstates tenancy if he:
    • Signs new lease agreement with the defendant; or
    • Accepts rent for a period subsequent to entry of the judgment.
      • If Plaintiff obtained judgment for rent due in addition to judgment for possession, he does not reinstate tenancy unless he accepts an amount that exceeds this money judgment.

Responding to a Motion to Extend the Period for Enforcing the Judgment for Posession

  • 735 ILCS 5/9-117.
  • If judgment for possession is not enforced within 120 days, Plaintiff must file motion to extend the time for enforcement and send notice of motion to the defendant.
  • Potential responses to motion:
    • Post-judgment agreement between parties;
    • Violation underlying initial case has been resolved or forgiven;
    • Other legal or equitable reason (e.g., Plaintiff accepted rent for period subsequent to entry of judgment).

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Tenants in Foreclosed Buildings

The Problem:

  • With the unprecedented number of foreclosures across the country, it became increasingly evident that homeowners were not the only victims of the downturn in the economy. Tenants residing in residential properties were also victims of the foreclosure crisis. All too often, they were caught unaware that the residential property in which they resided was being foreclosed, and they were given little notice of the need to vacate the property.

Three Solutions:

Federal Law
  • Protecting Tenants at Foreclosure Act of 2009 (PTFA). Pub. L. 111-22, Div. A. Title VII.
  • Requires that tenants residing in foreclosed residential properties be provided notice to vacate at least 90 days in advance of the date by which the immediate successor, generally the purchaser, seeks to have the tenants vacate the property.
  • Except where the purchaser will occupy the property as the primary residence, the term of any bona fide lease also remains in effect.
  • The law will sunset on December 31, 2014. 
State Law
  • 735 ILCS 5/15-1701(h)(4).
  • Purchaser may not file a forcible action against the occupant of the mortgaged real estate “until 90 days after a notice of intent to file the action has been properly served upon the occupant.”
  • Purchaser may not file a supplemental petition for succession against a bona fide lease holder. 
  • Purchaser may not file a forcible action against a bona fide lease holder until 90 days prior to the end of the lease, up to one year. 
  • A "bona fide lease holder" is a person who does not own the property, or are the child, spouse, or parent of the owner; the lease was made under fair terms; and rent is not much lower than fair market value, unless it is reduced or subsidized by federal, state, or local law. 
  • Mandatory sealing of court file.
    • 735 ILCS 5/9-121(c).
    • The court file relating to a forcible entry and detainer action brought against a tenant who would have lawful possession of the premises but for the foreclosure on the property shall be sealed pursuant to Section 15-1701.
Local Law
  • RLTO, § 5-12-095.
    • Prospective tenants must be notified in writing that the landlord has been named in a foreclosure action.
    • Within 7 days after receiving a foreclosure complaint, the landlord must notify all current tenants about the action.
  • RLTO, § 5-12-080(e).
    • Successor landlord is liable for tenant’s security deposit.
  • RLTO, § 5-12-030(h).
    • Sets forth definition of “successor landlord.”
    • A court-appointed receiver is not a successor landlord.
      • Housing courts sometimes appoint receivers to collect rents from the tenants of a multi-unit building and use the money to restore and maintain utility services, and/or to make necessary repairs.
  • KCRO §5-15-40
    • Within 21 days of ownership, the new owner shall make a good faith-effort to ascertain the identities and addresses of all tenants of the rental units in the foreclosed rental property and notify, in writing, all known tenants of such rental units that, under certain circumstances, the tenant may be eligible for relocation assistance. The notice shall be given in English, Spanish, Polish and Chinese.
  • KCRO §5-14-050 For a "qualified tenant": 
  • KCRO 15-14-020 Defines "qualified tenant":
    • A tenant in a foreclosed rental property on the day that a person becomes the owner of that property; and
    • Is a bona fide lease holder

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Public Housing

Overview

  • Owned and operated by public housing authorities (PHAs).
  • Subsidized and regulated by HUD.
  • PHAs that own public housing in Cook County:
  • CHA properties are managed by private property management companies (e.g., Related Management, U.S. Residential Mgmt. and Dev. Corp.) under contract to CHA.
  • Rental assistance runs with unit.
    • Tenant loses assistance if she moves, unless she is relocated to another public housing unit.
    • Tenant loses assistance if she gets evicted.
  • CHA properties:
    • Traditional public housing
    • Senior properties
    • Scattered Site Properties
    • Mixed Income Properties (discussed in more detail below in section on CHA’s Plan for Transformation)

Governing Statute and Regulations

Other Authorities

  • Public Housing Occupancy Guidebook.
    • The guidebook is designed to serve as a reference tool to assist public housing staff and HUD with a range of issues related to public housing occupancy, from application and rent calculations through ongoing occupancy to lease termination.
    • Access a complete copy at www.hud.gov.
  • PHAs must establish and adopt written admissions policies. 24 C.F.R. § 960.202(a).
    • CHA's policy is set forth in its Admissions and Continued Occupancy Plan (ACOP).

Admission

  • 24 C.F.R. Parts 5 and 960, Subpart B govern the admissions policies and procedures.
  • Standards for PHA tenant selection criteria – 24 C.F.R. §  960.205.
    • Applicant’s history of meting financial obligations;
      • Should this be relevant?
      • Any person who is financially eligible for subsidized housing will, almost by definition, have bad credit.
      • Failure to pay market rent in the past has no bearing on applicant's ability to pay rent that is equal to a percentage of household income.
    • Record of disturbing neighbors, causing property damage, or living or housekeeping habits that might adversely affect neighbors;
    • History of criminal activity -- 24 C.F.R. § 960.204.
  • Mandatory denials:
    • Household member was evicted from federally-assisted housing for drug-related criminal activity within the past three years.
      • Exceptions:
        • Evicted household member has completed PHA-approved rehabilitation program.
        • Evicted household member has died or is in prison.
      • PHA determines that household member is currently using illegal drugs.
      • PHA has “reasonable cause to believe” that household member’s pattern of illegal use of a drug may threaten other residents’ health, safety, or right to peaceful enjoyment of the premises.
      • Household member has been convicted of manufacturing or producing methamphetamines on the premises of federally assisted housing.
      • Household member is subject to lifetime sex registration requirement under a State registration program.
  • Arrest records
    • An arrest record, by itself, is not a sufficient basis for denying admission. Landers v. CHA, 936 N.E.2d 735 (1st Dist. 2010).
  • Mitigating circumstances
    • When PHA receives unfavorable information regarding applicant, “consideration shall be given to the time, nature, and extent of the applicant's conduct (including the seriousness of the offense).” 24 C.F.R. § 960.205(d).
    • PHA may also consider evidence of rehabilitation, and the family’s “willingness to participate in social service or other appropriate counseling service programs and the availability of such programs.” Id.
  • Challenging denials
    • An applicant who is denied admission to the program may request an informal hearing. 24 C.F.R. § 960.208.(a).
    • CHA calls this a "mitigation hearing."

Community Service Requirement (CSR)

  • 24 C.F.R. Part 960, Subpart F.
  • All public housing residents who do not qualify for one of the exemptions listed below must “contribute 8 hours per month of community service” or participate in an economic self-sufficiency program for 8 hours a month. 24 C.F.R. § 960.603(a).
  • Failure to comply with this requirement constitutes grounds for non-renewal of the tenancy at the end of a lease term, but not for termination of the lease during the lease term. 24 C.F.R. § 960.603(b).
  • Exempt individuals:
    • 62 years or older;
    • Blind or disabled (as defined under the Social Security Act);
    • Primary caretaker for blind or disabled person;
    • Engaged in work activities;
    • Meets a welfare program’s requirements for being exempted from having to engage in a work activity; or
    • Is a member of a family receiving benefits under any welfare program and has not been found to be in noncompliance with the program’s requirements.

Rent

Income-Based Rent
  • Equal to 30% of the family’s adjusted gross income or 10% of its income, whichever is higher. 24 C.F.R. §§ 960.253 and 5.628.
  • If the family receives a utility allowance, the amount of that allowance is deducted from the tenant’s share of the rent. 24 C.F.R. §§ 960.253.
  • If the utility allowance exceeds the family’s share of the rent, the PHA must send the excess amount directly to the tenant or to the utility company on the tenant’s behalf. Id.
Flat Rent
  • Equal to the market value of the premises.
  • No utility allowance.
  • “The flat rent is designed to encourage self-sufficiency and to avoid creating disincentives for continued residency by families who are attempting to become economically self-sufficient.”
    • “A family that is paying a flat rent may at any time request a switch to payment of income-based rent (before the next annual option to select the type of rent) if the family is unable to pay flat rent because of financial hardship. The PHA must adopt written policies for determining when payment of flat rent is a financial hardship for the family.” 24 C.F.R. § 960.253(f).
Minimum Rent
  • 24 C.F.R. § 5.630.
  • The PHA can set a minimum monthly rent between $0 and $50.
  • CHA has set a higher minimum rent ($75) because of its authority under the Moving to Work Program (described more fully below in the section on CHA’s Plan for Transformation).
Hardship Exemption
  • 24 C.F.R. § 5.630(b).
  • PHA must grant the family a financial hardship exemption to the minimum rent requirement if:
    • The family is no longer eligible for, or is awaiting an eligibility determination on an application for, a federal or state or local assistance program; or
    • The family will be evicted because of its inability to pay the minimum rent; or
    • The family’s income decreased due to changed circumstances (e.g., loss of employment); or
    • There was a death in the family.
Earned Income Disregard (EID)
  • 24 C.F.R. § 960.255.
  • When calculating the family’s share of the rent, PHA must disregard for the first 12 months an increase in income due to employment.
  • During the next 12 months, the PHA must disregard 50% of this income.
  • EID applies to:
    • Family members who were unemployed for at least one year;
    • Family members participating in a self-sufficiency or other job-training program; and
    • Families who were receiving welfare within the past six months.
Welfare Sanctions
  • 24 C.F.R. § 5.615.
  • PHA will not reduce family’s rent if the household income decreased because the family:
    • Engaged in welfare fraud; or
    • Refused or failed to comply with economic self-sufficiency program or work activity requirements.

Annual and Interim Re-Determinations

  • 24 C.F.R. § 960.257.
  • Every year the family must provide the PHA with verification of its household size and income.
  • Between annual redeterminations, the family must report an increase in income or change in household size.
  • Between annual redeterminations, the family may report a decrease in income.

Lease Agreement

  • 24 C.F.R. § 966.4.
  • Endless lease
    • The lease automatically renews itself at the end of every term unless it is terminated for good cause. 24 C.F.R. § 966.4(a)(2).
  • CHA's lease
    • Two special provisions in agreements governing CHA’s traditional properties. 
      • “Knew or should have known" defense. Section 16(f).
        • A tenant who is facing eviction for a household member’s or guest’s crime may assert as an affirmative defense that she did not know or have any reason to know the crime would occur.
        • She must establish this defense by a preponderance of the evidence. 
        • This provision does not appear in CHA leases used in the “mixed-income” communities.
      • CHA’s work requirement. Section 21.
        • Applies to all families residing in traditional public housing.
        • Work requirement not authorized under the Housing Act of 1937, so CHA used its authority under the Moving to Work program (see below in the section on CHA’s Plan for Transformation) to seek a statutory “waiver” from HUD.
        • Every adult must work 20 hours a week unless she qualifies for an exemption or Safe Harbor eligibility.
        • Exemptions:
          • 55 years of age or older;
          • Blind or disabled (as defined under the Social Security Act);
          • Primary caretaker for blind or disabled person;
          • Retired and receiving a retirement annuity or pension;
          • Single parent serving as the primary caretaker for children age one or younger; and
          • Receiving TANF and have an active Responsibility and Services Plan.
        • Safe Harbor:
          • If a non-exempt adult cannot comply with the work requirement despite her best efforts, she may request “safe harbor.”
          • Must undergo interim “safe harbor” re-examinations every 90 days.
        • Any non-exempt adult who does not comply with the work requirement is subject to eviction.
        • Termination decisions are subject to the grievance procedure (described more fully below).
        • CHA must secure permission from an independent hearing officer before proceeding with the lease termination.

Terminating the Lease

Grounds
  • 24 C.F.R. § 966.4(l).
  • Grounds
    • Serious or repeated violation of material terms of the lease;
    • Nonpayment of rent; 
      • Tenant is entitled to 14-day notice. 
      • Notice must advise tenant of her right to request a grievance hearing before the notice expires. 
    • Violation of tenant obligations
    • Financial ineligibility for public housing
    • Other good cause, including:
      • Criminal activity (see below) or alcohol abuse; 
      • Discovery, after admission into the program, of facts that make the tenant ineligible for public housing; 
    • Making material false statements on application for housing or during recertification process. 
    • Failure to comply with Community Service Requirement.
Terminations for Criminal Activity
  • Grounds. 24 C.F.R. § 966.4(l)(5).
    • Methamphetamine production;
    • Drug-related criminal activity on or off the premises; 
    • Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents, management, or people living in the immediate vicinity;
    • Fleeing to avoid prosecution, custody or confinement for a felony.
  • Strict liability for crimes committed by household members or guests. 
    • The Supreme Court unanimously held that the Anti-Drug Abuse Act – 42 U.S.C. § 1437d(l)(6) – unambiguously requires lease terms that vest PHAs with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity. HUD v. Rucker, 535 U.S. 125 (2002).
    • Nevertheless, “[t]he statute does not require the eviction of any tenant.” Id. at 133-34. PHAs should consider mitigating circumstances.
    • In a letter dated June 6, 2002 and directed to all public housing directors, Assistant HUD Secretary Michael Liu wrote:
      • “PHAs are not required to evict an entire household - or, for that matter, anyone - every time a violation of the lease clause occurs.  Therefore, after Rucker, PHAs remain free, as they deem appropriate, to consider a wide range of factors in deciding whether, and whom, to evict as a consequence of such a lease violation. Those factors include, among many other things, the seriousness of the violation, the effect that eviction of the entire household would have on household members not involved in the criminal activity, and the willingness of the head of household to remove the wrongdoing household member from the lease as a condition for continued occupancy. The Secretary and I urge you to consider such factors and to balance them against the competing policy interests that support the eviction of the entire household. Like Congress and the Supreme Court, HUD recognizes that PHAs are in the best position to determine what lease enforcement policy will most appropriately serve the statutory interest of protecting the welfare of the entire tenant population. I know that you will continue to act in a manner that protects that general welfare, while giving consideration - when you deem it appropriate - to the interests of individuals who share a household with the wrongdoer, but were otherwise unconnected with the wrongdoing.”
    • CHA leases governing dwelling units in family properties (as opposed to mixed-income communities) afford residents the right to raise “innocent tenant” defense.
      • Provision states that tenant may assert as an affirmative defense that she did not know nor have any reason to know that the crime would occur.
      • Must establish defense by preponderance of the evidence.
      • This lease provision preceded Rucker. LAF convinced CHA to exercise its discretion by retaining provision post-Rucker.
      • In 2011, CHA proposed elimination of lease provision, but LAF helped mobilize tenants and led a successful campaign to prevent CHA from exercising undisputed legal right to do this. 
  • Evidence of crime. 24 C.F.R. § 966.4(l)(5)(iii)(A).
    • Neither conviction nor even arrest is necessary. 
    • State’s failure to prove guilt beyond a reasonable doubt in a criminal case does not preclude PHA from establishing guilt in an eviction action by preponderance of the evidence.
  • Consideration of circumstances. 24 C.F.R. § 966.4(l)(5)(vii)(B).
    • “In a manner consistent with such policies, procedures and practices, the PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action.” 24 C.F.R. § 966.4(l)(5)(vii)(B).
    • PHA’s failure to consider mitigating circumstances constitutes an abuse of discretion. Newark Housing Auth. v. Martinez-Vega, 34 A.3d 1271 (N.J. Sup. Ct. Law Div. 2012) (mitigating factors set forth in PHA’s ACOP weighed heavily against evicting non-culpable tenants).
  • Alternatives to eviction.
    • Bar the offender. 24 C.F.R. § 966.4(l)(5)(vii)(C).
      • “The PHA may require a 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.”
    • In drug abuse cases, PHA may consider evidence of rehabilitation. 24 C.F.R. § 966.4(l)(5)(vii)(D).
      • “In determining whether to terminate tenancy for illegal drug use or a pattern of illegal drug use by a household member who is no longer engaging in such use, or for abuse or a pattern of abuse of alcohol by a household member who is no longer engaging in such abuse, the PHA may 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 (42 U.S.C. 13662). For this purpose, the PHA may 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.” 24 C.F.R. § 966.4(l)(5)(vii)(D).

Grievance Rights

Overview
  • PHA must adopt written grievance procedure. 24 C.F.R. § 966.52(a).
  • Grievance is defined to mean “any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant's lease or PHA regulations which adversely affect the individual tenant's rights, duties, welfare or status.” 24 C.F.R. § 966.53(a).
Informal Settlement
  • 24 C.F.R. § 966.54.
  • Essentially a meeting with the PHA’s property manager.
  • PHA must prepare written summary of the meeting that sets forth the date of meeting, identifies all participants, describes the nature of the grievance, explains the proposed disposition, and sets forth the procedure for requesting a hearing if the tenant is not satisfied.
Hearing
In the Context of an Eviction
  • Tenant facing eviction may request grievance hearing unless she is facing eviction for:
    • Criminal activity that threatens managements’ or residents’ health, safety, or right to peaceful enjoyment;
    • Drug-related criminal activity; or
    • Crime that results in a felony conviction. 24 C.F.R. § 966.51(2)(i).
  • If the tenant submits a timely request for a grievance hearing, the lease remains in effect until the grievance process is completed. 24 C.FR. § 966.4(l)(3)(iv).
  • If the hearing officer issues a written decision upholding the termination, that merely gives the PHA the right to initiate a forcible action.
  • The tenant retains her right to raise any and all germane defenses in the forcible action. She waives nothing by exercising her rights under the grievance procedure. 24 C.F.R. § 966.57(c).

CHA's Plan for Transformation

Moving to Work (MTW) Demonstration Program
  • Section 204, Public Law 104-34; 42 U.S.C. 1437f.
  • In February 2000, HUD granted CHA’s application to participate in the MTW Program, which authorizes CHA to waive certain requirements imposed by the Housing Act of 1937.
    • CHA may now impose lease provisions that are not authorized by federal regulations.
    • These additional provisions, however, may not:
      • Violate state or local law;
      • Permit no-cause evictions; or
      • Abolish the grievance process.
Demolition and Redevelopment
  • By 2018, CHA must construct or substantially renovate 25,000 public housing units.
  • More than 22,000 units will be demolished.
  • CHA’s entire population of 25,000 families will be relocated at least twice during the transformation process.
Relocation Rights Contract
  • Every lease-compliant family residing in a CHA unit as of 10/1/99 has a right to return to a newly constructed or rehabilitated unit after redevelopment is completed.
  • CHA may establish “property specific requirements” for its mixed-income communities (see below).
    • These “property specific requirements” go beyond the requirements authorized by federal law.
    • Families have at least one year after moving into the mixed-income communities to meet these requirements.
  • CHA may impose additional lease requirements (e.g., the work requirement set forth in § 21 of the lease for traditional properties) that go beyond the requirements set forth in the applicable federal regulations.
    • A family may not be evicted for complying with these additional requirements unless:
      • CHA files a formal grievance with an independent hearing officer; and
      • The hearing officer finds that the family failed to make good faith efforts to comply.
  • Families receive at least 180 days advance written notice of relocation.
  • Families receive at least 120 days advance written notice of building consolidation.
  • Relocation options:
    • Temporary Section 8 Voucher.
      • Preserves right to return.
    • Move into non-rehabilitated public housing unit.
      • Preserves right to return.
    • Permanent Section 8 Voucher.
      • No right to return.
Mixed-Income Communities
  • CHA is converting many of its developments into mixed-income communities where no more than a third of the residents are public housing families.
  • CHA may establish “property specific requirements” for these communities.
  • Decisions to deny a public housing family admission to a mixed-income community are subject to the grievance procedures.
  • Each mixed-income community has its own lease, which may differ from the lease used in traditional properties.

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Section 8 Housing Choice Voucher (HCV) Program

Overview

  • Tenant-based rental assistance program.
  • Administered by Public Housing Agencies (PHAs).
  • PHA issues a voucher to an eligible family (defined to include single individuals).
  • Before voucher term expires, family locates housing in private market. 
  • PHA inspects unit to ensure compliance with Housing Quality Standards (HQS) and negotiates reasonable rent with the owner.
  • Family then signs lease agreement with owner, and owner signs Housing Assistance Payments (HAP) contract with PHA.
  • Family pays reduced rent equal to percentage of income, and PHA pays balance by sending owner HAPs equal to the difference between the total rent and the family’s contribution.
  • Lease may be terminated by owner or family.
    • Provided family has not committed a serious violation of the lease or breached its program obligations, the family may move with continued assistance to another unit.
  • HAP Contract may be terminated by PHA.
  • Family’s assistance may be terminated only by PHA.

Governing Statute and Regulations

Housing Choice Voucher Program Guidebook – 7420.10g

  • The purpose of this guidebook is to advise PHAs regarding the administration of the tenant-based subsidy program. It includes an historical review of the program and discusses program requirements in detail.
  • Access a copy at www.hud.gov.
  • Table of Contents (by chapters):
    • Introduction to the Guidebook.
    • Expanding Housing Opportunities and Mobility.
    • Program Plans.
    • Waiting List and Tenant Selection.
    • Eligibility and Denial of Assistance.
    • Calculating Rent and HAP Payments.
    • Payment Standards.
    • Housing Search and Leasing.
    • Rent Reasonableness.
    • Housing Quality Standards.
    • Housing Assistance Payments (HAP) Contracts.
    • Reexaminations.
    • Portability.
    • Conversion of Certificates and Vouchers to
    • Terminations of Assistance and HAP Contracts
    • Informal Reviews and Hearings
    • Special Housing Types
    • Allowances for Utilities and Other Services
    • HUD Reporting Requirements
    • Financial Management
    • Program Staffing
    • Program Integrity
    • Family Self-Sufficiency
    • Utilization

Cook County PHAs

  • Chicago Housing Authority (CHA).
  • Housing Authority of Cook County (HACC).
  • Oak Park Housing Authority.
  • Park Forest Housing Authority.
  • Cicero Housing Authority.
  • Maywood Housing Authority.
    • As reported in the Chicago Sun Times on July 27, 2011: Former Maywood Housing Authority Chief Charged With Stealing $400k.  Gwendolyn Robinson, the former head of the Maywood Housing Authority, has been indicted on theft charges for allegedly funneling rent money intended for poor people toward her own suburban mortgage. Robinson, 49, stole about $404,655 between July 2006 and November 2009 while serving as the agency’s executive director, Attorney General’s office spokeswoman Maura Possley said. A Cook County grand jury returned an indictment against Robinson on Tuesday, Possley said. The money Robinson took would have paid rent for poor people, Possley said. But Robinson funneled people’s housing vouchers into a separate hidden account she used to pay the mortgage on her own Elmhurst home. Public records show she bought the 2,900-square-foot home for $655,000 in July 2006.  Robinson left the agency in December 2009 after working there for 10 years.”

Administrative Plans

  • PHA must adopt an administrative plan that establishes local policies for administration of the HCVP in accordance with HUD requirements. 24 C.F.R. § 982.54.

Admission

  • 24 C.F.R. Part 982, Subpart E.
  • Waiting lists – 24 C.F.R. § 982.204.
    • CHA’s waiting list is closed.
    • PHAs may establish local preferences.
      • CHA established a local preference for the plaintiff class in Latinos United v. CHA, 94 C 1229.
  • Special admission – 24 C.F.R. § 982.203(a).
    • HUD awards PHAs funding that is targeted for families living in specified units.
    • Examples:
      • A family displaced because of demolition or disposition of a public housing project;
      • A family residing in a multifamily rental housing project when HUD sells, forecloses or demolishes the project; or
      • A family residing in a project covered by a project-based Section 8 HAP contract, at or near the end of the HAP contract term.
  • Mandatory denials.
    • Within past three years, the household member has been evicted from federally-subsidized housing for drug-related criminal activity.
    • Exceptions:
      • The household member who committed the crime has completed a rehabilitation program; or
      • That household member no longer poses a threat (e.g., he has died or is imprisoned).
  • Permissive denials.
    • Grounds:
      • Drug-related criminal activity.
      • Violent criminal activity.
      • Other criminal activity that threatens management or the other residents’ health, safety, or right to peaceful enjoyment of the premises.
    • PHA may establish period of time prior to admission during which any household member’s commission of prohibited activity would warrant denial of assistance.
    • PHA may reconsider denials.
  • Informal reviews.
    • Applicants have right to an informal review (see below) to challenge a PHA’s decision to deny admission to the program.
  • Property interest.

Vouchers

Initial Term
Moving with Continued Assistance
  • When a family wants to move to another unit, the PHA issues another voucher (commonly called “moving papers”). 24 C.F.R. § 982.302.
  • The family may move with continued assistance when:
    • The lease has been terminated for one of the following reasons:
      • PHA has terminated the HAP contract because the owner has breached its terms; or
      • The owner and family have agreed to end the lease agreement.
    • The owner has terminated the lease agreement;
    • The tenant has terminated the lease agreement (assuming the tenant had the right to take this action);
    • A member of the household is a victim of domestic violence or stalking, and she needs to move to protect her safety. 24 C.F.R. § 982.314.
  • The PHA will not issue moving papers to family that has allegedly violated its program obligations. Instead, the PHA will move to terminate the family’s assistance. 24 C.F.R. § 314(e)(e)(2).
Portability
  • A family may move outside the jurisdiction of the initial PHA and “port-out” to another jurisdiction anywhere in the United States.
  • The procedures for transferring to the receiving PHA the responsibility for administering the family’s assistance are set forth at 24 C.F.R. § 982.355.
Family Break-Up
  • 24 C.F.R. § 982.315.
  • The PHA’s administrative plan sets forth the policy for deciding who gets to keep the voucher when the family breaks up.
  • If the break-up is the result of domestic violence, the PHA must ensure that the victim retains assistance.
  • If there is a court order (e.g., a judgment for dissolution of marriage) specifying who should get the assistance, the PHA is bound by that judgment.

Preventing Discrimination Against Voucher-Holders

The Problem
  • As public housing developments get demolished, and as private owners opt out of the Section 8 project-based programs once their contracts with HUD expire (see below), the HCV Program is becoming one of the primary vehicles for providing low-income tenants with affordable housing. 
  • This program works only if tenants are able to find enough suitable housing in the private market.
  • Many private landlords do not want to rent to Section 8 voucher-holders because of preconceived and inaccurate notions about the poor.
The Solution
  • Laws that prohibit discrimination against Section 8 voucher-holders.
  • The Chicago Fair Housing Ordinance prohibits “source of income” discrimination. Chicago Municipal Code, Title 5, Chapter 8, § 030.
    • Section 8 rental assistance is a “source of income” as that term is used in the Fair Housing Ordinance. Godinez v. Sullivan-Lackey, 352 Ill. App. 3d 87 (1st Dist. 2004).
    • Enforce the local prohibition against “source of income” discrimination by filing a complaint with the Chicago Commission on Human Relations.
  • The governing federal regulations do not preempt state or local laws prohibiting discrimination against voucher-holders. 24 C.F.R. § 982.53(d) (“Nothing in part 982 is intended to pre-empt operation of State and local laws that prohibit discrimination against a Section 8 voucher-holder because of status as a Section 8 voucher-holder.”).

Selecting a Unit

The Lease Agreement

HUD-Approved Tenancy Addendum

  • This addendum is Part C of the Housing Assistance Payments Contract, discussed below in more detail.
  • Addendum provisions:
    • PHA calculates tenant’s share of the rent (“rent to owner”). ¶ 4(a).
    • The owner may not charge or accept, from the family or any other source, more than the rent to the owner. ¶ 5(e).
      • Owners who are disappointed with a PHA’s rent reasonableness determination often demand that the tenant agree to make side-payments.
      • Tenants often agree to make side payments because they’re scared and unaware of their rights.
      • Making a side-payment constitutes a technical violation of the tenant’s program obligations, but it should not warrant the termination of assistance because no one is harmed by the side agreement but the tenant.
      • Nevertheless, in at least one case, a court upheld a PHA’s decision to terminate on these grounds, finding that the tenant’s violation harmed the integrity of the Voucher program.  Dowling v. Bangor Housing Auth.,  910 A.2d 376 (Maine 2006) (Tenant's participation in improper side agreement with landlord for a period of eight months and her failure to disclose the agreement to the housing authority, with knowledge that such action violated her obligations for Section 8 rental subsidy eligibility, was sufficiently serious to merit termination of the subsidy.).
    • The owner must immediately return to the tenant any excess rent payment. ¶ 5(f).
    • The owner must maintain the premises in compliance with Housing Quality Standards (HQS). ¶ 7(a)(1).
    • VAWA protections for victims of domestic violence. ¶ 8(e).
  • Enforcing addendum provisions against the owner. 
    • “The tenant shall have the right to enforce the tenancy addendum against the owner, and the terms of the tenancy addendum shall prevail over any other provisions of the lease.” 24 C.F.R. § 982.308(f)(2).
    • This is especially important in light of the fact that the family is not a third-party beneficiary to the HAP Contract between the PHA and the owner, and has no right to enforce HAP contract provisions. 24 C.F.R. § 982.456(b)(1).

Lease Termination

By the Family
  • During the lease term.
  • At the end of the initial or any successive lease term.
    • Family may terminate without good cause.
  • “If the family terminates the lease on notice to the owner, the family must give the PHA a copy of the notice at the same time.” 24 C.F.R. § 982.314(d)(i).
  • “The family must notify the PHA and the owner before the family moves out of the unit. Failure to do this is a breach of family obligations under the program.” 24 C.F.R. § 982.309(c)(2).
By the Owner
  • During the lease term.
    • Grounds – 24 C.F.R. § 982.310(a).
      • Serious violation (including nonpayment of rent) or repeated minor violations of the lease; or
      • Violation of any law that imposes obligations on the family in connection with the occupancy or use of the premises; or
      • Other good cause. 
    • Nonpayment by PHA not grounds for termination of tenancy. 24 C.F.R. § 982.310(b).
      • One exception: If the HAPs were abated because the family caused HQS violations, the owner may seek an amount equal to subsidy payments from the family.
    • Owner must serve termination notice that “specifies the grounds for termination.” 24 C.F.R. § 982.310(e)(1)(i).
  • At the end of the lease term.
    • Lease may be terminated without good cause. 24 C.F.R. § 982.310(a) (prohibition against terminating the lease without good cause exists only “[d]uring the term of the lease.”).
    • Rationale for this rule:
      • Terminating the lease will not affect the rental assistance (assuming the tenant actually vacates the unit at the end of the lease term and is not evicted) because such assistance runs with the tenant as opposed to a specific unit.

Security Deposits

  • May not exceed amount collected from unassisted tenants for similar units. 24 C.F.R. § 982.313.
  • Security deposits impose a heavy burden on Section 8 participants, who pay reduced rents based on their incomes and can hardly afford market-rate deposits.

Housing Assistance Payments (HAP) Contract

  • The HAP contract between the PHA and the owner must be executed no later than sixty days after the tenant moves into the assisted unit. 24 C.F.R. 982.305(c).
  • Contract obligates PHA to send the owner monthly housing assistance payments to cover the difference between the family’s contribution, which is equal to a percentage of the family’s household income, and the total rent (see below).
  • Making HAP payments during the eviction process.
    • “If the owner has commenced the process to evict the tenant, and if the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner in accordance with the HAP contract until the owner has obtained a court judgment or other process allowing the owner to evict the tenant.” 24 C.F.R. § 982.311(b).
    • “The HA may continue such payments until the family moves from or is evicted from the unit.” Id.

Abating the Housing Assistance Payments

  • PHA may abate the HAPs, or even terminate the HAP contract, if the owner does not fulfill his responsibilities. 24 C.F.R. 982.453(b)
    • Owner responsibilities. 24 C.F.R. § 982.452.
      • Honor all obligations under the HAP Contract and the lease.
      • Maintain the premises in compliance with HQS.
      • Pay for utility services for which the family is not responsible under the lease agreement.
  • HAP contract automatically terminates 180 days after abatement process begins. 24 C.F.R. § 982.455.
  • During the abatement process, the family is not responsible for subsidy payments. 24 C.F.R. §§ 982.310(b) and 982.451(b)(iii).
    • Exception: If the family caused the HQS violation, it becomes responsible for the market rent.
    • Check the PHA’s inspection reports.
      • This report identifies each HQS violation as a fail item.
      • Are the fail items attributed to the tenant or to the owner?
  • During the abatement process, the family remains responsible for its share of the rent.
  • If the family remains in the premises after the 180-day abatement process ends, the owner may hold the family responsible for contract rent only after first serving the family with 30-days’ advance written notice of the increase in rent. 
    • Licht v. Moses, 813 N.Y.S.2d 849, 851 (N.Y. App. Term. 2006) (“In the absence of a new agreement, after the termination of the subsidy, in which the tenant agrees to pay the non-tenant share of the rent, a nonpayment proceeding will not lie to recover that portion of the rent, even in those instances in which the Section 8 subsidy has been properly terminated.”).
    • Livecchi v. Pyatt, 2003 WL 21246096, *7 (County Court, Monroe County 2003) (once PHA terminated the HAP contract, owner was legally entitled to raise the tenant’s rent to the market rate, but only after first serving the tenant with 30 days’ advance notice of the proposed increase.).

Rent

Overview
  • The family pays a reduced rent equal to a percentage of its household income.
  • The PHA pays the balance by sending the owner monthly HAPs equal to the difference between the total rent and the family’s contribution.
  • The PHA negotiates the total rent during a rent reasonableness determination.
  • The PHA also calculates the family’s contribution.
Payment Standards
  • The payment standard is the maximum housing assistance payment the PHA will send the owner. 24 C.F.R. § 982.505(a).
  • It is based on HUD-published fair market rents (FMRs).
    • HUD establishes FMRs for every market area in the United States.
    • The PHA establishes payment standard amounts for each FMR area in its jurisdiction. 24 C.F.R. § 982.503(a).
    • Each payment standard amount is based on “unit size,” which is measured by the number of bedrooms. Id.
  • PHA may set the payment standard between 90% and 110% of the FMR. 24 C.F.R. § 982.502(b).
    • This is the “basic range,” and the PHA may set a payment standard within this range without seeking prior HUD approval. 24 C.F.R. § 982.503(b)(1)(i).
    • The PHA must obtain approval from HUD before setting the payment standard below or above the basic range. 24 C.F.R. § 982.503(b)(2).
The Family's Contribution
  • When the total rent is less than the payment standard, the family pays a reduced rent equal to 30% of its adjusted gross income.
  • When the total rent exceeds the payment standard, the family pays a reduced rent equal to 30% of its income plus the difference between the payment standard and the total rent.
  • During the initial lease term, the family may not pay more than 40% of its income for rent. 24 C.F.R. § 982.508.
Minimum Rent
  • Up to $50 per month. 24 C.F.R. § 5.630(a)(2).
  • Hardship exemptions. 24 C.F.R. § 5.603(b).
    • This provision also governs the public housing and Section 8 project-based programs and is described in more detail above in the section on public housing.

Regular and Interim Re-examinations

  • The PHA calculates the family’s contribution based on the family’s income and household size.
  • Every year, therefore, the family must provide the PHA with verification of its household size and income. 24 C.F.R. § 982.516(a).
  • Failing to comply with this obligation constitutes grounds for termination of assistance. 24 C.F.R. 982 §§ 551(b)(2) and 552(c).
  • Interim re-examinations.
    • In between annual re-examinations, the family must report an increase in income or a change in household size.
    • The family may report a decrease in income.

Illegal Side Payments

  • Overview.
    • As noted above, the PHA determines the family’s share of the rent, and owners are prohibited from demanding or collecting more than this amount.
    • Many owners violate this prohibition, and families often accede to the owner’s demand for side payments because they fear retaliation.
  • Two remedies.
    • State court.
      • Raise, either by claim or defense, the owner’s violation of the prohibition against demanding side payments.
      • HUD addendum authorizes the family to sue the owner for any violations of the addendum provisions, including the one that prohibits demands for side payments.
    • Federal court -- Qui Tam action.
      • Under the False Claims Act, 31 U.S.C. § 3729 et seq., (FCA) a private individual is authorized to bring an action on behalf of the United States against an individual that has knowingly presented a false or fraudulent claim to the government.
      • A “claim” includes “any request or demand, whether under a contract or otherwise, for money or property . . . .” 31 U.S.C. § 3729(c).
      • In U.S. ex rel. Hendow v. University of Phoenix, 461 F.3d 1166, 1174 (9th Cir. 2006), the Ninth Circuit fashioned a four-part test to establish a claim under the FCA:
        • False statement of fraudulent course of conduct;
        • Made with scienter;
        • That was material; and
        • Caused government to pay out money or forfeit moneys due.
      • An owner who accepts side-payments from a Section 8 voucher-holder may be guilty of violating the FCA. Coleman v. Hernandez, 490 F. Supp.2d 278 (D. Conn. 2007); United States ex rel. Sutton v. Reynolds, 564 F. Supp. 1183 (D. Or. 2007) (the collection of side-payments harms the government because the HAP Contract specifically provides that an owner may not receive subsidy payments unless he complies with all his contractual obligations, including the prohibition against collecting more than the tenant’s share of the rent.).
      • A person who violates the FCA “is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. § 3729(a).
        • Liability under the FCA attaches for each false claim submitted. Coleman, 490 F. Supp. at 281 (owner who demanded side-payments from Section 8 voucher-holder on six occasions was liable for total of the side payments plus a civil penalty of $5,500 for each of the six violations.).

Informal Reviews for Applicants

  • 24 C.F.R. § 982.554.
  • Applicants are entitled to written notice of decision denying assistance.
  • Notice must set forth the reasons for the decision and the procedure for requesting an informal review.
  • Informal review process.
    • Set forth in PHA’s administrative plan.
    • Informal review must be conducted by person who was not involved in initial decision to deny assistance.
    • Applicant must be allowed to make oral or written objections to the initial denial.
    • PHA must issue written decision setting forth reasons for the decision.

Informal Hearings for Participants

When Hearings Are Required
  • To contest determination of family’s income and use of that income to calculate the HAP.
  • To contest calculation of utility allowance.
  • To determine appropriate family unit size.
  • To contest termination of family's assistance because of family's action or failure to act.
  • To contest termination of family’s assistance on grounds that family has been absent from the unit for longer than the maximum period.
When Hearings Are Not Required
  • To contest PHA’s decision to deny request for extension of voucher term.
  • To contest PHA’s decision not to approve tenancy or unit.
  • To contest PHA’s determination that unit is not in compliance with HQS.
  • To contest PHA’s decision to exercise or refrain from exercising against the owner any right or remedy under the HAP contract.

Termination of Assistance by PHA

Mandatory Terminations
  • “The PHA must immediately terminate assistance for a family under the program if the PHA determines that any member of the household has ever been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the premises of federally assisted housing.” 24 C.F.R. § 982.553(b)(2).
  • Family evicted for “serious violation of the lease.” 24 C.F.R. § 982.552(b)(2)
    • What constitutes a serious violation?
      • A hearing officer may have a duty to look beyond the judgment and consider whether the breach that led to the judgment constituted a “serious violation of the lease.” See Gray v. Alleghany Housing Auth., 8 A.3d 925, 930 (Pa. Commw. Ct. 2010) (hearing officer erred by finding that eviction for cause “conclusively established a serious violation.”)
      • “Failure to vacate a leased premises upon the expiration of the lease constitutes a serious lease violation under 24 C.F.R. § 982.552(b)(2), mandating the termination of Section 8 Rental Assistance.”). Wilhite v. Scott County Housing Auth., 759 N.W.2d 252 (Minn. Ct. App. 2009).
        • “In the case of serious violations, the landlord is deprived of either a tangible interest or a real, significant economic benefit.” Id. at 256.
        • When a tenant fails to vacate at the end of the lease term, she prevents the landlord from re-letting the property, and may cost the landlord rental income as well as a successor tenant who had been contracted to lease the premises.
        • Distinguish Wilhite on the grounds that the voucher-holder in that case did not pay her share of the rent after the lease ended. Furthermore, there was no indication that she had told her landlord or the PHA that she would have difficulty moving in time, or that she was seeking alternative living arrangements, or that an emergency or unforeseen event had prevented her from vacating the premises.
    • If the judgment for possession was entered by agreement or by default – i.e., the court did not rule on the merits – and if the family can establish it did not commit the alleged violation, the mandatory termination provision should not apply.
      • LAF case: Family received termination notice demanding rent family did not owe. Owner filed suit. Family went to court, where it showed owner’s attorney proof establishing that family did not owe rent demanded in complaint. Owner’s attorney suggested that family sign agreed order awarding owner possession of the premises and staying enforcement a month, and agreed to dismiss rent claim. Family accepted proposal because it had already found new apartment and planned to move before stay expired. When PHA subsequently discovered judgment for possession in case where plaintiff claimed the family owed rent, it issued ITT Notice. At informal hearing, CHA contended that family was subject to mandatory termination provision. LAF argued that court never found that family failed to pay rent, and that terms of agreed order (which showed that owner’s attorney had scratched out language awarding owner a judgment for the amount claimed) supported family’s version of events. Hearing officer reinstated family’s assistance.
Permissive Terminations
  • § 982.552(c).
  • For violation of program obligations.
    • These obligations -- set forth at 24 C.F.R. § 982.551 -- require the family to:
      • Supply PHA with required information and sign necessary consent forms.
      • Refrain from causing HQS violations.
      • Allow PHA to inspect the assisted unit.
      • Refrain from committing serious or repeated violations of the lease.
      • Notify both PHA and owner before terminating lease or vacating the premises.
      • Give PHA a copy of any termination notice it receives from the owner.
      • Promptly notify PHA of birth, adoption, or court-awarded custody of any child.
      • Promptly notify PHA if a household member moves out of assisted unit.
      • Refrain from committing fraud, bribery, or any other corrupt or criminal act in connection with the program.
      • Refrain from receiving any other type of housing subsidy.
  • For criminal activity -- 24 C.F.R. § 982.553(b).
    • Drug-related crimes.
      • Illegal drug use by any household member.
      • Activity that threatens other residents’ health, safety or right to peaceful enjoyment.
      • Mandatory termination for methamphetamine production “on the premises of federally assisted housing.”
      • Any household member’s violation of the prohibition – set forth in § 982.551 – against criminal drug-related activity.
    • Violent activity.
      • The regulations prohibit violent criminal activity. 24 C.F.R. § 982.551.
      • PHA need not establish that the violent criminal activity threatened the health, safety, or right to peaceful enjoyment of other residents or persons living in the immediate vicinity of the assisted unit.  Powell v. Housing Auth. of Pittsburgh, 571 Pa. 552, (Pa. 2002).
    • Strict liability.
      • The family is liable for any household member’s commission of any crime that warrants the termination of assistance.
      • Rationale used in Rucker applies.
    • Evidence of crime.
      • Conviction (or even arrest) is not necessary. 24 C.F.R. § 982.553(c).
      • State’s failure to prove guilt beyond a reasonable doubt in a criminal case does not preclude PHA from establishing guilt by preponderance of the evidence at an administrative hearing.
    • Consideration of circumstances – 24 C.F.R. § 982.552(c)(2)(1).
      • Circumstances include, but are not limited to:
        • Seriousness of offense;
        • Extent of participation or culpability of individual family members;
        • Disability of any family member;
        • Effects of termination on innocent family members.
    • Alternatives to termination.
Termination Procedure
  • Written Notice.
  • Notice requirements.
    • The ITT Notice must:
      • State the grounds for termination;
      • Inform the family of its right to request an informal hearing; and
      • Set forth the deadline for submitting this request. Id.
  • Sufficiency of notice.
    • “The requirement of notice is to inform the tenant of the allegations so that he can prepare a defense.” Edgecomb v. Hous. Auth. of Vernon, 824 F. Supp. 312, 314 (D. Conn. 1993) (Notice alleging nothing but violation of the prohibition against “drug-related criminal activity or violent criminal activity, including criminal activity by any family member” was insufficient to adequately inform family of allegations against them.)
    • The Eleventh Circuit Court of Appeals recently held, in an unpublished decision, that a Section 8 termination hearing notice is not required to specify the individual alleged to have committed the violation or to specify when the violation occurred. Ervin v. Housing Auth of Birmingham Dist.,  281 Fed. Appx. 938, 941 (11th Cir. 2008).
    • Nevertheless, a lower federal court in Alabama subsequently confirmed that “a notice that merely parrots the broad language of applicable regulations is insufficient.” McCall v. Montgomery Housing Auth., 809 F. Supp. 2d 1314, 1325 (M.D. Ala. 2011).

Challenging Proposed Terminations of Assistance

Request an Informal Hearing
  • If the family submits a timely request, the PHA may not terminate assistance unless and until it issues a written decision upholding the termination. 24 C.F.R. § 982.555(a)(2).
Representation
  • “At its own expense, the family may be represented by a lawyer or other representative.” 24 C.F.R. 982.555(e)(3).
Discovery
  • “The family must be given the opportunity to examine before the PHA hearing any PHA documents that are directly relevant to the hearing. The family must be allowed to copy any such document at the family's expense. If the PHA does not make the document available for examination on request of the family, the PHA may not rely on the document at the hearing.” 24 C.F.R. 982.555(e)(2)(i)
  • “The PHA hearing procedures may provide that the PHA must be given the opportunity to examine at PHA offices before the PHA hearing any family documents that are directly relevant to the hearing. The PHA must be allowed to copy any such document at the PHA's expense. If the family does not make the document available for examination on request of the PHA, the family may not rely on the document at the hearing.” 24 C.F.R. 982.555(e)(2)(ii).
Rules of Evidence
  • “Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.” 24 C.F.R. 982.555(e)(5).
  • “Although the rules of evidence are not strictly applied in administrative hearings, there are due process limits on the extent to which an adverse administrative decision may be based on hearsay evidence.” Basco v. Machin, 514 F.3d 1177, 1182 (11th Cir. 2008) (statements set forth in police reports insufficient to support conclusion that voucher-holder violated the prohibition against unauthorized occupants.); Sanders v. Sellers-Earnest, 768 F. Supp. 2d 1180 (M.D. Fla. 2010) (same).
  • Hearsay should be considered only if it has indicia of reliability as measured by six-part test set forth in Kurdi v. DuPage County Housing Auth., 161 Ill. App. 3d 988, 993 (2nd Dist. 1987).
Mitigating Cicumstances
  • “In determining whether to deny or terminate assistance because of action or failure to act by members of the family . . . The PHA may consider all relevant circumstances such as the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure.” 24 C.F.R. 982.551(c)(2)(i).

Challenging Final Termination Decisions -- Procedurally

Section 1983 Action
  • For due process violations.
  • File in federal court.
  • Statute of Limitations.
  • “[S]ection 1983 claims arising in Illinois are governed by a two-year statute of limitations.” Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993).
  • “Section 1983 claims ‘accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.’” Id.
Petition for Certiorari in State Court
  • Administrative Review Law does not apply.
    • Though a party seeking review of an administrative agency decision must usually file an action under the Administrative Review Law, 735 ILCS 5/3-101 et seq. (ARL), the ARL does not apply unless it is expressly adopted by the act creating or conferring power upon the agency involved. Russell v. Dept. of Natural Resources, 183 Ill. 2d 434, 440 (1998).
    • The statute that confers power upon CHA is the Housing Authorities Act, 310 ILCS 10/1 et seq. 
    • This statute does not expressly adopt the ARL, so final administrative decisions to terminate assistance under the Section 8 Housing Choice Voucher Program may be reviewed under the common law writ of certiorari. See Russell, 181 Ill. 2d at 440-41 (when the statute creating or conferring power on an administrative agency does not expressly adopt the ARL and provides for no other form of review, the common law writ of certiorari may be used to review the agency’s actions).
  • When to file.
    • File only if PHA has issued its final administrative decision after holding an informal hearing; otherwise, there’s no record for the court to review.
    • Petition must be filed within six months after the date of the challenged decision. See Connolly v. Upham, 340 Ill. App. 387 (1st Dist. 1950) (“six months has been established as the limitation period during which the writ of certiorari must be filed”). 
    • This six-month period starts to run as soon as the family knew, or should have known, that CHA made a final decision to terminate its assistance.
  • Where to file.
    • Chancery Division, Circuit Court of Cook County.
    • Don’t file in the Law Division because the petition is not an Administrative Review Action.
  • Seeking injunctive relief.
    • File motion for injunctive relief (along with emergency motion for TRO) to keep assistance flowing pending resolution of appeal. 
    • Legal standard for obtaining injunction: 
      • Substantial likelihood of success on the merits. 
        • Calls for case-specific analysis. 
      • Threat of irreparable injury if injunction is not issued. 
        • “[L]oss of subsidized housing constitutes ‘irreparable injury’ justifying injunctive relief.” Jackson v. Jacobs, 971 F. Supp. 560, 565 (N.D. Ga. 1997) (granting plaintiff’s motion for a preliminary injunction and ordering PHA to restore her Section 8 tenant-based assistance.) 
      • Threatened injury to family outweighs harm to PHA. 
        • “It would be difficult to argue that the modest amount of money and administrative inconvenience a preliminary injunction would cost the [PHA] outweighs the injury [the plaintiff] would suffer if she were compelled to remain homeless.” Id. 
        • Even if the plaintiff is not currently homeless, she can establish irreparable injury by showing that she will face eviction for rent if the PHA does not continue or restore the assistance.
      • Granting injunction will not harm the public interest. 
        • “[T]he goal of the Section 8 program is to assist low-income families in obtaining decent, safe, and sanitary housing. In light [of] its worthy purpose, it seems entirely reasonable to construe the program liberally in favor of those whom it seeks to serve.” Id. 
  • Consolidating with forcible action.
    • If owner files eviction for nonpayment of subsidy payments that stopped when PHA terminated family’s assistance, it may be necessary to consolidate forcible action with petition for certiorari. 
    • The Illinois Code of Civil Procedure authorizes consolidation of cases “as an aid to convenience, whenever it can be done without prejudice to a substantial right.” 735 ILCS 5/2-1006
    • Two relevant applications:
      • When two pending actions involve substantially the same subject matter, the court may stay proceedings in one and see whether disposition of the other settles both matters, thereby avoiding two trials on the same issue. Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97 (1st Dist. 1993). 
      • When two separate actions involve an inquiry into the same event, the actions may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial. Id. 
    • When moving to consolidate actions pending in different departments (e.g., Municipal and Chancery), present motion to the assignment judge of the Law Division, County Department. General Order 12-1(b) of the Circuit Court of Cook County.
Complaint for Declaratory Relief in State Court
  • File when no record for court to review either because:
    • PHA terminated assistance without hearing, or
    • Family missed deadline for requesting informal hearing.
  • Two-year statute of limitations.

Challenging Final Termination Decisions -- Substantively

Failure to Consider Mitigating Circumstances
  • As noted above, the regulations governing the Section 8 HCV Program grant PHAs discretion to consider mitigating circumstances. 24 C.F.R. § 982.551(c)(2)(i).
  • Does the failure to consider such circumstances constitute an abuse of discretion?
    • Maybe.
      • Gaston v. CHAC, Inc., 375 Ill. App. 3d 16, 24 (1st Dist. 2007) (finding that a hearing officer’s failure to consider mitigating circumstances renders the distinction between mandatory and permissive terminations meaningless). 
      • Carter v. Lynn Housing Authority, 880 N.E.2d 778, 786-87 (Mass. 2008) (termination of assistance was improper because the hearing officer failed to make any findings relating to the tenant’s individual circumstances and did not indicate “any awareness that he was explicitly authorized by HUD to exercise his discretion to take into account relevant circumstances,” such as the tenant’s “obvious” hearing disability and economic fragility.)
    • Maybe not.
      • Robinson v. District of Columbia Housing Authority, 660 F. Supp. 2d 6, 17 (D.C. 2009) (“the Hearing Officer was under no obligation to explicitly consider the mitigating circumstances presented at the informal hearing.”)
      • Bowman v. Des Moines Municipal Housing Agency, 805 N.W.2d 790 (Iowa 2011) (regulation authorizing the consideration of mitigating circumstances “does not require the hearing officer to state specifically whether he or she considered the mitigating factors brought forth by the tenant, at least where circumstances indicate the hearing officer was aware of his or her discretion to consider those factors.”)
        • Bowman dismissed Gaston’s contention that a failure to consider mitigating circumstances renders the distinction between mandatory and permissive terminations meaningless. (“If the PHA ‘may’ consider mitigating factors, then it may consider all of them, some of them, or none of them. This does not render the distinction between mandatory and discretionary terminations ‘meaningless’ because the PHA retains the discretion not to terminate.”). 805 N.W.2d at 799 n.7.
Mistake v. Fraud
  • PHAs may terminate a family’s assistance for fraud. 24 C.F.R. § 982.552(c)(iv).
  • What a PHA considers fraud, however, may actually be nothing more than a mistake that does not warrant the termination of assistance.
  • “Fraud . . . exists when a person makes a knowing, material misrepresentation with the intent of inducing reliance by another, and that the other person relied upon that misrepresentation to his or her detriment.” McClarty v. Greene Metro. Housing Auth., 963 N.E.2d 182, 186 (Ohio Ct. App. 2011) (Voucher-holder’s failure to report resumption of child support payments did not constitute fraud).
  • “It is important that PHA staff recognize the differences between unintentional and intentional misreporting. Particularly in cases of intentional misreporting, PHA staff must be able to evaluate the special circumstances and seriousness of the case to determine whether it is a case of fraud. PHAs must also establish policies and procedures for fair and consistent treatment of cases of intentional misreporting, abuse, and fraud. A policy that clearly defines circumstances under which a family or owner would be terminated from the program, but also allows the PHA to consider mitigating circumstances before terminating, is best.” Housing Choice Voucher Program Guidebook, Ch. 22.2.
  • HUD identifies a “[f]ailure to report changes as required, such as failure to notify the PHA of a change in family composition or income” as an error or omission rather than fraud or abuse. Id.
  • Penalty for mistake as opposed to fraud.
    • Reimburse the PHA for the amount it overpayed as a result of the tenant’s error. See Housing Choice Voucher Program Guidebook, Chapter 22.5 (“In cases where the error or omission is clearly the fault of the family, the family must repay the PHA within a reasonable period of time. If the amount owed is not repaid, the PHA may terminate the family's assistance.”).
VAWA Defense
  • VAWA, discussed below in a separate section, prohibits PHAs from terminating a domestic violence victim’s assistance for incidents of domestic violence.
  • Two LAF cases:
    • When Ms. L. first came to LAF, her case seemed hopeless. She was 37-years-old and raising six minor children on her own, and CHA had just terminated her Section 8 tenant-based assistance on the grounds that she had pled guilty to felony drug charges on two separate occasions. The first time (when she participated in a drug deal because she feared retaliation from her imprisoned boyfriend's fellow gang members if she refused) she was sentenced to probation. The second time (when drugs that a different ex-boyfriend left in her car were discovered when she was pulled over for a traffic violation) she was sentenced to 18 months in prison because she was still on probation at the time of her arrest. Although Ms. L had a procedural defense that could get her case remanded back to CHA for a new administrative hearing, it didn't seem like she could possibly win this hearing. During the initial interview, however, LAF determined that Ms. L was a victim of domestic violence, and that her criminal activity was directly related to the abuse she endured at the hands of her two ex-boyfriends. LAF and students from the University of Chicago’s Gendered Violence Clinic went to court and, relying on the procedural defense, got the case remanded to CHA for a new hearing. At this hearing, Ms. L testified credibly and at length about her long and complicated relationships with two extremely abusive men, and LAF corroborated her testimony with twenty exhibits (including criminal records, an order of protection, and letters from social workers). CHA reinstated Ms. L’s assistance, finding that she had established (1) her status as a victim of domestic violence, (2) the connection between the abuse she suffered and her criminal activity, and (3) the likelihood that she would, in the future, comply with her obligations under the Voucher Program.
    • CHA terminated Ms. R’s assistance on the grounds that her ex-boyfriend, Mr. M, lived with her as an unauthorized resident. The evidence supporting CHA’s decision consisted of three documents – a cellular phone bill, a bank statement, and a W-2 form – that listed the assisted unit as Mr. M’s address. Mr. M himself gave these documents to CHA just four days after calling to demand that her assistance be terminated. At her informal hearing, Ms. R represented herself. She denied that Mr. M lived with her and stated that his attempt to get her assistance terminated was part of an ongoing campaign of harassment. In support of this defense, Ms. R testified that she had been suffering Mr. M’s threats, attacks, and abuse for years and had obtained two orders of protection against him. In her petition for the first order, she alleged that Mr. M had stalked, chased and physically attacked her, and subsequently broke into her house and destroyed her belongings. In the petition for the second order of protection, she alleged that Mr. M had broken into her house a second time, caused more damage, left on her dining room table a decapitated rat wrapped in a condom, and used feces to write on her walls that she should think of the rat the next time she had sex. CHA upheld the termination of Ms. R’s assistance, so LAF filed a petition for certiorari on her behalf. After getting the court to grant our motion for injunctive relief to keep Ms. R’s assistance flowing pending the resolution of our judicial challenge, LAF filed a brief in support of its petition. Instead of responding to this brief, CHA agreed to restore Ms. R‘s assistance.
Decision Based on Hearsay That Has No Indicia of Reliability
  • As noted above, hearsay should be considered only if it has indicia of reliability as measured by the six-part test set forth in Kurdi v. DuPage County Housing Auth., 161 Ill. App. 3d 988, 993 (2nd Dist. 1987). 
    • Hearing officer should consider:
      • The possible bias of the declarant; 
      • Whether statements are signed and sworn as opposed to anonymous, oral, or unsworn;
      • Whether or not the statements are contradicted by direct evidence;
      • Availability of the declarant and whether or not the opponent subpoenaed the declarant;
    • The credibility of the declarant or witness
      • Testifying to the hearsay; and
      • Whether the hearsay is corroborated.
  • Can hearsay form the sole basis of hearing officer’s decision to terminate?
    • Maybe. 
      • Costa v. Fall River Hous. Auth., 903 N.E.2d 1098, 1110 (Mass. 2009) (“hearsay evidence may form the basis of a PHA's decision to terminate Section 8 assistance so long as that evidence contains substantial indicia of reliability.”).
        • Police report that “offered a detailed factual account based on the personal observations of the detective” was sufficiently reliable, especially because “it is a crime for a police officer to file a false report.” Costa, 903 N.E.2d at 1111.
        • Newspaper article, however, was not sufficiently reliable, and hearing officer “could not properly base a decision to terminate assistance on this kind of unattributed, multi-level, and conclusory hearsay evidence.” Id.
    • Maybe not.
      • Woods v. Willis, 2011 WL 4054855, *7 (N.D. Ohio 2011) (Although hearsay is admissible at informal hearings, “it is improper for a hearing officer to rely solely on hearsay evidence . . . .”).
Penalty Is Disproportionate to the Offense
  • “A reviewing court, in determining whether an administrative finding is against the manifest weight of the evidence, should consider the severity of the sanction imposed.” Abrahmason v. Illinois Dept. of Professional Regulation, 153 Ill. 2d 76 (1992); see also Letourneau v. Dept. of Registration and Education, 212 Ill. App. 3d 717, 731 (1st Dist. 1991) (“When determining whether an administrative decision is contrary to the manifest weight of the evidence, a court should consider the severity of the sanction imposed.”).
  • The following decisions – all from New York -- specifically address the issue of disproportionate penalties in Section 8 HCV cases:
    • Alexander v. Rhea, 935 N.Y.S.2d 323 (N.Y. App. Div. 2011) (terminating assistance for violation of prohibition – set forth at 24 C.F.R. § 982.551(n)  -- against receiving Section 8 tenant-based assistance while receiving another housing subsidy under a duplicative housing assistance program was “shockingly disproportionate” to the offense when evidence established that participant did not mean to defraud PHA, that she received no benefit from subsidy for second apartment, and that she and disabled son could not afford housing without Section 8 assistance.).
    • Gist v. Mulligan, 886 N.Y.S.2d 172 (N.Y. App. Div. 2009) (incarcerated tenant's failure to complete annual recertification form, to appear for her recertification appointment with county department of planning, and to notify the department that she vacated her apartment did not warrant termination of her participation in the program.).
    • Davis v. NYC Dept. of Housing & Preservation, 871 N.Y.S.2d 86 (N.Y. App. Div. 2009) (terminating tenant’s assistance on grounds that she intentionally failed to disclose son’s SSI benefits on recertification form was disproportionate to offense in light of fact that termination would render tenant and her three minor children homeless, and omission had no effect on amount of subsidy she received.).
    • Williams v. Donovan, 874 N.Y.S.2d 910 (N.Y. App. Div. 2009) (terminating 73-year-old woman’s assistance for failing to report her son’s income was “shockingly disproportionate to the offense,” especially since woman had been participating in program for years and had a previously unblemished record).
    • Gray v. Donovan, 870 N.Y.S.2d 347 (N.Y. App. Div. 2009) (Terminating family’s assistance for failing to report two adult children’s income was disproportionate to offense, especially since family had participated in program for years without incident, termination would likely lead to homelessness for family that included minor child, and record contained no evidence of impact that family’s failure to report had on amount of subsidy.).
    • Sicardo v. Smith, 853 N.Y.S.2d 639 (N.Y. App. Div. 2008) (Termination of tenant’s assistance on grounds that she failed to report that her former husband was residing with her in assisted unit was disproportionate to offense.).
    • Riggins v. Lannert, 796 N.Y.S.2d 93 (N.Y. App. Div. 2005) (Terminating family’s assistance as sanction for violating repayment agreement was so disproportionate to offense it shocked the judiciary's sense of fairness.).
    • Moreta v. Cestero, 926 N.Y.S.2d 258, 266 (N.Y. Sup. Ct. 2011) (family’s failure to provide PHA with requested documentation – six as opposed to four paystubs, as well as a letter from the landlord -- did not warrant termination of assistance).

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Section 8 Project-Based Programs

Overview

  • Private owners enter into contracts with HUD, and HUD sends them subsidy payments equal to the difference between the tenant’s share of the rent and the approved contract rent.
  • Rental assistance runs with unit.
  • Owners may opt out of Section 8 programs when contracts expire.
    • Opt-out procedure.
      • Owner must provide the tenants with one year’s advance written notice that the contract is expiring. 42 U.S.C. § 1437f(c)(8).
    • When owners opt-out, tenants get Section 8 vouchers.
      • Enhanced vouchers. 42 U.S.C. § 1437f(t).
        • Families who want to reside in the building get “enhanced” vouchers.
        • Payment standard is set at the new market rents the owner is charging.
        • Owners must accept these vouchers.
        • If family chooses to leave building with voucher, the voucher loses its enhanced status.

Governing Statute and Regulations

  • Statute:
  • Regulations:
    • 24 C.F.R. Part 5, which governs the public housing program and HCVP, also governs the Section 8 project-based programs.
      • Subpart I governs procedure for denying admission to programs and terminating tenancies for criminal activity.
    • The regulations governing the operation of specific project-based programs are set forth below.

The Programs

HUD Handbook 4350.3 REV. 1 – Occupancy Requirements of Subsidized Multifamily Housing Programs

  • Access a copy at www.hud.gov.
  • Governs the following Section 8 Project-Based Programs:
    • New Construction.
    • Substantial Rehabilitation.
    • State Housing Agencies.
    • Loan Management Set Aside (LMSA).
    • Property Disposition Set Aside (PDSA).
    • Section 202 Projects with Section 8 Assistance (Section 202/8).
    • Rural Housing Section 515 Projects with Section 8 Assistance (RHS Section 515/8).
  • The Handbook is not binding, but is entitled to notice. Burroughs v. Hills, 741 F.2d 1525, 1529 (7th Cir. 1984).
  • Table of Contents -- Chapters:
    • Introduction
    • Nondiscrimination Requirements.
    • Eligibility for Assistance and Occupancy.
    • Waiting List and Tenant Selection.
    • Determining Income and Calculating Rent.
    • Lease Requirements and Leasing Activities.
    • Recertification and Unit Transfers.
    • Termination.
    • Required Form HUD 50059 – “Owner’s Certification of Compliance with HUD’s Tenant Eligibility and Rent Procedures.”
  • Table of Contents – Exhibits. (Only the most commonly used exhibits are noted below.)
    • Exhibit 2-5: Examples of Fundamental Alterations.
    • Exhibit 2-6: Examples of Undue Financial and Administrative Burden.
    • Exhibit 5-1: Income Exclusions and Inclusions.
    • Exhibit 5-3: Examples of Medical Expenses That Are Deductible and Non-Deductible.
    • Exhibit 7-1: Form Hud-90-100 Annual Recertification Initial Notice
    • Exhibit 7-2: Annual Recertification First Reminder Notice
    • Exhibit 7-3: Annual Recertification Second Reminder Notice
    • Exhibit 7-4: Annual Recertification Third Reminder Notice/Notice of Termination
  • Table of Contents – Appendices. (Only the most commonly used appendices are noted below.)
    • Appendix 4-A: Model Lease for Subsidized Programs.
    • Appendix 14: Fact Sheets For HUD Assisted Residents – How Rent Is Determined.
    • Appendix 14-A: Fact Sheet for Below Market Interest Rate.
    • Appendix 14-B: Fact Sheet for Project-Based Section 8.
    • Appendix 14-C: Fact Sheet for Rental Assistance payments (RAP).
    • Appendix 14-D: Fact Sheet for Rent Supplement.
    • Appendix 14-E: Fact Sheet for Section 202 Project Rental Assistance Contract.
    • Appendix 14-F: Fact Sheet for Section 236.

Project-Based Contract Administrator

  • The Project Based Contract Administrator for Section 8 Housing Assistance Payment contracts in Illinois is National Housing Compliance (formally Georgia HAP).
  • National Housing Compliance (NHC) is headquartered in Atlanta but has a field office in Chicago.
    • Conducts performance-based contract administration for HUD. 
    • Audits federally assisted properties to ensure that they are in compliance with their contract and all program requirements. 
    • Oversees approximately 900 federally assisted properties throughout Georgia and Illinois.
  • Website: www.nhcinc.org

Admission

  • 24 C.F.R. § 5.653.
  • Mandatory denials.
    • For drug-related crimes -- 24 C.F.R. § 5.854.
      • Within the past three years, the family has been evicted from federally subsidized housing for drug-related criminal activity.
        • Exceptions:
          • The household member who committed the crime has completed a rehabilitation program; or
          • That household member no longer poses a threat (e.g., he has died or is imprisoned).
    • For sex offenders – 24 C.F.R. § 5.856.
      • When household member is subject to lifetime registration requirement.
  • Permissive denials -- 24 C.F.R. § 5.855.
    • Household member is currently engaged in, or has during some period prior to admission – and the owner establishes this period --  engaged in:
      • Drug-related criminal activity;
      • Violent criminal activity;
      • Other criminal activity that may threaten the residents’ health, safety, or right to peaceful enjoyment of the premises;
    • Reconsidering permissive denials. 24 C.F.R. § 5.855(c).
    • Exercising discretion – 24 C.F.R. § 5.852.
      • Consideration of circumstances.
      • Exclusion of offender.
      • Consideration of rehabilitation.

Lease Agreement

  • HUD's model lease for subsidized programs.
    • For programs covered by HUD Handbook 4350.3 – see above -- HUD requires owners to use a lease meeting specific requirements.
    • Owners can comply with this requirement by using HUD’s "Model Lease for Subsidized Programs."
      • Access a copy at www.hud.gov.
      • The model lease is also Appendix 4-A to HUD Handbook 4350.3.
    • The model lease automatically renews itself at the end of every term unless terminated for good cause.
    • Paragraph 11 provides that the tenant agrees to pay market rent for any period during which the unit has been rendered uninhabitable as a result of the tenant’s “carelessness, misuse, or neglect.”
      • LAF case:
        • Resident lived in a unit that was rendered uninhabitable by fire.  Owner claimed that tenant started the fire by leaving incense stick burning near kitchen sink while tenant was away from unit. Owner then served tenant (who was temporarily staying with another resident in the building) with a termination notice demanding over $700, which was the difference between the market rent and tenant’s contribution, which tenant had already paid for the month. Notice did not state why owner was demanding this amount or make reference to paragraph 11 of the lease. Tenant ignored the notice because he knew he had paid his share of the rent and didn’t understand why the owner was demanding more rent. Owner then moved to evict the tenant for nonpayment of rent. Case dismissed because notice was impermissibly vague, and owner did not re-file or make further demands for increased rent from tenant.
  • HUD-approved tenancy addendum
    • In the Moderate Rehabilitation and Project-Based Voucher programs, which are administered by PHAs, the lease agreement must include the HUD-approved tenancy addendum that's used in the HCV Program.

Terminating the Lease

  • Regulations governing the termination process: 
  • Procedural protections. 
    • Specific requirements regarding service and form of notice. 
    • Check governing regulations and, where applicable, ¶ 23 of the Model Lease. 
  • No grievance rights.  
    • This distinguishes the Section 8 Project-Based Programs from both the Public Housing Program (where the tenant can request informal and formal grievance hearings to contest non-criminal violations) and the Section 8 Housing Choice Voucher Program (where the family can request an informal hearing to challenge proposed termination of assistance).
  • Terminations for drug-related criminal activity – 24 C.F.R. § 5.858.
    • On or near the premises.
      • This differs from public housing, where tenants may be evicted for drug-related criminal activity on or off the premises.
    • Strict liability for crimes committed by household members or guests. Camco v. Lowery, 362 Ill. App. 3d 421, 437-38 (1st Dist. 2005) (extending the holding in Rucker to Section 8 Project-Based Programs). 
  • Terminations for other criminal activity – 24 C.F.R. § 5.859.
    • Crimes that threaten management or other residents’ health, safety, or right to peaceful enjoyment of the premises.
    • Crimes that threaten people living in immediate vicinity of the premises.
  • Evidence of criminal activity– 24 C.F.R. § 5.861.
    • Conviction or even arrest not necessary.
    • Standard of proof – preponderance of the evidence.

Rent

  • Income-based.
  • Minimum rent.
    • Moderate Rehabilitation Program;
    • All other Section 8 Programs.
    • Hardship exemptions.
      • 24 C.F.R. § 5.630(b).
      • This provision also governs the public housing and Section 8 Housing Choice Voucher programs and is described in more detail above in the section on public housing.

Annual and Interim Reexamination Procedures

  • For Moderate Rehabilitation and Project-Based Voucher programs, the procedure is set forth in PHA’s administrative plans.
  • For other programs, the procedure is set forth in 24 C.F.R. § 5.657 and Chapter 7 of HUD Handbook 4350.3.
    • If the owner follows procedure and issues requisite number of recertification notices according to schedule, and tenant does not respond, owner may raise rent to market rate.
      • LAF case.
        • In a stunning example of cutting off one’s nose to spite one’s face, a tenant refused to recertify because she was upset by the owner’s refusal to make necessary repairs. The owner, who had issued all the requisite notices, then raised the tenant’s rent from $37 to $997 per month (the market rate). Tenant, who survived on her epileptic son’s disability benefits, could not afford this amount so the owner moved to evict her for nonpayment of rent. No legal defenses. Compounding the problem was the fact that the tenant’s 38-yr-old sister had just died of AIDS, and the tenant had taken her sister’s two minor sons into her unit and was in the process of obtaining legal guardianship over them. LAF convinced the owner and HUD to give the tenant another chance to recertify, to retroactively reduce her rent back down to $37 per month, to dismiss the eviction action, and to add the tenant’s two nephews to her lease agreement.
    • Between annual recertifications, tenant must report increase of $200 per month or more, and change in household.
    • Rent adjustments.
      • Increase takes effect 1st day of month following end of 30-days’ advance notice period.
        • Owner may impose retroactive rent increase if tenant does not report change in income in a timely manner.
      • Decrease takes effect 1st day of month following date on which tenant provided verification of decrease.

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Other Federally Subsidized Housing Programs

Supportive Housing for the Elderly (Section 202) and Persons with Disabilities (Section 811)

Rent Supplement Program

Section 221(d)(3) Below Market Interest Rate Program

  • Statute:
  • Regulation:
  • HUD Handbook.
    • 4350.3 – Occupancy Requirements for Multifamily Housing Programs.
  • Overview.
    • HUD provides low-interest (3%) mortgages to developers.
  • Flat rents.
    • Below market rate.
    • Do not fluctuate when tenant’s rent changes.
    • Proposed rent increases must be reviewed and approved by HUD.
  • Terminating the tenancy – 24 C.F.R. § 247.4.
    • The landlord's determination to terminate the tenancy shall be in writing and shall:
      • State that the tenancy is terminated on a date specified therein;
      • State the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense; and
      • Advise the tenant that if he or she remains in the leased unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense.
    • Manner of service.
      • Service of the termination notice shall be accomplished by:
        • Sending a letter by first class mail, properly stamped and addressed, to the tenant at his or her address at the project, with a proper return address, and
        • Serving a copy of the notice on any adult person answering the door at the leased dwelling unit, or if no adult responds, by placing the notice under or through the door, if possible, or else by affixing the notice to the door.
        • Service shall not be deemed effective until both notices provided for herein have been accomplished.
        • The date on which the notice shall be deemed to be received by the tenant shall be the date on which the first class letter provided for in this paragraph is mailed, or the date on which the notice provided for in this paragraph is properly given, whichever is later.
  • Prepayment of mortgages.
    • If the owner prepays the mortgage after 20 years:
      • The owner must provide tenants with advance written notice (no less than 150 and no more than 270 days) of intent to prepay the mortgage.
      • Tenants must be offered “enhanced” Section 8 vouchers.
        • Payment standard set at new market rents charged by owner, so tenants can stay in the building.
        • Federal law (42 U.S.C. § 1437f(t)) allows the family “to elect” to stay in the building, so the owner must accept enhanced vouchers.
        • This right does not expire.
        • If tenant moves out of the building, her voucher loses its enhanced status.
    • If the owner waits 40 years to pay off the mortgage, he does not have to provide the tenants with any advance notice of the prepayment and the tenants do not receive “enhanced” vouchers.

Section 236 Program

  • Statute:
  • Regulation:
  • HUD Handbook.
    • 4350.3 – Occupancy Requirements for Multifamily Housing Programs.
  • Overview.
    • Developers get mortgages at prevailing rate, but HUD pays a subsidy to reduce these rates to 1%.
    • Tenant pays either a basic rent (equal to the amount necessary to amortize mortgage at 1%) or an amount equal to 28% of her income, whichever is higher.
    • Rules governing termination of tenancies and prepayment of mortgages are the same as the rules governing the 221(d)(3) program set forth above.

Housing Opportunities for Persons with AIDS (HOPWA)

  • Statute:
  • Regulation:
  • Overview
    • Grantees receive HOPWA funds “to devise long-term comprehensive strategies for meeting the housing needs of persons with AIDS or related diseases and their families.”
  • Licensing grantees.
    • Supportive Residences Licensing Act, 210 ILCS 65/1 et seq.
      • Authorizes the Department of Public Health (DPH) to license Supportive Residences for Persons with HIV Disease using standards appropriate to this type of residential setting.
      • Authorizes DPH to establish minimum standards, rules, and regulations that “will facilitate the provision of quality residential care that is specific to the unique needs of persons with HIV Disease, while ensuring the protection of residents' rights and general welfare.”
  • Termination of assistance. 24 C.F.R. § 574.310(e).
    • Surviving family members.
      • The grantee must, for a reasonable grace period not to exceed one year, provide housing assistance and supportive services to the surviving member(s) who were living with the person with AIDS at the time of his or her death.
    • Violation of program requirements or conditions of occupancy.
      • Grantee “must ensure that supportive services are provided, so that a participant's assistance is terminated only in the most severe cases.” 
        • Garden View, LLC v. Fletcher, 394 Ill. App. 3d 577 (1st Dist. 2009), appeal denied, 234 Ill.2d 520 (despite regulatory instruction to terminate “only in the most severe cases,” court upheld termination of participant’s assistance for possession of 0.4 grams of marijuana).
      • Procedure.
        • When terminating a participant’s assistance for cause, the grantee must provide a formal process that recognizes the rights of individuals receiving assistance to due process of law. This process must consist of:
          • A written notice setting forth a clear statement of the reasons for termination;
          • An opportunity to review the decision, in which the participant is given the chance to confront opposing witnesses, present written objections, and be represented by their own counsel, before a person other than the person (or a subordinate of that person) who made or approved the termination decision; and
          • A prompt written notification of the final decision. 
        • Grantees must comply with this procedure. Cotton v. Alexian Bros. Bonaventure House, 2003 WL 22110501, *5 (N.D. Ill. 2003).
          • Proper written notice is always required.
          • Pre-termination hearing is required except in actual emergencies, in which case a post-termination hearing satisfies the due process requirement.

Shelter Plus Care (S+C)

  • Statute:
  • Regulation:
  • Overview
    • Created pursuant to 42 U.S.C. §§ 11403-11407b, the Stewart B. McKinney Homeless Assistance Act.
    • The purpose of the Act is “to provide rental housing assistance, in connection with supportive services funded from sources other than this part, to homeless persons with disabilities (primarily persons who are seriously mentally ill, have chronic problems with alcohol, drugs or both, or have acquired immunodeficiency syndrome and related diseases) and the families of such persons.” 42 U.S.C. § 11403.
    • HUD gives grants to “recipients” who provide rental assistance to “eligible persons” who have been selected to participate in the S+C Program. 
    • These “participants” are homeless individuals who suffer from one or more of the following disabilities:
      • Mental illness;
      • Drug addiction;
      • Alcoholism;
      • AIDS.
    • Participant’s family members may also receive assistance if they, too, are homeless.
  • Calculating participant’s rent – 24 C.F.R. § 582.310.
  • Terminating participant’s assistance – 24 C.F.R. § 582.320.
    • Grounds.
      • Violation of program obligations or conditions of occupancy.
      • Recipients must exercise judgment and consider all extenuating circumstances to ensure that assistance is terminated only in the most severe cases.
      • Recipients may restore participant’s assistance after it has been terminated.
    • Due process.
      • Participants must receive a written notice “containing a clear statement of the reasons for termination.”
        • Notice must also advise tenant of her right to request a reasonable accommodation. Price v. Rochester Housing Auth., 2006 WL 2827165, *9 (W.D.N.Y. 2006) (“Fourteenth Amendment requires RHA to revise its Shelter Plus Care Program termination letters to advise participants of their right to request a reasonable accommodation.”).
      • Participant must also be given opportunity to present, to someone other than the person who made or approved the initial decision, written or oral objections.
      • Recipient must then promptly issue a written decision.

Supportive Housing

  • Statute:
  • Regulation:
  • Overview.
    • Funds awarded to recipients to support:
      • Transitional housing to facilitate the movement of homeless individuals and families to permanent housing;
      • Permanent housing that provides long-term housing for homeless persons with disabilities; and
      • Housing that is part of a particularly innovative project for meeting the immediate and long-term needs of homeless persons.
  • Calculating the participant’s rent - 24 C.F.R. § 583.315.
  • Termination of housing assistance – 24 C.F.R. § 583.300(i).
    • Grounds.
      • The recipient may terminate assistance to a participant who violates program requirements;
      • Recipients should terminate assistance only in the most severe cases;
      • Recipients may resume assistance to a participant whose assistance was previously terminated.
    • Due process.
      • Before assistance is terminated, the participant must receive a written notice containing a clear statement of the reasons for termination;
      • The participant must be given an opportunity to present, to a person other than the individual who made the initial termination decision, written or oral objections.
      • The recipient must then promptly issue a written final decision.

Low Income Housing Tax Credit (LIHTC)

  • Statute:
  • Regulation:
  • Overview.
    • Enacted as part of the Tax Reform Act of 1986 in an effort to encourage the private development of low income housing.
  • Terminating the tenancy.
    • A landlord participating in the tax credit program may not terminate the tenancy of a low-income tenant except for good cause. Carter v. Maryland Management Co., 835 A.2d 158 (Md. 2003).

Home Investment Partnership Program

  • Statute:
  • Regulation:
  • Overview.
    • HUD funds state and local governments to contract with developers who build housing for low-income residents.
    • Initial lease term must be at least one year.
  • Terminating the lease - 24 C.F.R. § 92.253(c).
    • Grounds:
      • Serious or repeated violation of the terms and conditions of the lease;
      • Violation of applicable Federal, State, or local law;
      • Other good cause;
      • Expiration of the lease is not good cause.
    • Procedure.
      • The owner must serve the tenant with 30-days’ advance written notice, even for nonpayment of rent.
    • Notice must specify grounds for termination.

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State and Local Housing Programs

Illinois Affordable Housing Act

Illinois Rental Housing Support Act

Bridge Subsidy Program

  • Overview.
    • Operated by the Illinois Department of Human Services, Division of Mental Health (DMH).
    • Goal is to provide individuals who suffer from serious mental illnesses with monthly rental assistance they need to obtain decent, safe, and affordable housing in the community of their choice.
    • Program is, as the title implies, a “bridge” to permanent rental subsidy programs.
    • As participants transition to permanent subsidy programs, Bridge funding can be “recycled” and used to help other individuals.
  • Tenant-based assistance program.
    • Modeled on the Section 8 HCV Program.
    • Ensures that the transition from the Bridge Program to the HCV Program or some other permanent rental subsidy program will be as seamless as possible.
  • Eligibility.
    • Individual must have Axis I diagnosis of serious mental illness, or diagnoses of both mental illness and substance abuse, and be:
      • A resident of a long-term care facility; or
      • At risk of placement in a nursing facility; or
      • An extended long-term patient in a State hospital; or
      • An aging-out adolescent or young adult from an ICG program; or
      • A DCFS ward aging-out of guardianship; or
      • A resident of a DMH-funded or supervised residential setting; or
      • Homeless (as determined by DMH).
    • Current household income must be equal to or less than 30% of the area median income.
    • Must be on a waiting list for the Section 8 HCV Program (or comparable permanent rental subsidy program) or wiling to get on such a waiting list once it opens.
  • Selecting a unit.
    • Participants must locate a suitable unit in the private market within 90 days, though this period may be extended on a case-by-case basis.
  • Rent and subsidy payments.
    • Tenant’s contribution equals no more than 30% of her adjusted gross income.
    • Tenant executes lease with owner and pays rent directly to the owner.
    • Owner executes a HAP contract – like the one used in the Section 8 HCV Program – with the Bridge Subsidy Administrator.
  • Temporary absences from the assisted unit.
    • Subsidies will continue:
      • Up to 60 days when participant is hospitalized or temporarily absent for some other reason.
        • This period may be extended.
      • Up to 30 days when the participant is incarcerated.
  • Termination policies.
    • Termination proceedings are initiated by the subsidy administrator and must be approved by DMH and the Regional Housing Support Facilitator.
    • Grounds.
      • Nonpayment of rent.
      • Serious and repeated lease vioaltions that pose a threat or serious hazard to other tenants.
      • Conviction for serious or violent crime.
      • Failure to accept offer to enter HCV or comparable rental subsidy program.
      • Failure to recertify annually.
      • Fraud in connection with program.
    • Participants should be terminated only for “the most serious rule violations.”
    • Subsidy administrators should consider extenuating circumstances.
  • Termination procedures and appeals.
    • Written notice required.
      • Must contain clear statement of the reason for termination.
    • DMH review of decision.
      • Participant may make written or oral objections to someone other than person who made or approved the termination decision.
    • DMH must issue a prompt written decision.
    • DMH may restore assistance to an individual whose assistance was previously terminated.

Chicago Low Income Housing Trust Fund

  • Overview
    • City housing program.
    • Property-based.
    • Assistance runs with unit.
    • Funded through City of Chicago corporate funds, federal HOME program funds, and other HUD grants.
    • Serves families earning or receiving 30% or less of area median income.
  • Flat rents.
  • Terminating the lease.
    • Good cause required.
      • Good cause protection set forth in regulatory agreements between the City of Chicago and the building owners.
      • Find these agreements by conducting a title search for the property.
    • If HOME funds are used, the lease may not be terminated upon less than 30 days advance written notice. See 24 C.F.R. § 92.253(c).

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Criminal Law and Housing

Overview

  • Connection between criminal law and housing law is extensive and important.
    • A criminal record can preclude an individual from gaining admission to a subsidized housing program, and even relatively insignificant crimes (e.g., possession of one marijuana cigarette) can result in eviction from subsidized housing or termination of tenant-based assistance.
    • Innocent tenants and their children can be evicted for the crime of a household member or guest.

How Landlords Learn about Criminal Activity

  • During annual reexaminations.
    • In the public housing and Section 8 programs, PHAs and property managers conduct criminal background checks on all adult household members.
  • When moving papers are requested.
    • In the Section 8 HCV Program, the PHA conducts criminal background checks on all adult household members.
  • When the arrest takes place on CHA property. 
    • The Chicago Police Department (CPD) and CHA follow established procedures for sharing information about public housing residents who are arrested for drug-related crimes. 
    • CPD’s Public Housing Unit receives case reports regarding arrests on CHA properties and provides these reports to a CHA employee who works with the Unit. 
    • This employee then sends copies of the reports to CHA’s One-Strike Project Manager. 
    • The One-Strike Manager completes a notice of arrest and sends it to the property manager, who then serves the tenant with written notice of CHA’s decision to terminate the lease agreement.

Collateral Civil Consequences of Guilty Pleas in Criminal Cases

  • Many subsidized housing residents face eviction or the loss of tenant-based assistance because they pled guilty to a minor criminal offense.
  • Some were innocent, but pled guilty on advice of a public defender (PD) in exchange for a sentence that involved no incarceration.
    • PDs are focused on protecting liberty interest.
    • PDs are often unaware of collateral civil consequence of guilty plea, or do not know that client is a subsidized housing resident.

Maintaining Innocence after Guilty Plea

  • A tenant who pleads guilty in a criminal proceeding may, under certain circumstances, maintain her innocence in a subsequent eviction action or administrative hearing. 
  • Talarico v. Dunlap, 177 Ill. 2d 185, 197-200 (1997) (criminal defendant who was offered chance to avoid incarceration by pleading guilty in exchange for probation had no incentive to litigate defense in criminal case, so guilty plea did not preclude him from raising defense as claim in subsequent civil proceeding).
    • Ernie Talarico, a medical student, suffered from severe acne so his doctor prescribed Accutane. After using the drug for two months, Talarico, who had no prior criminal history, went to a forest preserve where he grabbed a 15-year-old male, pushed him to the ground, and shocked him with a stun gun. Less than a week later he went to another forest preserve, where he shocked a 25-year-old man with the gun, grabbed the man’s genitals, and kissed the man several times.
    • Talarico was then arrested and charged with several crimes, including aggravated battery. In exchange for probation, Talarico pleaded guilty to two counts of misdemeanor battery, stipulated to the facts surrounding his crimes, and specifically “admitted to having committed the crimes ‘intentionally and knowingly, without legal justification.’” 
    • Talarico later filed a civil suit alleging that his doctor subjected him to unnecessary risks by prescribing Accutane, a drug with known side-effects. The trial court held that he was collaterally estopped from contending that Accutane caused his criminal behavior because, in the course of making his guilty plea, Talarico admitted to having “knowingly and intentionally” committed the crimes. 
    • The appellate court reversed, and the Illinois Supreme Court affirmed the appellate court, finding that Talarico had no incentive to litigate his defense in the criminal proceeding because (1) the State’s Attorney offered a sentence that involved no incarceration, and (2) Talarico could not at the time of his plea have foreseen the civil suit.
  • Costa v. Fall River Housing Auth. , 881 N.E.2d 800, 810-11 (Mass App. Ct. 2008) (“A finding of guilt by trial is conclusive of the same factual issues in any later civil litigation.  In contrast, a plea of guilty has only evidentiary effect upon the same issues in any subsequent civil litigation.”), aff'd, Costa v. Fall River Housing Auth., 903 N.E.2d 1098, 1114 (Mass. 2009) (Section 8 voucher-holder who faced termination of assistance because she pled guilty to “soliciting sex for a fee and keeping a house of ill fame”  is entitled to “introduce evidence in explanation for her guilty pleas.”)

Three LAF Cases

  • Ms. B is a working, single mother of four whose tenancy was subsidized under the Section 8 Housing Choice Voucher Program. While defending herself against an unprovoked physical attack in the parking lot behind her apartment, Ms. B punched her assailant (her fiance’s ex-girlfriend) above the eye and drew blood. She was then arrested and charged with battery. Because this was her first offense, the prosecutor offered one year’s supervision in exchange for a guilty plea. Ms. B’s public defender encouraged her to accept this offer, and she followed his advice. CHAC, the agency charged at the time with administering the Voucher Program, discovered her conviction when she requested moving papers and terminated her assistance on the grounds that she had pled guilty to committing a violent crime. LAF filed a petition for certiorari and won a reversal in the Circuit Court of Cook County, but CHAC appealed and won a split decision. The case generated a majority opinion (stating that, given the tenant’s guilty plea, the hearing officer’s decision was not against the manifest weight of the evidence), a concurring opinion (stating that an individual who pleads guilty in criminal court should not be allowed to subsequently maintain her innocence in a civil proceeding), and a dissent. Nevertheless, it was issued as a Rule 23 Order and therefore has no precedential value.
  • Ms. L, a public housing resident, was arrested in her unit for possession of marijuana and an unregistered firearm that her adult daughter had brought into the apartment without Ms. L’s knowledge. Ms. L pled guilty to these crimes in criminal court, but only because the prosecutor offered her a year’s supervision in exchange for a guilty plea, and Ms. L’s public defender advised her to accept this offer rather than proceed to trial and risk even the possibility of incarceration.  Unaware at the time of how a guilty plea could affect her subsidized tenancy, Ms. L followed her attorney’s advice. Although she successfully discharged the terms of her supervision, and thus got the criminal charges dismissed, CHA eventually learned about her conviction and moved to evict her from the only decent housing she could afford. The court allowed Ms. L to maintain her innocence despite the guilty plea, but she lost the case after a bench trial.
  • Ms. W is a working, single mother who lives with her seven children in a public housing unit where she pays no rent. She was arrested, for the first time in her life, for possession of one marijuana cigarette that was found in her van. On the advice of her public defender, she pled guilty in exchange for six months’ supervision. When CHA learned about this conviction, it moved to evict her. LAF won this case by asserting an equitable defense.

Suppressing Illegaly-Seized Evidence in Eviction Actions

  • U.S. Residential v. Michael Head, 397 Ill. App. 3d 196 (1st Dist. 2009), appeal denied, 236 Ill. 2d 574 (2010) (trial court erred by excluding from eviction proceeding evidence that had been seized in violation of the 4th Amendment’s prohibition against illegal searches and seizures).

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"Reasonable Accomodation" Defenses

The Problem

  • Residents with disabilities often face eviction or the termination of tenant-based rental assistance because of violations directly related to their disabilities.
  • Even when not facing eviction, a resident with disabilities may need certain accommodations (e.g., permission to break a lease and vacate an apartment that aggravates her condition).
  • LAF cases:
    • Single mother of four faced eviction from public housing for failing to pay $300 in rent that accrued while she was suffering from debilitating depression triggered by death of son.
    • Tenant faced eviction for repeatedly telling property manager that voices in her head were telling her to sleep with property manager.
    • Incontinent tenant faced eviction because unpleasant odors emanating from her unit disturbed neighbors.
    • Tenant faced eviction for using illegal drugs to numb pain caused by infant child’s murder.
    • Tenant with bi-polar disorder faced eviction for lying naked in doorway and inviting men who passed by to have sex with her.
    • Public housing resident faced eviction for creating apartment that could be negotiated only by following single narrow path through canyons of newspapers.
    • Public housing resident faced eviction for fire that started after tenant, who was cooking pork chop on stove, fell asleep because of medication he was taking.

The Fair Housing Act

  • 42 U.S.C. § 3604.
  • Prohibits discrimination against people with disabilities. 42 U.S.C. § 3604(f)(1).
  • Requires landlords to make reasonable accommodations when necessary to afford disabled person “equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).
  • Refusing to grant a request for a reasonable accommodation, or waiting an unreasonably long time to act on the request, constitutes discrimination.

Establishing a Prima Facie Case of Discrimination

Handicap
  • The tenant must suffer from a "handicap" as that term is defined in the FHA.
  • A "handicap" is a mental or physical impairment that substantially limits one or more major life activities. 42 U.S.C. § 3601(h).
    • Medically competent evidence of impairment.
    • Proof that tenant receives SSI is sufficient.
  • In the eviction context, there must be a causal connection between the handicap and the lease violation.
    • Fact that tenant suffers from a disability is not by itself enough.
    • Must be nexus between disability and lease violation.
Landlord's Knowledge
  • You must establish that the landlord knew or reasonably should have known about the tenant's handicap.
  • Establish landlord's knowledge by making a request for an accommodation.
    • Sample requests made in LAF cases described above:
      • Single mother who faced eviction for nonpayment of $300 asked for second chance to pay rent due, and assured PHA that she could comply with her tenant obligations because she was now under a psychiatrist’s care and receiving medication to treat her depression.
      • Tenant who heard voices in her head requested time to seek psychiatric care and get on a treatment plan. 
      • Incontinent tenant asked for time to clean her apartment, dispose of soiled bedding, and get a housekeeper paid for by the Department on Aging to clean her unit three times a week.
      • Tenant who used illegal drugs stated that she was using only because her severe depression was not being adequately treated by medication prescribed by psychiatrist, and she asked PHA for time to enter a drug-treatment program and get on proper medication.
      • Bi-polar tenant who was lying naked in doorway asked for time to adjust her medications.
      • Hoarder requested time to clean apartment and to adjust medications. 
      • Public housing resident who fell asleep during fire asked for time to adjust medications, promised not to use stove, and provided proof that family members would cook for him.
    • Request can be made any time before the entry of a judgment for possession or, arguably, before the tenant is physically evicted from the premises. Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997) (In asserting whether and when defendants knew of [the tenant's] handicap, the court should have considered the date [the tenant] was actually evicted, as the FHA provides that unlawful discrimination occurs when a dwelling is 'den[ied]' to a renter because of that renter's handicap.").
    • No requirement that request be in writing, but putting the request in writing helps establish landlord’s knowledge.
Accommodation Is Necessary
  • Accommodation of the handicap is necessary to afford the tenant an equal opportunity to use and enjoy the dwelling.
Landlord Refused to Grant Accommodation
  • You must establish that the landlord refused to either make the requested accommodation or engage in an interactive process with the tenant.
  • Once the request for an accommodation is made, the landlord has a duty to respond or engage in an interactive process with the tenant.
  • “[I]f a landlord is skeptical of a tenant’s alleged disability or if the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.” Jenkowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996).

Defenses to Reasonable Accommodation Claims

Generally
  • Accommodation would impose an undue burden or cause a fundamental change in the provision of housing.
  • If the tenant can establish that accommodation is “reasonable on its face, . . . burden then shifts to the landlord to prove that the requested accommodation imposes an undue hardship.” Oconomowoc, 300 F.3d at 783.
In Eviction Cases
  • Lease violation is related to current drug use.
    • Tenants engaged in current drug use not protected by FHA. 42 U.S.C. § 3602(h).
    • In the example described above – tenant faced eviction for possession of drugs used to numb pain caused by child’s murder -- LAF identified disability not as drug addiction, but as severe depression, and stated that client used illegal drugs only because of this condition.
  • Tenant poses a “direct threat.”
    • FHA does not protect resident “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. § 3604(f)(9).
    • Evidence of direct threat must be objective.

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Domestic Violence and Housing

The Problem - Blaming the Victim

  • Domestic violence victims sometimes face eviction for incidents of domestic violence.
    • This problem is especially common in subsidized housing, where tenants are liable for crimes committed by household members and guests.
  • LAF cases:
    • After tenant was severely beaten by her fiancé, she received written notice from the property manager that her tenancy would be terminated on the following grounds: “Your guest was taken from your apartment by the Chicago Police Department in response to your phone request for someone to alert the police because you needed help. The police officer and management came to your unit, and when you answered the door it was obvious that you had been beaten. Your face was swollen, especially your nose, and scratches as well as bite marks appeared to be present. Allowing this individual in your unit is a violation of [the lease provision that prohibits your guests from engaging in criminal activity].”
    • Upon returning from the hospital, where she had been treated for injuries sustained during beating she received from boyfriend in her apartment, public housing resident received written notice from CHA of its intent to terminate her tenancy on the grounds that, during the beating, her boyfriend caused over $3,000 worth of damage to the unit and disturbed the neighbors.
    • Section 8 resident faced eviction for stabbing ex-boyfriend while defending herself after ex-boyfriend broke into apartment.
Violence Against Women Act (VAWA)
  • 42 U.S.C. § 1437f(c)(9).
  • Covered programs.
    • Public housing.
    • Section 8 HCVP.
    • Section 8 project-based programs.
  • Protected parties.
    • Victims of domestic violence.
    • Victims of dating violence.
    • Victims of stalking.
  • Legal protections.
    • Status as victim does not constitute grounds for denying admission to covered program
    • Victim may not be evicted, or face termination of tenant-based assistance, for incident of domestic violence.
    • PHA or Section 8 landlord may bifurcate lease to evict just the offender.
    • PHAs and Section 8 landlords must honor civil court orders (e.g., orders of protection) that address access to or control of property.
  • Domestic violence victim may still be evicted when:
    • She engages in criminal activity that has nothing to do with her status as victim of domestic violence; or
    • Failing to evict would pose an actual and imminent threat to other residents or to management.
  • Verifying status as victim.
    • PHAs and Section 8 landlords may, but are not required to, request written verification that tenant is victim of domestic violence.
    • Acceptable forms of verification:
      • Police report or court record;
      • Statement, signed under penalty of perjury, from attorney, medical professional, or social worker verifying that incident in question was bona fide incident of abuse.
        • Tenant must sign statement and identify offender.
      • HUD-approved certification form.
    • Tenant must respond to request for written verification within 14 days.
  • Metro North Owners v. Thorpe, 870 N.Y.S.2d 768 (N.Y. 2008).
    • Sonya Thorpe faced eviction from a Section 8 project-based development for allegedly stabbing her boyfriend in a domestic dispute. Thorpe moved for summary judgment, claiming that her boyfriend was the aggressor, that she was the victim, and that VAWA therefore prohibited the landlord from terminating her tenancy. Motion granted. 
    • Trial court allowed Thorpe to introduce evidence (including police reports and order of protection) to prove “necessary background information in establishing a pattern of domestic violence in which [Thorpe was] a victim.”
    • Trial court rejected landlord’s attempt to oppose motion by showing that she allowed her boyfriend into the building several times before most recent incident but after obtaining order of protection against him. “Although petitioner alleges that respondent allowed [her boyfriend] access to the subject premises shortly after obtaining a protection order, her behavior . . . does not determine that respondent was not a victim of domestic abuse.” 870 N.Y.S.23d at 184.  After discussing battered women’s syndrome, court noted that “[u]nrepresentative and inconsistent victim behavior toward an alleged aggressor fits into the cycle of domestic violence.”  Id. at 185.
FHA Sex Discrimination Claim
  • When tenant lives in property that’s not covered by VAWA amendments, she can rely on FHA.
  • FHA prohibits policies that have disparate and negative impact on women.
  • Because vast majority (98.5%) of domestic violence victims are female, policy of evicting such victims for incidents of domestic violence has disparate impact on women.
  • Federal courts have denied motions to dismiss such discrimination claims. Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005) (Plaintiff claimed that FHA’s prohibition against sex discrimination violated when she was evicted shortly after her husband attacked her in her apartment).
Safe Homes Act
  • 765 ILCS 750.
  • Purpose of the Act.
    • Help victims flee unsafe rental housing.
    • Help victims make rental housing safe.
  • Application.
    • The Act governs:
      • Private-market rental housing; and
      • All Section 8 housing (both project-based and tenant based).
    • Public housing is not covered.
  • Provisions:
    • Domestic violence victim may vacate rental unit and break lease to protect physical safety and emotional well-being if:
      • Credible imminent threat of future harm.
      • The harm will occur on the premises.
      • Victim provides landlord or property manager with written notice of her fear 3 days before or after she vacates the premises. (No further proof necessary.)
    • Victim of sexual violence can break lease, even if she cannot establish imminent threat of future harm, if:
      • Sexual assault occurred on the premises; and
      • Victim provides landlord or property manager, within 3 days before or after she vacates the premises, with:
        • Written notice that she’s vacating the premises because of the sexual assault;
        • The date of the assault; and
        • One of the following types of evidence supporting the claim of sexual violence;
          • Medical, court, or police evidence of the assault;
          • Statement from employee of victim services or rape crisis center.
      • Sexual violence occurred within 60 days prior to the date the tenant gave the landlord written notice.
        • EXCEPTION: If the tenant could not reasonably give the notice because of reasons related to the assault – e.g., she was hospitalized or she was seeking shelter or counseling – then she must give the notice “as soon thereafter as practicable.”
    • Domestic violence victim may change locks on emergency basis to keep abuser out of home.
      • Written lease, perpetrator not on lease.
        • Ask landlord to change locks.
        • Request must be in writing, from everyone on lease, and demonstrate credible imminent threat of violence.
        • Request must also include evidence (e.g., police report, medical evidence, court record, or statement from victim services organization).
      • Written lease, perpetrator on lease.
        • Ask landlord to change locks.
        • Request must be in writing, from everyone on lease (except, of course, perpetrator), and demonstrate credible imminent threat of violence.
        • Request must also include plenary order of protection or no contact order granting victim exclusive possession of the premises.
      • Oral lease.
        • Ask landlord to change locks.
        • Request must be in writing, from everyone on lease (except perpetrator), and demonstrate credible imminent threat of violence.
        • Request must also include plenary order of protection or no contact order granting victim exclusive possession of the premises.
      • Landlord’s responsibilities.
        • Once he receives requisite notice, the landlord must, within the next 48 hours, change the locks or give the tenant permission to change the locks.
        • If the landlord doesn’t respond to request within 48 hours after receiving notice, tenant may change locks without permission.
        • In all cases, the tenant is responsible for the cost of the lock change.
      • Nondisclosure, confidentiality, and privilege provisions.
    • If landlord sues tenant for rent that accrued after she fled premises, tenant may assert the Safe Homes Act as affirmative defense.
Forcible Act
  • 735 ILCS 5/9-106.2.
  • Affirmative defense to forcible action if court finds that:
    • Case is based solely on tenant’s status as a victim of domestic or sexual violence as those terms are defined in the Safe Homes Act; or
    • Case is based solely on incident of actual or threatened domestic or sexual violence against tenant; or
    • Case is based solely upon criminal activity relating to domestic violence that has been:
      • Perpetrated by household member or guest; and
      • Against tenant; or
    • Case is based on demand for possession issued because a person the landlord barred pursuant to 735 ILCS 5/9-106.2 was in the premises, and the tenant did not let the barred person into the premises or he was there pursuant to a valid court order.
  • Landlord can defeat affirmative defense by showing that the tenant’s continued occupancy would pose actual and imminent threat to other residents or the landlord or his employees.
  • Landlord has right to bar individual who is not a member of the tenant’s household.
    • Procedure for barring an individual:
      • Notice to tenant.
      • Notice to barred individual.

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Using the Bankruptcy Code to Preserve Subidized Tenancies

Overview

  • When a debtor files for bankruptcy protection, an automatic stay bars the commencement or continuation of any judicial action to collect a pre-petition debt. 11 U.S.C. § 362(a)(1).
    • Unless otherwise ordered by the bankruptcy court, the automatic stay continues until the property in question is no longer property of the estate, the case is closed or dismissed, or (for a Chapter 13 proceeding) a discharge is granted or denied. 11 U.S.C. § 362(c).
    • A creditor may, however, seek relief from the automatic stay by filing a motion to modify. 11 U.S.C. § 362(c).
  • Bankruptcy Code can help subsidized housing resident facing eviction for:
    • Nonpayment of rent; or
    • Failing to maintain utility service.
  • Bankruptcy is a powerful tool for subsidized housing residents.
    • Main drawback to bankruptcy is its effect on credit rating. For most subsidized housing residents, however, preserving tenancy is far more important than maintaining good credit.

Chapter 13 Bankruptcies

  • Preserves federally-subsidized tenancy when a resident is facing eviction for nonpayment of debt.
  • Bankruptcy Code allows debtor to assume any “unexpired” lease agreement.
    • Lease “expires” when it terminates under state law.
      • Before termination notice expires, lease remains in effect.
      • Upon the entry of a judgment awarding the landlord possession of the premises, the lease expires.
      • Between expiration of the notice and entry of the judgment, it is impossible to say whether the lease has expired. Matter of Williams, 144 F.3d 544 (7th Cir. 1998).
  • Chapter 13 Plan.
    • Satisfy entire debt to landlord over 3-5 years.
    • May pay other creditors just a percentage of debt, but must protect landlord’s economic interest in the property by paying everything owed.
  • Automatic stay.
    • Prevents commencement or continuation of any action that could have been filed pre-petition.
    • Effective once tenant files BK petition, unless the petition was filed post-judgment in a forcible proceeding.
  • Modifying the automatic stay.
    • Landlord may file in the bankruptcy court a motion to modify the automatic stay and pursue eviction action.
    • Bankruptcy court will deny motion to modify if tenant filed petition before termination notice expired (and while lease remained in effect).
    • Bankruptcy court will grant motion if debtor has failed to pay post-petition debts (i.e., rent that accrued post-petition) to landlord.
    • Bankruptcy court has discretion to grant or deny motion to modify when tenant files petition after termination notice expires but pre-judgment. See Williams.
      • When possible, therefore, file Chapter 13 BK petition before termination notice demanding the rent due expires.
      • In one post-Williams case, the bankruptcy court denied a motion to modify the automatic stay even though the petition had been filed after the termination notice expired.
        • Mr. M, an elderly and disabled resident of a Section 8 project-based development, was facing eviction for nonpayment of one month’s rent ($78).
        • He came to LAF after the termination notice expired.
        • Since Mr. M had no strong legal defenses, LAF planned to assert an equitable defense on his behalf. The landlord then stated, however, that if Mr. M asserted an equitable defense, the landlord would inform the court that Mr. M had failed to maintain the gas service for which he was responsible. (The landlord could not have mentioned this failure but for the fact that Mr. M was raising an equitable defense, which arguably opened the door to issues outside the allegation of nonpayment set forth in the termination notice.)
        • LAF filed a Chapter 13 BK petition, assuming that even if the landlord would move to modify the automatic stay and the BK court granted the motion, by the time the case came back to court, Mr. M’s gas service would be restored and his equitable defense would be that much stronger.
        • Surprisingly, the BK court denied the motion to modify, noting that Williams gave BK courts discretion in these situations.
    • CHA residents may extend their lease agreements by requesting an informal grievance hearing before termination notice expires.
      • Timely request for hearing will keep lease in effect until grievance process is completed.
        • Gives you and tenant more time to determine whether bankruptcy is a necessary option.

Chapter 7 Bankruptcies

  • Eliminates pre-petition debt entirely.
  • Potentially useful to preserve a public housing tenancy when the resident’s facing eviction for nonpayment of rent.
    • Governmental units may not discriminate against debtors on the grounds that a debtor has filed for bankruptcy protection or failed to pay a debt that was discharged through bankruptcy. 11 U.S.C. § 525(a).
    • Does this mean that a PHA may not evict a tenant who discharged a rental arrearage through bankruptcy? 
      • The answer to this question is unclear in the Seventh Circuit.
      • Much safer to file for Chapter 13 protection and pay off debt over time.
  • Chapter 7 bankruptcies can help debtors maintain or restore utility service.
    • Utility company must restore service upon receiving notice of bankruptcy petition and security deposit.
    • LAF case:
      • Public housing resident faced eviction for failing to maintain gas service that was disconnected for nonpayment of bill that had accrued over ten year period and exceeded $10,000. Gas meter was in resident’s closet, and the gas company had to get a replevin order to enter the unit and remove the meter. LAF filed Chapter 7 Bankruptcy petition and got the gas company to restore the resident’s service before CHA’s termination notice expired, thereby curing the violation in a timely manner.

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Barred Lists and "No Trespass" Policies

The Issue

  • Property managers maintain lists of people who are barred from entering the property. 
  • Barred individual receives a “barment notice.’
  • The next time the barred individual enters the property, he may be arrested for criminal trespass, even if his visit is for a legitimate purpose.

Need for Barred Lists

  • Unusually high crime rates at many subsidized housing developments.
  • Some public housing developments have been characterized as open-air drug markets.
  • Residents don’t feel safe.
  • Ban lists are effective.
    • Some PHAs have, through the use of bar lists, reduced drug-related criminal activity by 50%.
    • The Annapolis Housing Authority reported a drop from 500 to 161 crimes per year after implementing ban list procedures.

Problems with Barred Lists

  • Management makes unilateral decision to place individuals on barred lists. 
  • No standards, so property managers have far too much discretion. Some people are barred without good cause (e.g., for littering, parking in front of a dumpster, being unemployed, owing money to the PHA, curfew violations).
  • Some bar lists are incredibly long. One list identified more than 2,300 banned individuals.
  • Many barred individuals pose no threat.
  • No policy for challenging decisions to place individual on bar list.
  • Barred individuals may have constitutionally protected relationships with tenants.
  • Problems highlighted by Virginia v. Hicks, 123 U.S. 2191 (2003).
    • Kevin Lamont Hicks challenged his conviction for criminal trespass after he was arrested for bringing diapers to his child’s mother. 
    • In 1991, a police officer spotted Hicks walking on a sidewalk adjacent to a “notorious” housing project owned by the Richmond Redevelopment and Housing Authority (RRHA). 
    • The officer knew Hicks was not welcome, and that Hicks had received a barment notice the previous year from the property manager. The notice, however, was not issued in response to any criminal activity, but rather to Hicks’s repeated visits to family members who lived on the property: his two children, along with their mother, and his mother and aunt. 
    • Because the sidewalk on which Hicks was walking had been ceded by the City of Richmond to RRHA, his presence constituted a violation of the barment notice. 
    • Hicks told the officer he was there to bring diapers to his baby, but he was arrested and convicted of criminal trespass. 
    • Hicks appealed his convictions, alleging that his First Amendment rights were violated when the government prevented him from visiting his family. 
    • The Virginia Supreme Court agreed, and said the trespass policy was an overbroad restriction on protected speech. Although the policy was designed to punish unprotected activities, it gave the property manager unreviewable authority to determine what constituted a legitimate business or social purpose, thus allowing her to prohibit speech that she found personally distasteful or offensive even though it may have been protected by the First Amendment. 
    • The U.S. Supreme Court unanimously reversed. Policy was not an overbroad restriction because Hicks had not shown that the policy “prohibited a ‘substantial’ amount of protected speech in relation to its many legitimate purposes.”  The Court left open the possibility, however, that on remand the policy could be challenged on other grounds.

Challenging Barred Lists

  • In Illinois, any discussion of barred lists starts with Williams v. Nagel, 162 Ill. 2d 542 (1994).
    • Individuals who had been barred by management from a Section 8 project-based development were arrested for and convicted of trespassing at this development.
    • These individuals challenged their convictions on the grounds that they had been invited to the development by one of the tenants.
    • The Illinois Supreme Court rejected this challenge on the grounds that the tenant could not extend a valid invitation to the barred individuals.
      • Lease agreement gave management broad authority to bar non-residents.
    • Court also rejected constitutional challenges to the barment notices on the grounds that there was no state action.
      • Private owner of the Section 8 development was not a state actor.
      • Fact that tenancy was federally-subsidized, and that property managers worked closely with the police when creating bar lists, was not sufficient to find state action. But see Anast, 956 F. Supp. at 798-99 (Former tenant sufficiently described symbiotic relationship between federal government and apartment owner and manager to satisfy threshold requirement of state action for protections of due process clause; tenant alleged that defendants participated in Section 8 Substantial Rehabilitation Program, and that defendants were subject to regulatory framework established by government, and that defendants consulted HUD about what to do with tenant.)
  • Challenging barred lists in the shadow of Nagel.
    • Best opportunity arises in the context of public housing.
      • Federal regulation governing the public housing program mandates that, “The lease shall provide that the tenant shall have the right to exclusive use and occupancy of the leased unit by the members of the household authorized to reside in the unit in accordance with the lease, including reasonable accommodation of their guests.” 24 C.F.R. § 966.4(d)(1).
      • Furthermore, “[e]ach public housing agency shall utilize leases which . . . do not contain unreasonable terms and conditions.” 42 U.S.C. § 1437d(l)(2).
        • Lease provisions that give landlords broad authority to bar non-residents (like the one at issue in Nagel) violate the federal statutory prohibition against unreasonable lease provisions.
      • Constitutional challenges.
        • State action.
          • PHA's are state actors.
          • Section 8 landlords are not state actors.  Williams v. Nagel, 162 Ill. 2d 542 (1994).
        • Claims under the due process clause of the 14th Amendment.
          • Procedural component – notice and opportunity to be heard.
          • Substantive component – policy infringes fundamental right.
          • Standard of review.
            • Rational basis if no fundamental right implicated.
            • Strict scrutiny if fundamental right implicated.
        • Fundamental rights implicated.
          • Freedom of speech.
            • Hicks killed that argument. 
            • Trespass policies are not overbroad infringements on protected First Amendment speech.
          • Freedom of movement.
            • Does it protect intrastate travel as opposed to interstate travel?
          • Right to intimate association.
            • This is the second part of freedom of association -- the first part being the right to “expressive association” protected by the First Amendment – and of the larger right to privacy.
            • Protected relationships attend the creation and sustenance of a family.

Model "No Trespass" Policy

  • Provides basic procedural protections, including notice and an opportunity to be heard. Barment notice should include reason for bar and procedures for appeal.
  • Demands sufficiently strong justification for bar. Doesn’t bar people for non-criminal activities like owing money to the PHA. 
  • Identifies offenses that are sufficient to invoke the “no-trespass’ policy. Takes away excessive discretion from property managers.

Evictions for Violation of a Trespass Policy

  • As even the dissent noted in Nagel, a tenant may face eviction for violating the landlord’s trespass policy. 162 Ill. 2d at 557-58 (Harrison, J., dissenting) (“If a tenant agrees to the landlord's restrictions as a condition of the lease, the restrictions have the force of contract, and their violation may place the tenant in breach, subjecting him to eviction.”).
  • Defending against such evictions.
    • Did the tenant receive notice that the individual had been barred?
    • Did the tenant actually allow the barred individual onto the property?
    • Is there a basis for challenging the landlord’s decision to bar the individual?

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Remaining Members of Tenant Households

The Problem

  • After the head of household dies or vacates the premises, PHAs and Section 8 landlords often move to evict or terminate tenant-based assistance to the remaining household members.

The Solution

  • The federal statute and implementing regulations governing the Public Housing and Section 8 Programs define family to include “the remaining member of a tenant family.” 42 U.S.C. § 1437a(b)(3)(a); 24 C.F.R. § 5.403(6).
  • When the head of household dies or vacates the premises, the remaining household members get to stay in the premises provided they are financially and otherwise eligible to remain.
  • Who qualifies for “remaining member” status?
    • The term “remaining member of a tenant family” is not defined in the federal statute or in the implementing regulations.
    • “The general trend has been to analyze each remaining family member’s succession claims on a case by case basis. . . .  Factors that have been considered to determine succession rights are whether: the parties are living together as a family unit, the length of time the parties were living together, whether the individuals’ income was factored into the annual certifications, and whether the family member was listed on the lease . . . .” Gill v. Hernandez, 865 N.Y.S.2d 843, 851-52 (N.Y. Sup. Ct. 2008).
    • One court recently defined “remaining member” simply to mean “a person who had actually been in occupancy as a part of the family unit at the time of the named tenant’s death.” Bronx 361 Realty, LLC v. Quinones, 907 N.Y.S.2d 98 (N.Y. Civ. Ct. 2010).
    • This definition comes from an earlier decision – Morrisania II Assoc. v. Harvey, 527 N.Y.S.2d 954 (N.Y. Civ. Ct. 1988) – that involved a Section 8 tenancy and recognized “a strong policy against the displacement of Section 8 occupants.” 
      • “[S]ection 8,” wrote the court, “guarantees continued protection to every legitimate member of the family unit in occupancy.”
      • “[N]o such family member should suffer eviction, dislocation and homelessness upon the death of the tenant of record.”
      • The Morrisania court noted that its definition of “remaining member” is “consistent with the original ameliorative purpose of the United States Housing Act of 1937, the comprehensive legislation of which Section 8 forms a part.”
  • A tenant’s minority status does not automatically disqualify her from claiming succession rights. See Peretta v. Wyles, 2010 WL 4028103 (N.J. Super. Ct. 2010).
  • Live-in aides are not entitled to remaining member status.

CHA's Policy Regarding "Remaining Members" in Public Housing

  • The policy is set forth in Section VI(F) of the ACOP.
  • The family must report “the death or departure of the head of household within 30 calendar days of the occurrence.” 
  • CHA uses a somewhat restrictive definition of “remaining family member.” 
    • The actual definition is set forth, along with the definitions of other terms, in Section XIV of the lease.
  • The person claiming remaining member status must:
    • Be at least 18-years-old and therefore old enough to contract. (If, however, the remaining member is an unemancipated minor, CHA may offer either a voucher or a public housing unit to a permanent legal custodial guardian.)
    • Have been identified on the lease as an authorized family member for at least the past three years.
    • Have had no unauthorized extended absences.
    • Have no rent and/or criminal activity violations.
  • Contesting CHA’s definition.
    • If the PHA’s policy regarding remaining members is contrary to federal policy, it may not be controlling on the issue of succession rights. See Gill, 865 N.Y.S.2d at 852 (PHA occupancy policy, which extended succession rights to the children of the head of household only if they joined the household as minors, was contrary to federal policy and therefore not controlling).
    • The requirement that the person must have been identified on the lease may be subject to challenge.
      • In the Section 8 context, the Quinones court held that “the touchstone of succession to a project-based Section 8 tenancy is the legitimacy of [the person’s] occupancy as a member of the family unit at the time of the tenant of record’s death, and not the accuracy of one or more HUD forms.” 907 N.Y.S.2d at 908-09 (extending remaining member status to deceased leaseholder’s widow even though her name did not appear on the lease.).
    • The “three-year” requirement may also be subject to challenge.
      • Federal law does not “require a minimum period of co-occupancy with the tenant of record to establish a legitimate occupancy. . . .  Thus, while the length of [a person’s] co-occupancy with the tenant of record bears on the legitimacy of [that person’s] occupancy as a member of the family unit, it is not dispositive of that central issue.” Quinones, 907 N.Y.S.2d at 909 (extending remaining member status to deceased leaseholder’s widow, even though she had resided in the unit for just five days before her husband died).
  • Four LAF cases:
    • In November 2008, Ms. J. moved into a public housing development to care for her 13-year-old brother and two minor nieces after Ms. J’s sister, the head of household, was murdered. CHA then moved to evict the entire family on the grounds that the remaining household members were all minors and thus unable to contract, and that Ms. J was not entitled to “remaining member” status because she was not an authorized household member at the time of her sister’s murder.
      • Ms. J’s sister was the head of a household that included Ms. J’s minor brother and the sister’s two young daughters. 
      • On November 17, 2008, the sister was murdered by her boyfriend’s jealous girlfriend. (It was a hit and run homicide, and the jealous girlfriend backed her car over Ms. J’s sister several times.)
      • Ms. J then obtained legal guardianship of her brother and two nieces, and she moved into the premises to take care of them. 
      • Ms. J applied to become the new head of household, but CHA denied this request and served her with a demand for immediate possession.
      • LAF defended Ms. J in the eviction action and urged CHA to settle the matter. LAF emphasized that Ms. J, a full-time student working toward her criminal justice degree, would be a model tenant, and that she was financially and otherwise eligible for subsidized housing. 
        • The survivors’ benefits of $1,382 per month that her nieces received constitute her household’s only source of countable income. 
        • Though Ms. Johnson was, as her nieces’ legal guardian, managing the $21,000 life insurance payment they received after their mother’s murder, this money had to be excluded from her annual income. See 24 C.F.R. 5.609(c)(3) (annual income does not include lump-sum insurance payments.) 
        • It also did not count as an asset when LAF determined her financial eligibility for services. 
        • LAF also noted that Ms. J could use the money to satisfy her late sister’s debt to CHA. Ms. J’s sister owed approximately $1,200 in rent when she was murdered.
      • After some litigation, LAF finally persuaded CHA that Ms. J should not be punished for trying to make sure that her younger brother and nieces (the remaining household members) did not get evicted from the only decent housing they could afford, and that CHA had an obligation to let her assume the lease.
    • In 2008, Mr. R faced eviction from CHA on the grounds that he was a trespasser, and his case went to trial before a jury. 
      • Mr. R had moved into the Harold Ickes development back in 1996, when his girlfriend, Ms. T, was the head of household. They lived together in a 3-bedroom unit with Ms. T’s two minor children, and Mr. R was identified on the lease agreement as an authorized household member. 
      • Ms. T and her two children vacated the premises a few years later, and Mr. R immediately informed management about their departure and tried to enforce his rights as a remaining household member by asking to become the new leaseholder. Management told him to sit tight but took no action. Several property managers then rotated through the development and nothing happened until 2006, when the latest manager told Mr. R to leave. 
      • A year later, this manager finally got around to issuing a notice to vacate and filing an eviction action. CHA contended that Mr. R had forged the 1996 lease agreement. In the alternative, CHA claimed that Ms. T had signed recertification documents in 2001 and 2002 that confirmed she was the sole occupant of the premises. Accordingly, CHA argued, Ms. T had removed Mr. R from her lease agreement prior to vacating the premises, and therefore precluded Mr. R from claiming "remaining member" status. 
      • The signatures on the recertification forms did not match Ms. T’s signatures on the 1996 lease agreement. Moreover, if one accepted the information set forth in the recertification documents, one would have to believe that Ms. T forced not only Mr. R but her two minor children to leave the premises, and that CHA then allowed her to remain in a 3-bedroom unit by herself.
      • We asserted a laches defense and argued that CHA had waived its right to deny Mr. R "remaining member" status by waiting so long to evict him. To prevail on this defense, however, we had to establish that CHA’s delay had somehow prejudiced Mr. R, and the delay had only benefitted him because it allowed him to remain in the premises rent-free for years. 
      • We also argued, therefore, that by sitting on its rights for so long CHA had effectively prevented Mr. R from calling Ms. T (who could have testified about the initial lease agreement and any subsequent recertifications) as a witness. Had CHA moved to evict Mr. R when he first notified the property manager about Ms. T’s departure, he could have called her to testify on his behalf because he knew where she was living. But he had no idea how to contact her now. 
      • The jury ruled in Mr. R’s favor. After the trial they told us that they believed that the 1996 lease agreement was authentic and that CHA had forged the recertification documents.
    • In 1996, Ms. S and her two children moved into a three-bedroom unit at the Harold Ickes public housing development where her uncle was the head of the household. The uncle added Ms. S and her children to his lease, but she was never given a copy of this agreement. The uncle subsequently vacated the premises. Several years later CHA tried first to lock Ms. S out and then to evict her. 
      • Though CHA never recertified Ms. S or charged her rent, it repeatedly recognized her status as a public housing resident. In August 2006, it even served her with a written notice that was addressed specifically to her, stated it was time for her annual housekeeping inspection, and referred to the provisions of her lease agreement. A month later, it responded to a work order that she submitted by providing her with a refrigerator to replace the one in the premises.
      • On October 18, 2006, while Ms. S was at work and her three children (she had her youngest after moving into the premises) were at school, police officers kicked down the apartment's front door while searching for someone who did not live in or visit the premises and was not found in the unit.
      • CHA then boarded up the entrance and refused to replace the door on the grounds that Ms. S was not an authorized resident, so she contacted LAF.
      • Only after LAF filed a complaint for emergency injunctive relief and damages in the amount of $2,420 (twice the market rent) did CHA come to its senses and let Ms. S and her children back into their apartment.
      • The following year, CHA gave Ms. S a demand for immediate possession and, when she refused to vacate the premises, filed a forcible action against her. LAF responded with counterclaims alleging retaliation and CHA’s earlier violation of the prohibition against lock-outs. CHA then agreed to dismiss this action and recognize Ms. S’s tenancy in exchange for her willingness to dismiss these counterclaims.
    • In 2003, Mr. W, a 49-year-old disabled man, was facing eviction from the Lathrop Homes public housing development because CHA considered him a squatter. His apartment was listed as vacant, he did not have a client number, and he was not even in “the CHA system.” But his deceased mother, who had been the head of household, had asked that he be added to her lease agreement back in 2001. CHA sat on this request for more than a year, and denied it only after Mrs. W. died.
      • Back in 2001, Mrs. W lived in the subject premises as the head of household. When she became ill and was transferred to a rehabilitation center, CHA sent a case manager to visit her and “ask who she wanted to be listed on her lease as a co-leaseholder or the household member that would have residual occupancy rights.” The case manager sent a letter to Lathrop’s property manager, conveying Mrs. W’s request that her son be added to her lease agreement. 
      • Sometime in June 2002, the property manager sent to CHA’s Occupancy Department a formal request that Mr. W be added to his mother’s lease agreement. Four months later Mrs. W died. 
      • On May 12, 2003 -- more than 17 months after Lathrop’s case manager had first informed the property manager that Mrs. W wanted to add her adult son to her lease agreement, and almost a year after the property manager first sent the occupancy department the request for the lease addition -- CHA denied the request, largely on the basis that Mrs. W had passed away. 
      • Once the request was denied, Lathrop’s property managers shifted into high gear, coercing him into signing an agreement stating that he would voluntarily vacate the premises. When he refused to honor this “agreement,” CHA served him with an immediate demand for possession.
      • After a year’s litigation, we convinced CHA to recognize Mr. W’s status as a remaining household member.

CHA's Policy Regarding "Remaining Members" in the Section 8 HCV Program

  • “Remaining member of tenant family” defined as a “[p]erson left in assisted housing who may or may not normally qualify for assistance on own circumstances (e.g., an elderly spouse dies, leaving widow age 47 who is not disabled).” CHA’s Administrative Plan, Glossary of Subsidized Housing Terms.
  • The entire policy regarding remaining members is set forth in Section 3-I.C of CHA’s Administrative Plan and provides as follows:
    • “The HUD definition of family includes the remaining member of a tenant family, which is a member of an assisted family who remains in the unit when other members of the family have left the unit.”
    • “Household members such as live-in aides, foster children, and foster adults do not qualify as remaining members of a family to assume the voucher.”
    • “If dependents are the only ‘remaining members of a tenant family’ and there is no family member able to assume the responsibilities of the head of household, see Chapter 6, Section 6-1B, for the policy on ‘Caretakers for a Child.’”

"Remaining Members" in the Section 8 Project-Based and Other Subsidized Housing Programs

  • HUD’s policy is set forth in Section 3-16 of Handbook 4350.3.
  • “If the qualifying person leaves the unit, a determination must be made as to whether the remaining member of the household will be eligible to receive assistance. Eligibility depends upon the type of project occupied and other issues.”
  • The following basic requirements for eligibility must be met for a person to qualify as a remaining member of a household:
    • The individual must be a party to the lease when the family member leaves the unit;
    • The individual must be of legal contract age under state law; and
    • The remaining family member is defined in Section 202 and Section 811 regulations as the surviving member or members of an elderly family or family with disabilities that was a party to the lease and living in the assisted unit with the now deceased member of the family at the time of his or her death.

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Jury Trial Practice

Compelling Appearances at Trial

Motions in Limine

  • Purpose.
    • Prevent jury from even hearing inadmissible testimony. 
    • Some testimony is so damaging that it will prejudice jury even if court sustains an evidentiary objection during trial and instructs jury to disregard what they heard. 
  • Timing. 
    • Motions may be presented right before the jury selection and without any advance notice – they are, after all, just evidentiary objections -- but if they’re at all complicated it is best to file them well before trial, give opposing counsel time to respond, and get courtesy copies to the judge before the hearing on your motion(s).
    • Prepare written orders stating whether the motion has been granted or denied.
  • Defendant's motions:
    • Bar evidence regarding violations not mentioned in the termination notice.
      • Due process and the federal regulations governing the subsidized housing programs listed below restrict the landlord to mentioning at trial only the allegations set forth in the notice. 
        • In the Section 8 New Construction, Substantial Rehabilitation, and State Housing Agencies Programs: “In any judicial action instituted to evict the family, the owner may not rely on any grounds which are different from the reasons set forth in the notice.” 24 C.F.R. § 880.607(c)(3)
        • In the Section 8 Loan Management Set-Aside Program, the Program for the Disposition of HUD-owned Properties, and the 221(d)(3) BMIR and 236 Programs: “In any judicial action instituted to evict the tenant, the landlord must rely on grounds which were set forth in the termination notice served on the tenant under this subpart.” 24 C.F.R § 247.6(b)
          • BUT BE CAREFUL! “The landlord shall not . . . be precluded from relying on grounds about which he or she had no knowledge at the time the termination notice was sent.” Id.
    • Bar evidence regarding history of your client’s arrests. 
      • Proof of arrests is inadmissible to impeach a witness or attack his character. People v. Bull, 185 Ill. 2d 179, 206 (1998). 
    • Bar evidence regarding felony convictions that are more than ten years old.
      • Evidence of a prior felony conviction is not admissible if more than ten years has elapsed since the date of conviction or the release of the witness from confinement, whichever is later. People v. Yost, 78 Ill. 2d 292, 295-96 (1980). 
      •  See also People v. Sanchez, 404 Ill. App. 3d 15, 18 (1st Dist. 2010) (Defense counsel's failure to object to admission of defendant's prior drug conviction that was more than ten years old was deficient performance, as element of ineffective assistance of counsel, in drug prosecution, as prior conviction was inadmissible and only served to damage defendant's credibility as a witness). 
    • Bar police reports. 
      • “Illinois courts have generally held that a police report is not admissible, and that the mere attempt to introduce such an exhibit may be considered reversible error.” Camco v. Lowery, 362 Ill. App. 3d 421, 434 (1st Dist. 2005). 
      • Plaintiffs like to argue that the new rules of evidence allow the introduction of police reports. 
        • See IRE 803(8), allowing as an exception to the hearsay rule the introduction of reports and statements from public offices and agencies setting forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . unless the sources of information or other circumstances indicate lack of trustworthiness.” 
        • The Committee Commentary to the IRE, however, state that “the Committee incorporated into the Illinois Rules of Evidence the current law of evidence in Illinois whenever the Illinois Supreme Court or the Illinois Appellate Court had clearly spoken on a principle of evidentiary law within the last 50 or so years.” 
        • Camco, therefore, is still good law. 
    • Bar evidence regarding gang-affiliation. 
      • The prejudicial effect of testimony regarding gang-affiliation far outweighs its probative value. See United States v. Richmond, 222 F.3d 414, 417 (7th Cir. 2000) (“Evidence of gang involvement must be considered carefully to avoid undue prejudice.”) 
    • Bar documents referenced but not produced in discovery responses. 
  • Plaintiff's motions: 
    • Bar evidence regarding the defendant’s source and amount of income.
    • Bar evidence regarding the effect that an eviction from subsidized housing will have on the defendant and/or her children. 
      • Responding to this motion:
        • Although you cannot argue to the jury that the defendant will likely become homeless if evicted from subsidized housing, you should be able to mention that: 
          • The lease automatically renews itself at the end of every term unless it is terminated for good cause,
          • This assistance runs with the unit, and  
          • Your client pays a reduced rent based on a reduced income based on her household income. 
        • All these facts are set forth in the lease agreement, which Plaintiff must introduce into evidence as part of its prima facie case.
        • During deliberations, the jury will put these facts together to draw the necessary conclusion. 
    • Bar evidence that the defendant or her hoursehold member or guest was not convicted of the crime for which the defendant is facing eviction.
      • The plaintiff will argue that an acquittal is not admissible in civil action because a verdict represents only the criminal court’s finding that guilt was not established beyond a reasonable doubt, whereas in a civil action recovery may be had upon a preponderance of the evidence.
      • Responding to this motion:
        • The consideration set forth above “should go to the weight rather than the admissibility of evidence, since the failure of the state to prove guilt may have some tendency to prove that the accused was not, in fact, guilty.”  W.E. Shipley, Annotation, Conviction on Appeal as Evidence of Facts on which It Was Based in Civil Action, 18 A.L.R. 1287 (2005). 
        • Acquittal is relevant, because the defendant’s arrest was the first step in a criminal prosecution. If the defendant is precluded from informing the jury that he was acquitted, the jury will presume that he was convicted. 
        • Court can ensure that acquittal is not accorded too much weight by instructing the jury that: 
          • The acquittal does not establish innocence, but only that guilt was not proved beyond a reasonable doubt; 
          • The plaintiff is entitled to possession if it establishes the defendant’s guilt by a preponderance of the evidence. 
  • Responding to plaintiff’s violation of order in limine. 
    • Don’t be dramatic. 
    • Do it outside presence of jury so you don’t draw their attention to harmful evidence.

 

Voir Dire

  • Overview
    • Approximately 40 prospective jurors (venirepersons) will be ushered into the courtroom. Each one will have completed a card with some basic information. Jurors will be selected at random and asked to sit in the jury box.
    • Each party is allowed to strike five jurors without good cause by using peremptory challenges. 735 ILCS 5/2-1106.
    • An unlimited number of venirepersons can be stricken for cause. 735 ILCS 5/1105.1
      • Establishing cause can be difficult.
      • If you think you may have cause to strike a venireperson, question her carefully until you can get her to admit that she cannot be unbiased.
    • Whenever a venireperson is stricken or excused, another is selected at random from the jury pool. This process continues until a jury is empaneled.
    • The judge questions venirepersons first. S. Ct. Rule 234. When he is done, he hands the venirepersons’ cards to the plaintiff’s attorney, who continues the questioning until he decides whether to accept or strike the venireperson.
    • If the plaintiff's attorney tries to strike the venireperson for cause, the defendant gets a chance to show that no good cause exists.
    • If the plaintiff's attorney accepts the venireperson, the defendant gets to continue the questioning until they decide whether to also accept or strike the venireperson.
  • Questions to ask:
    • In every case:
      • Do you own your home or rent?
      • Do you own rental property?
      • Are you employed? In what capacity?
      • Have you ever been involved in an eviction action? If so, were you the plaintiff or defendant? What happened?
      • What do you know about LAF?
      • What do you think about the fact that LAF provides free legal representation to poor people? 
    • In every subsidized housing case:
      • Are you familiar with the subsidized housing program at issue?
      • What do you know about the program?
      • What do you think about the program?
      • Have you ever had any experiences or contact with a resident of subsidized housing? What was your experience?
      • Do you have any feelings, either positive or negative, about subsidized housing residents? 
    • When client is facing eviction for child’s misconduct:
      • Do you have children?
      • Do you always know what your children are doing?
    • When police officer will testify against your client:
      • Do you know any police officers?
      • Have you had any experiences with the police?  Could you describe it?
      • Do you think a police officer is more likely to tell the truth than an ordinary citizen?
    • When client is facing eviction for drug-related or violent crime:
      • Have you ever been the victim of a crime?
      • If the venireperson is a crime victim, question him or her carefully and respectfully about the crime.

Batson Challenges

  • Purpose.
    • Prevent opposing counsel from using peremptory challenges to intentionally exclude jurors based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986) (in criminal case, 14th Amendment’s equal protections clause prohibits prosecutor from using peremptory challenge to exclude prospective juror solely on basis of that juror’s race). 
  • Applicability to forcible actions. 
    • “The rule announced in Batson – that the State may not use peremptory challenges to purposefully exclude jurors based on their race -- applies with equal force to private litigants in civil actions.”  Mack v. Anderson, 371 Ill. App. 3d 36, 43 (1st Dist. 2006) (in medical malpractice action, defendant’s use of five peremptory challenges to exclude five black jurors violated Batson). 
  • Procedure. 
    • Object during jury selection process (i.e., before agreeing that jury is acceptable). 
    • Allege that opposing counsel’s use of peremptory challenges violates your client’s right to equal protection. 
    • Request Batson hearing. 
  •  Batson Hearing.
    • Informal. 
      • Attorneys are not sworn in. 
      • Attorneys are not subject to cross-examination. 
    • Three step process for evaluating claims of discrimination in jury selection. 
      • Make prima facie case that opposing counsel exercised peremptory challenge on basis of race by focusing on any of the following seven relevant factors. 
        • Your client and the excluded juror are the same race. 
        • Pattern of strikes against members of one race. 
        • Disproportionate use of peremptory challenges against members of one race. 
        • Level of representation of minority race in venire is significantly higher than representation of that group in jury. 
        • Opposing counsel’s statements during voir dire indicate racial bias. 
        • Excluded venirepersons shared race as only common characteristic. 
        • Race of your client, opposing party, and witnesses demonstrate that opposing counsel had motive for excluding venirepersons based on race. 
      • Burden shifts to opposing counsel to articulate race-neutral reason for excusing the juror. 
        • Explanation for excusing the venireperson need not rise to level of challenge for cause. 
        • Nevertheless, mere assertion of nondiscriminatory motive will not suffice. 
        • Explanation must be clear and reasonably specific, contain legitimate reasons for exercising the challenge, and be related to the case. 
      • Trial court determines whether you have met burden of establishing intentional discrimination. 
        • Court evaluates opposing counsel’s stated reasons for using peremptory challenge. 
        • Court evaluates contention that these reasons are pretextual. 
        • Best evidence will often be demeanor of the attorney who exercised the peremptory challenge. 
        • Trial court’s determination will be overturned if it is clearly erroneous. Mack, 371 Ill. App. 3d at 46 (overturning trial court’s determination that defendant’s decision to use five peremptory challenges to exclude five black venirepersons did not violate Batson.) 
    • Preserve issue for appeal by ensuring that the race of the challenged juror(s) and the race of all the other jury members are a matter of record.

Motion to Exclude Nonparty Witnesses

  • Always make this motion. 
  • Ensures that witnesses do not get opportunity to change their testimony to corroborate what another witness has said on the stand.

Opening Statement

  • Have a clear theme. 
  • Use plain language. 
  • As a general rule, do not discuss the law. 
  • Stick to the facts (e.g., the evidence will show, the witness will testify, etc.)
  • Admit bad facts up front.
  • Do not promise more than you can deliver.
  • Be concise.

Motion for Directed Verdict

  • Purpose.
    • Win case before putting on defense by arguing that Plaintiff has failed to establish prima facie case.
    • If Plaintiff failed to establish a necessary element of its case, you do not want to give Plaintiff a chance to supply the missing element while you are presenting your client’s defense.
  • Procedure. 735 ILCS 5/2-1202(a).
    • Present (in writing if possible) at close of Plaintiff’s case.
    • Renew at end of trial.
    • Renew in post-trial motion. Otherwise, it’s waived.

Resting at Close of the Plaintiff's Case

  • Extremely unusual but sometimes effective strategy.
  • Useful if you have been able to establish your defense through cross-examination, and you don’t want to give opposing counsel an opportunity to strengthen its case through cross-examination of your witnesses.

Offers of Proof

  • Purpose.
    • If the court sustains opposing counsel’s objection to your line of questioning and you believe the court erred, make an offer of proof. This will preserve your right to challenge the court’s error on appeal.
  • Procedure.
    • Make your offer of proof outside the jury’s presence.
    • Put the witness on the stand and ask her the questions you would have asked had opposing counsel not objected.

Jury Instructions

  • 735 ILCS 5/2-1107; S. Ct. Rule 239.
  • Illinois Pattern Instructions (IPIs).
  • Missing evidence instruction. IPI 5.01.
    • “[A]llows the jury to infer that any evidence not offered but within the control of a party is adverse to that party.” Lisowski v. MacNeal Memorial Hosp. Assoc., 381 Ill. App. 3d 275, 284 (1st Dist. 2008).
    • If a litigant requests the instruction because the opposing party has failed to produce a certain witness, the court should consider whether:
      • The missing witness was under the control of the party adversely affected by the instruction;
      • The witness could have been produced by reasonable diligence;
      • The witness was not equally available to the party who requested the instruction;
      • A reasonably prudent person would have produced the witness if he or she believed the testimony would be favorable; and
      • There was no reasonable excuse for failing to produce the witness. Id.

Closing Argument

  • Apply law to facts.
  • Be flexible. Respond directly to Plaintiff’s closing.

Verdict

  • General verdict.
  • Special interrogatories. 
    • Purpose.
      • “A special interrogatory serves ‘as guardian of the integrity of a general verdict in a civil jury trial.’ It tests the general verdict against the jury's determination as to one or more specific issues of ultimate fact.” Simmons v. Garces, 198 Ill. 2d 541, 555 (2002).
    • Either party may ask the jury “to find specially on any material question or questions of fact submitted to the jury in writing.” 735 ILCS 5/2-1108.
      • “A special interrogatory is in proper form if (1) it relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with some general verdict that might be returned.” Simmons, 198 Ill. 2d at 555.
    • “When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” 735 ILCS 5/2-1108.
      • “Special findings are inconsistent with a general verdict only where they are ‘clearly and absolutely irreconcilable with the general verdict.’” Simmons, 198 Ill. 2d at 555-56.
    • Should you draft a special interrogatory in a forcible action?
      • Probably not.
      • It’s not often in the tenant’s interest.

Polling the Jury

  • Only necessary if you want to be sure that the verdict represents every jury member’s vote.

Speaking to Jurors after the Trial

  • Always request the court’s permission to speak to the jurors after the trial.
  • If the court grants your request, the court will inform the jurors that you would like to speak to them outside the courtroom if they have time.
  • Speaking to jurors about the trial and your performance is incredibly informative.

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