Federally Assisted Housing

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Author: Revisions contributed by, Housing Law Project of the Legal Assistance Foundation of Metropolitan Chicago
Last updated: August 2011

General

This section outlines housing assistance available through programs established by federal and state legislation. The assistance may take the form of leasing of public housing or rent subsidies for private housing.

The procedural requirements and defenses applicable to private housing evictions apply to federally subsidized housing. Some additional procedural rules and defenses also apply.

Types

Different rules and procedures apply to different types of subsidies, although generally, tenants pay 30% of their adjusted income for rent (but PHAs must set a minimum rent of $50). In the public housing and Section 8 project-based programs, the lease agreement automatically renews itself at the end of every term and may be terminated only for good cause. But in the Section 8 Housing Choice Voucher Program, a tenant-based assistance program, the lease may be terminated without good cause at the end of the initial term or at the end of any successive term. 

The different types include:

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Public Housing Programs

General

With the passage of the United States Housing Act, Congress enacted the conventional public housing program (42 USC §1437, et seq).  Pursuant to this program, housing is owned by a local public housing authority (PHA), which administers the program.

Eligibility

The following individuals are eligible for public housing, provided their income does not exceed 80% of the median income for the metropolitan area and they do not have assets in excess of the limitations established by the local PHA:

  • families (including a single individual)
  • the elderly
  • handicapped persons
  • disabled persons
  • the remaining members of a tenant family
  • displaced persons

Note: Single persons who do not fall into any of the above categories are ineligible unless eligibility is specifically authorized by an Office of Housing and Urban Development (HUD) field office.

Families –The regulations do not require that individuals be related by blood or marriage to constitute a family. An unmarried couple, a pregnant woman, and an adult with physical custody (not necessarily legal custody) of a child may qualify. (PHA often requires some proof that custody is legal and permanent; similarly, unmarried couples need, at least, evidence of a long term stable relationship).
 

Handicapped – A person is considered to be handicapped if he or she has a mental or physical impairment that is expected to be of indefinite duration, which substantially impedes his or her ability to live independently, and is of such a nature that his or her ability to live independently could be improved with more suitable housing.  Although alcoholics and drug addicts in recovery are specifically included in the federal Fair Housing Act, they are specifically excluded from admission or continued occupancy in public housing.

Disabled Person – A disabled person is a person who is disabled under the Social Security Act, or who has a developmental disability as defined by the Developmental Disabilities Assistance and Bill of Rights Act.

Displaced Person – A displaced person is a person displaced by governmental action, or whose dwelling has been extensively damaged or destroyed as a result of a federally recognized disaster.

Elderly Family – An elderly family is a person at least 62 years of age, or a family whose head or spouse is an elderly person. Some housing is available to elderly persons aged 60 and older.

Remaining Member of a Tenant Family – A remaining member is a member of a family listed on the lease who continues to live in the apartment after the head of household has died or vacated the premises.  If the remaining member was on the lease, he or she can usually remain in the apartment.  Foster children and live-in-aides cannot be remaining household members.  The PHA must issue a new lease to the remaining member, provided the remaining member is otherwise eligible.

Preferences

Federal preferences have been eliminated.

Public housing authorities may establish their own system of preferences.  The client may need to ask for the PHA's preferences.  The preferences adopted by the PHA may not violate other laws, for example, the Fair Housing Act.

Computation of Rent

Rent includes payments to the PHA and the utility allowance.  Tenants in public housing must pay as rent the highest of the following amounts:

  • 10% of the family’s gross income
  • 30% of the family’s gross adjusted income or
  • for a family receiving welfare payments, the part of the payment specifically designated to meet housing needs or
  • $50, unless the PHA has obtained a waiver to increase the minimum rent or the resident requests a hardship exemption because of inability to pay the minimum rent.  42 USC §1437a(3)(A-B).

Countable Income

To determine a family’s income, anticipated annual income is used.  Income includes income from non-excludable assets, wages and all other types of compensation, Social Security and other benefit payments, annuities, pensions, disability benefits, welfare, alimony and child support, net income from a business, and regular gifts.

Exclusions From Income

Income does not include foster care payments, inheritances and insurance payments, medical expense reimbursements, educational scholarships, and veterans benefits used for tuition, fees, books, equipment, materials, supplies, and transportation, special armed forces pay, certain Supplemental Security Income, HUD and other public assistance payments, sporadic or temporary income, gifts, or amounts excluded by federal statute.  Amounts specifically excluded under other federal statutes include, inter alia: food stamps, Low-Income Home Energy Assistance Program payments, and payments received under Title V of the Older Americans Act of 1965.

Income is further reduced by subtracting the following deductions under 42 USC §1437a(b)(5):

  • $480 for each family member under 18, handicapped, disabled, or a full-time student
  • child support payments made for a child not residing in the household up to $480 per child
  • spousal support payments to a spouse not residing in the household up to the lesser of $550 or the amount that the family member has a legal obligation to pay
  • expenses of child care for children under 13 years of age that enable a family member to go to school, work, or look for work after losing a job
  • a handicap assistance expense equal to the lesser of the excess of handicap assistance expenses over three percent of annual income, or the amount an adult family member will earn because handicap assistance is available
  • $400 per household for any elderly, handicapped, or disabled family member and
  • unreimbursed medical expenses that exceed three percent of the annual family income for an elderly handicapped, or disabled family member

Note: A family that suffers a decrease in income is entitled to a decrease in rent effective at the latest on the first of the month following reporting.

Grievance Hearing

Grievance hearings are available only to public housing residents who want to contest any adverse action taken by the PHA, e.g., termination of tenancy (though grievance hearings are not available to tenants who are facing eviction for drug-related or violent crimes), failure to allow a pet, failure to make repairs, rent recertification, and disclosure of confidential information.  The process need not be exhausted to pursue judicial remedies. (For Grievance rights related to eviction, see Eviction and Termination, infra.)

The PHA must have a written grievance procedure that affords the tenant the right to receive advance written notice of the proposed adverse action. The tenant may challenge this action by submitting to the PHA a timely written request for an informal conference or hearing. 

After the informal conference, the PHA must provide a written summary to the tenant.   If the tenant is unhappy with the resolution, the tenant may appeal by filing a formal grievance.  The hearing officer cannot be the person who made the original decision or be supervised by the person who made the original decision.  The tenant has a right to review the file and all other evidence.  The burden of proof is on the PHA.  The PHA must consult with tenant councils as to their selection of hearing officers.  After a hearing, a written decision that must include findings of fact is issued.  24 CFR §§966.56;  24 C.F.R. §966.57.

Elderly High-Rise and Housing Project

Elderly persons or families who want to obtain an apartment in an elderly high-rise must file an application with the local PHA.  Applicants may apply ahead of time (six months to a year before their 62nd birthday).

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Federal Assistance for Private Housing

General

With the passage of the Housing and Community Development Act of 1974, Congress enacted the Section 8 Housing Program (42 USC §1437f).  Section 8 programs include:

  • tenant-based assistance
  • new construction
  • substantial rehabilitation
  • moderate rehabilitation
  • set-aside for apartment complexes with HUD-insured and HUD-held mortgages
  • Section 8 for the disposition of HUD-owned projects and
  • Section 8 with Section 202 housing

Section 8 Tenant-Based Assistance

General

Section 8 tenant-based assistance provides "housing choice vouchers" to eligible individuals and families who live in private housing.  Congress enacted the voucher program in 1983.  A similar program, the Section 8 existing housing certificate program, has been phased out.  The 1998 Housing Act required that Section 8 certificates be converted into vouchers.

A voucher holder finds an acceptable apartment and a private landlord who is willing to participate in the program.  The PHA then inspects the unit.  If the apartment is approved, the landlord contracts directly with the PHA.  The PHA pays a Section 8 subsidy to the landlord pursuant to that contract. The landlord also must sign a one-year lease with the voucher holder. Vouchers allow low-income tenants to retain rental assistance when they move from their current dwelling unit to another unit.

Computation of Rent

Tenants under the voucher program may pay more than 30% of their adjusted income for rent.  The limit for the tenant's share of the rent is 40% of adjusted gross income at the time the family initially receives tenant-based assistance. 24 CFR §982.508.  Landlords may charge more than the fair market rent set by HUD.

HUD determines the "payment standard" for dwelling units of various sizes in each market area.  The payment standard must be no less than 90% and no more than 110% of fair market rents in the area.  If the rent plus any utility allowance for a dwelling unit does not exceed the payment standard, the tenant pays the greatest of the following amounts:

  • 10% of the family’s gross income
  • 30% of the family’s gross adjusted income or
  • for a family receiving welfare payments, the part of the payment specifically designated to meet housing needs

Under those circumstances, the PHA pays the landlord a monthly housing assistance payment equal to the difference between the "gross rent" and the tenant's payment.  The gross rent is the rent charged by the landlord plus any utility allowance, representing the amount of tenant-paid utilities.

If the gross rent exceeds the payment standard, the PHA pays the landlord a monthly housing assistance payment equal to the difference between the payment standard and the greatest of the amounts under the three options above.  The tenant pays the difference between the gross rent and the monthly housing assistance payment.  In that situation, the tenant pays more than 30% of the family's adjusted gross income.  42 USC §1437f(o)(2).

Tenant Elegibility

Tenant eligibility requirements under the Housing Choice Voucher Program are the same as those set forth above for public housing.

Applicants under the voucher program are eligible if they are one of the following:

  • very-low income family
  • lower-income family that has been displaced by rental rehabilitation activity under the Rental Rehabilitation Program or
  • have been continuously assisted under the Housing Act of 1937

A "very low-income family" is a family with an annual income that does not exceed 50% of the median income for the area, as determined by HUD.
A "lower-income family" is a family with an annual income that does not exceed 80% of the median income for the area.

Tenant Selection

A PHA may deny or terminate voucher assistance if:

  • the applicant currently owes rent or other amounts to the PHA or another PHA in connection with Section 8 or public housing assistance;
  • a household member has been evicted from federally assisted housing for drug-related criminal activity within 3 years from the date of eviction;
  • the applicant has not reimbursed the PHA or another PHA for any amounts paid to an owner under a certificate or voucher for rent or other amounts owed by the family under the lease or for a vacated unit;
  • the applicant has committed any fraud in connection with a federal housing assistance program;
  • the applicant has breached an agreement to pay amounts owed to a PHA or amounts paid to an owner by a PHA;
  • a welfare-to-work family fails, willfully and persistently, to fulfill its obligations under the welfare-to-work voucher program;
  • the applicant has engaged in drug-related or violent criminal activity; or
  • the applicant has violated any family obligation as defined under the regulations.

Section 8 Project-Based Assistance

Under the Section 8 Project-Based Assistance Programs, HUD enters into housing assistance payments (HAP) contracts with the private owners of housing complexes or buildings. During the term of these contracts, the apartments are subsidized, so the Section 8 rental assistance runs with the units, and tenants who reside in these units get the benefit of the subsidies. As in the public housing program, the lease agreements automatically renew themselves at the end of each term and may be terminated only for good cause. When the HAP contracts expire, owners my “opt-out” of the Section 8 Program, but the displaced residents receive Section 8 vouchers that they can use in the private housing market, or enhanced vouchers that allow them to remain in their units.

The following Section 8 programs use the project-based assistance model:

  • New Construction
  • Substantial Rehabilitation
  • Set-Aside for Projects with HUD-Insured or HUD-Held Mortgages
  • Section 8 Assistance for Disposition of HUD-Owned Projects
  • Section 8 Assistance for State Housing Agencies
  • Moderate Rehabilitation

New Construction, Substantial Rehabilitation, and Moderate Rehabilitation Programs – These are rental assistance programs (24 CFR Part 880, New Construction; 24 CFR Part 881, Substantial Rehabilitation; and 24 CFR Part 882, Moderate Rehabilitation). Under these programs, HUD contracts directly with the owner of a housing unit to pay the difference between the contract rent and the tenant’s share of the rent.

Set-Aside Program for Projects with HUD-Insured or HUD-Held Mortgages - This program is a rental subsidy program providing rental subsidies to existing multifamily Section 221(d)(3), Section 236, and Section 202 projects (24 CFR §§886.101 – 886.132).

Property Disposition Set-Aside Program – This program is a rental program in connection with the sale of HUD-owned housing (24 CFR §§886.301-886.337), and is used in conjunction with the sale of multifamily apartments foreclosed by HUD.

Section 8 Assistance for State Housing Agencies - HUD provides Section 8 subsidies to state housing finance agencies (24 CFR Part 883).  The state agency provides financing for construction or rehabilitation of housing developments.  Federal Section 8 funds are passed through to the state agencies to provide rental subsidies to developers of those projects.  In Illinois, the housing finance agency is the Illinois Housing Development Authority (IHDA).

Eligibility, Rent Computation, and Tenant Selection – Tenant eligibility and rent computation rules for subsidized housing are basically the same as criteria for public housing.  Each owner of a Section 8 development is responsible for selection of tenants.  42 USC §1437f(d)(1).

NOTE: Annual income and rent for subsidized housing tenants are computed in the same manner as they are computed for public housing tenants.  The income exclusions are the same, except for lump sum additions to family income.  The deductions from family income are identical to the deductions allowed under the public housing program.

FHA Subsidized Housing

The Federal Housing Administration (FHA) provides private developers with mortgage insurance and interest subsidies to assist in the development of affordable housing.  Housing assisted by FHA, a division of HUD, includes the Section 221(d)(3), Section 236; and Section 202 programs.

Section 221(d)(3) Program - This program provides mortgage insurance and an interest subsidy that reduces interest paid by the developer to three percent.  The interest subsidy was designed to allow the developer to offer lower rents.  The housing project is subject to HUD regulation as to tenant eligibility and rent computation during the term of the mortgage.

Section 236 Program – This program was enacted as part of the Housing and Urban Development Act of 1968.  Under this program, an owner obtains an FHA-insured market rate project mortgage and is obligated to make loan payments to the lending institution as though the loan had a one percent interest rate.  HUD makes the remainder of each payment directly to the lender.  The owner must charge rents equal to 30% of adjusted tenant incomes, but rents cannot be higher than market rents nor lower than "basic rents" (i.e., the rents that would be charged if the mortgage interest rates were actually one percent).

Section 202 Program – This program was enacted as part of the Housing and Urban Development Act of 1959 (12 U.S.C. §1701q).  Under this program, HUD provides direct loans at below market rates to private non-profit corporations, limited-profit sponsors, consumer cooperatives, and public bodies that provide housing for elderly or handicapped families.

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Eviction and Termination

General

Tenants in public housing and other federally subsidized housing have additional rights and remedies that are set forth in the applicable federal statutes and regulations. Public and subsidized housing evictions must also meet the procedural requirements for forcible entry and detainer actions under Illinois law. 

Basic Principles of Good Cause

Isolated instances of objectionable conduct are not a sufficient basis to terminate a subsidized tenancy. Only a material violation of a lease provision can justify eviction, and there must be evidence that the tenant was aware or acquiesced in the alleged violation.  Mid-Northern Management v. Heinzeroth, 234 Ill.App.3d 240, 599 N.E.2d 568, 174 Ill. Dec. 784 (2d Dist. 1992).

A court should consider all the circumstances presented in determining material noncompliance with the lease, including such factors as past and overall compliance with the lease.  American National Bank and Trust Co. v. Dominick, 154 Ill. App. 3d 275, 507 N.E. 2d 512, 107 Ill. Dec. 599 (1st Dist. 1987).

In addition, under the Rehabilitation Act, Section 504, federally assisted housing providers have a special duty to make reasonable accommodations to persons with disabilities, including taking affirmative steps to accommodate the disability.

Public Housing

Good Cause Eviction Provisions

Public housing authority may not terminate the tenancy or refuse to renew the lease except for serious or repeated violation of material terms or conditions of the lease or for other good cause.  A serious or repeated violation of material terms of the lease may include a failure to make payments due under the lease or to fulfill the tenant obligations set forth in §966.4(f).  42 USC §1437d(l); 24 CFR §966.4 (1) (2) (i).

Special Criminal Activity Provisions

Each public housing agency shall utilize leases which provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest under the tenant’s control, shall be cause for termination of tenancy.  42 USC §1437d(l).

Either of the following types of criminal activity by the tenant, any member of the tenant’s household, a guest, or another person under the tenant’s control, shall be cause for termination of tenancy:

  • Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the PHA's public housing premises by other residents; or
  • Any drug-related criminal activity on or off the premises. 24 CFR §966.4(1) (2) (ii).

Notice of Termination of Tenancy in Public Housing

24 CFR §966.4(l)
42 USC §1437d (l)

Lease termination notice. The PHA shall give written notice of lease termination of:

  • 14 days in the case of failure to pay rent
  • a reasonable time considering the seriousness of the situation (but not to exceed 10 days) when the health or safety of other residents or PHA employees is threatened and
  • 30 days in any other case

The notice must include sufficient specificity to enable the tenant to prepare a defense.  This means it has to list specific facts, dates, as well as the specific section of the lease that was violated.  Escalera v. New York City Housing Authority, 425 F. 2d 853 (2d Cir. 1970).

The notice must also inform the tenant of their right to a grievance hearing.

The Illinois Forcible Entry and Detainer Act permits a PHA to bring an expedited eviction action against a tenant based on certain criminal conduct, such as trafficking of controlled substances.  735 ILCS 5/9-118.  A written notice of demand for immediate possession may be served at the time of service of the summons.

Grievance

In public housing, tenants must be given an opportunity to contest a termination of tenancy through the public housing authority’s grievance procedure.  42 USC, 1437d (k), 24 CFR §966.51.

Criminal Activity Exception.  Evictions based on certain types of tenant criminal activity may be excluded from the grievance requirement. These include drug-related criminal activity on or near the premises or criminal activity that threatens the health, safety, or peaceful enjoyment of the premises of other tenants or PHA employees.  24 CFR §966.51 (a) (2)

Expedited Grievance Procedure.  A PHA may establish an expedited grievance procedure for a grievance that involves termination of tenancy based on drug-related criminal activity on or near the premises or criminal activity that threatens the health, safety, or peaceful enjoyment of the premises of other tenants or PHA employees.  24 CFR §966.55(g).

Tenant must request the grievance.  The tenant must request a grievance.  The PHA may establish short time-frames for such requests.  It may not be clear on the notice of termination of tenancy what the exact time-frame is.  In general, tenants request an informal conference with PHA staff first.  In the event the matter is not resolved, the tenant must request a formal hearing.  It is very important to advise the tenant to request the grievance in a timely manner.

The PHA cannot take judicial action to evict the tenant until a written decision on the grievance has been made.

The PHA cannot override a decision of the impartial decision-maker unless it is contrary to law.

The PHA need not issue another notice to terminate the tenancy if the hearing decision is unfavorable to the tenant.

Section 8 and FHA Housing

Project-Based and FHA Programs

An owner of FHA or Section 8 project-based assisted housing may only terminate a tenancy or refuse to renew a lease based on good cause.  Tenants in those developments have (1) the right to timely and adequate notice of the grounds for termination of their tenancies or subsidies,(2) the right to be notified that they may meet with management within 10 days of receiving the notice  and (3) the right to a judicial hearing on the allegations.  Subsidized housing evictions must comply with federal statutory and regulatory requirements, and state forcible entry and detainer provisions.

Regulations governing evictions in FHA housing, 24 CFR Part 247, provide that a landlord may not terminate a tenancy except on the following grounds:

  • material noncompliance with the rental agreement
  • material failure to carry out obligations under any state landlord and tenant act
  • criminal activity or alcohol abuse or
  • other good cause
  • Separate sets of regulations apply to evictions in Section 8 project-based assistance programs.  Regulations for Section 8 New Construction are found at 24 CFR § 880.607.
Section 8 Voucher Program

The 1998 Housing Act eliminated the right to continued tenancy after the expiration of the term of the lease for Section 8 voucher holders.  The initial term of the lease is one year.  The Act allows a landlord to terminate the tenancy of a voucher holder tenant at the end of a lease term without establishing good cause, provided proper notice is given.  42 USC §1437f(o)(7).  After the lease expires, a month to month tenancy may be created.  This change in federal law permits a private landlord to terminate the voucher holder's month to month tenancy with a 30 day notice. Note that a voucher holder may then use his or her voucher to move to another unit.

Grounds for Termination

24 CFR §982.310

During the term of the lease, the owner may not terminate the tenancy of a voucher holder, except on the following grounds:

  • serious or repeated violation of the terms or conditions of the  lease
  • violation of federal, state or local law that imposes obligations on the tenant in connection with the occupancy or use of the premises or
  • other good cause. Other good cause for termination of tenancy by the owner may include, but is not limited to, any of the following examples:

-failure by the family to accept the offer of a new lease or revision;

-the owner’s desire to use the unit for personal or family use, or other than as a residential rental unit; or

-a business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, desire to lease the unit at a higher rental). A business or economic reason may only be asserted after the first year.

During the first year of the lease term the owner may not terminate the tenancy for "other good cause."

  • criminal activity: Any of the following types of criminal activity by the tenant, any member of the household, a guest or another person under the tenant’s control shall be cause for termination of tenancy:

-criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises by other residents;

-criminal activity that threatens the health, safety or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises; or

-drug-related criminal activity on or near the premises.

Nonpayment by Public Housing Authority

24 CFR §982.310(b)

  • The voucher holder is not responsible for payment of the PHA's portion of the rent covered under the housing assistance payments (HAP) contract between the owner and the PHA, provided the lease has not been terminated.
  • The PHA’s failure to pay the housing assistance payment to the owner is not a violation of the lease between the tenant and the owner. During the term of the lease the owner may not terminate the tenancy of the family for non-payment of the PHA housing assistance payment.
Owner Notice of Termination of Tenancy

24 CFR §982.310 (e)

The owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease. The notice of grounds must be given at or before commencement of the eviction action. The notice of grounds may be included in, or may be combined with, any state required eviction notice.  The owner must give the PHA a copy of any owner eviction notice to the tenant.

Special Defense in Subsidized Tenancies

Non-Payment of Rent.  Improper calculation of rent can be a defense to an eviction action. Peoria Housing Authority v. Sanders, 54 Ill.2d 478, 298 N.E.2d 173 (1973).

The rules for calculating rent are included in 24 CFR §§ 5.628 and 5.634 for public housing and project-based Section 8 programs, and in 24 CFR §982.515 for the Section 8 voucher program.

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Denial or Termination of Voucher Assistance

24 CFR §982.552 (a)

Denial of assistance for an applicant may include:

  • denying listing on the PHA waiting list
  • denying or withdrawing a voucher
  • refusing to enter a HAP contract or approve a lease, and
  • refusing to process or provide assistance under portability procedures.

Termination of assistance for a Section 8 voucher participant may include:

  • terminating housing assistance payments under an outstanding HAP contract
  • refusing to enter a HAP contract or approve a lease, and
  • refusing to process or provide assistance under portability procedures.

Grounds

The Housing Authority may at any time deny program assistance for an applicant or terminate program assistance for a participant. Some actions will automatically trigger termination while others will require the PHA to decide to terminate assistance at their discretion. Assistance can be terminated for any of the following grounds:

  • If the family violated any family obligations under the program; (See §982.552, included below.) Family obligations include:

-supplying true and complete required information, including SSN’s, income information, and citizenship information

- allowing the PHA to inspect the unit at reasonable times with reasonable notice

-notifying the PHA before moving

-keeping the PHA informed as to any change in family composition, and

-failing to prevent a Housing Quality Standard (HQS) breach caused by the family

  • If any member of the family has been evicted from federally assisted housing in the past three years.;
  • If a PHA has ever terminated assistance under the certificate or voucher program for any member of the family;
  • If any member of the family commits drug-related criminal activity or violent criminal activity (see §982.553);
  • If any member of the family commits fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program;
  • If the family currently owes rent or other amounts to the PHA or to another PHA in connection with Section 8 or public housing assistance under the 1937 Act;
  • If the family has not reimbursed any PHA for amounts paid to an owner under a HAP contract for rent, damages to the unit, or other amounts owed by the family under the lease;
  • If the family breaches an agreement with the PHA to pay amounts owed to the PHA, for amounts paid to an owner by a PHA;
  • If a family participating in the family self-sufficiency program fails to comply without good cause with the family’s contract of participation;
  • If the family has engaged in or threatened abusive or violent behavior toward PHA personnel.

PHA Discretion to Consider Circumstances

In deciding whether to deny or terminate assistance because of action or failure to act by members of the family, including criminal activity, the PHA has discretion to consider all the circumstances in each case, including the seriousness of the case, the extent of participation or culpability of individual family members, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure. The Court held in Gaston v. CHAC Inc., the the PHA must consider mitigating circumstances. Gaston v. CHAC Inc., 375 Ill. App. 3d 16, 872 N.E.2d 38, 45 (1st Dist. 2007).

The PHA may impose as a condition of continued assistance for other family members a requirement that family members who participated in or were culpable for the action or failure to act will not reside in the unit. The PHA may permit the other members of a participant family to continue receiving assistance.

Crime by Family Members

24 CFR §982.553

At any time, the PHA may deny or terminate assistance if any member of the family commits:

  • Drug-related criminal activity or
  • Violent criminal activity

The standard is preponderance of the evidence and does not require a criminal conviction or even an arrest.

The PHA may deny or terminate assistance because of illegal use, or possession for personal use, of a controlled substance. Such use or possession must have occurred within one year before the date that the PHA provides notice to the family of the PHA determination to deny or terminate assistance. The PHA may not deny or terminate assistance for such use or possession by a family member if the family member can demonstrate that he or she:

  • has an addiction to a controlled substance, has a record of such an impairment, or is regarded as having such an impairment, and
  • is recovering or has recovered from such addiction and does not currently use or possess controlled substances

The PHA may require the family member who has engaged in illegal use of drugs to submit evidence of participation in, or successful completion of, a treatment program as a condition to being allowed to reside in the unit.

Informal Hearing (for Participant)

24 CFR §982.555

The PHA must give the opportunity for an informal hearing before the PHA terminates housing assistance payments for the family under an outstanding HAP contract.

24 CFR 982.555(c)
The PHA must give the family prompt written notice stating that the family may request a hearing. The notice must:

  • contain a brief statement of reasons for the decision
  • state the deadline for the family to request an informal hearing
Hearing Procedure

The PHA administrative plan must state the procedures for conducting informal hearings for participants.

Discovery
  • By the family: 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.
  • By the PHA: The PHA hearing procedures may provide that the PHA must be given the opportunity to examine at the 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.
Additional Requirements
  • The family may be represented by an attorney, at its own expense; 24 CFR §982.555 (e)(3)
  • The hearing officer may be any person(s) designated by the PHA other than the person who made or approved the decision or a subordinate of such person; 24 CFR §982.555(e)(4)
  • The family must be allowed to present evidence and witnesses and to question any witness.  Evidence may be considered without regard to admissibility under the rules of evidence; 24 CFR §982.555(e)(5)
  • The housing authority has an obligation to make a record of the hearing proceedings;
  • The family may seek judicial review of the decision by filing a petition for certiorari in circuit court within 35 days of the date the decision is issued.  The family should generally follow the procedures outlined in the administrative review provisions of the Code of Civil Procedure; 735 ILCS 5/3–101 et seq

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