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The Housing and Development Law Institute (HDLI) is a nationwide non-profit member organization whose mission is to serve as a legal resource to public housing and redevelopment agencies, their developers and legal counsel.

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Noteworthy


What's New:

Hoarding as Reasonable Accommodation Request

Hoarding, or any other impairment that meets the operative definition of "disability," can qualify for a reasonable accommodation. There seems to be some confusion about the proper definition to apply when considering whether someone is "disabled" when considering a request for reasonable accommodation/modification.

The definition to use is that found under 42 U.S.C § 12102 and is: a physical or mental (or emotional or developmental) impairment that substantially limits one or more major life activities. Some states have removed the "substantially" term from the definition so check your state law. A disability also may be established under 42 U.S.C § 12102 when a person has a record of such an impairment (like a medical record); or has been "regarded as" having such an impairment even when they are not, in fact, disabled. The Fair Housing Act, Section 504 of the Rehabilitation Act, and the Americans With Disabilities Act all recognize this definition for RA purposes. HUD also recognizes this definition for RA purposes.

It is not appropriate to use the definition used by the Social Security Administration to determine social security disability benefits. Nor is the proper definition the one found in HUD's regulations for a "person with disabilities" found at 24 CFR 5.403.

The reasonableness of providing a hoarder with a second bedroom to store his/her "stuff" is quite another issue. HUD programs house people, not things. I would argue that under HUD regulations a PHA's obligation is to provide an appropriate number of bedrooms to house a family based upon the number of people in their household. The family's obligation is to fit within those parameters, household goods and all. Moreover, given the propensity for a hoarder to continue hoarding beyond capacity, approving additional bedrooms will likely lead to other health and safety issues, and lease violations, down the road.

The usual accommodation is to postpone program termination or eviction to permit the resident time to bring in assistance (e.g., social services help) to clean up the unit and permanently bring it back into HQS and safety compliance. It may be appropriate to proceed with the eviction process and then get a stipulated judgment giving the PHA an immediate right to evict in the event of a subsequent similar violation. This protects for health and safety.

Thanks to Patricia Rice for sharing this helpful article from RentPrep.com.

See also: this 2011 memo from HUD's San Francisco Field Office on hoarding and PHA remedies.

 



Topics below are listed in alphabetical order:


Arrest Records - Guidance on
Use in Housing Decisions

On November 2, 2015, HUD issued PIH 2015-19 titled Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions.  The notice is accessible here.  The major change in protocol set forth in this Notice is that HUD now states that arrest records may not be the basis for denying admission, terminating assistance or evicting tenants.  Otherwise, for the most part, this Notice serves as a reminder to PHAs and owners that HUD does not require the adoption of "One Strike" policies, and that they must safeguard the due process rights of applicants and tenants.  The Notice also provides best practices and peer examples for the use of criminal records, screening for criminal activity, and evicting and terminating assistance for criminal activity.

Most importantly, the Notice states that HUD has determined that an arrest record, alone, cannot serve as evidence of criminal activity that can support an adverse admission, termination, or eviction decision. Before a PHA or owner denies admission to, terminates the assistance of, or evicts an individual or household on the basis of criminal activity by a household member or guest, the PHA or owner must determine that the relevant individual actually engaged in such activity. HUD acknowledges that, in many cases, arrests do not result in criminal charges, and even where they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. HUD points out that arrest records are often inaccurate or incomplete.



Asset Management - PHADA's Letter to HUD

On March 16, 2016, PHADA sent this letter to HUD Secretary Castro concerning possible re-federalization of COCC fees.  Thanks to PHADA for sharing.



Census

David Condon of the Owensboro Housing Authority received this clarification from Althea Forrester of HUD concerning a question about the Privacy Act and the U.S. Census, which was raised at HDLI's 2010 Spring Conference Open Forum.




Code of Conduct Policies

St. Paul Public Housing Agency Code of Conduct policies and related materials:

Guide to Conduct
Board Member and Staff Relationships Policy
Policy of PHA Commissioners on Conflicts of Interest
Policy for PHA Staff on Conflicts of Interest
Conflicts of Interest Annual Reporting Form
Minnesota Statute 10A.07 Conflicts of Interest

Charlotte Housing Authority Code of Ethics and Standards of Conduct




Disclosure of Tenant Information

The Dallas Housing Authority received a request from Fox 4 News for information regarding Section 8 Voucher holders. The Texas Attorney General has determined that such disclosure is prohibited by VAWA. Any listing of Section 8 Voucher Holders that do not include VAWA recipients may be subject to disclosure. VAWA, however, prohibits PHAs from maintaining a list of VAWA and non-VAWA voucher holders. A list containing all voucher holders from a PHA that administers VAWA vouchers, would not therefore be subject to disclosure. The same prohibition applies to the disclosure of Public Housing tenants.




Disclosure of Tenant Information -
Records Exempt from Florida Requirements

Miami-Dade Housing Agency has received HUD opinions stating PHA's tenant records and employee interview records are exempt from disclosure requirements as federal FOIA and Privacy Act law preempts Florida's Public Records Law.




Discriminatory Effects Standard

On February 8, 2013, HUD Issued this Final Rule on Implementation of the Fair Housing Act's Discriminatory Effects Standard


 

Domestic Violence - ACLU Resource

Thanks to Stephanie Waller of HUD for sharing the ACLU's Safe Homes, Safe Communites: A Guide for Local Leaders on Domestic Violence and Fair Housing.



Domestic Violence - Secretary Castro Announces
Proposed Rule Implementing VAWA 2013

On March 24, 2015, HUD Secretary Julian Castro announced HUD's proposed rule implementing VAWA 2013.  The proposed rule is available here.

See also: This email message from Gustavo Velasquez, HUD Assistant Sectretary for FHEO, which provides an overview of the proposed rule and links to related VAWA resources.



Domestic Violence - Stronger State Laws

In April 2015, HUD proposed new regulations implementing VAWA 2013, including inter alia, a proposed new model notice of rights, emergency transfer plan, and certification form.  See 80 FR 17548 (4/1/15), accessible here.

PHAs must not only follow VAWA, but must obey state domestic laws, as well. So, be sure that your focus in not only on VAWA, but any other state or local requirements that may exist in your jurisdiction. In that regard, I'd like to make you aware that recently the State of Florida's domestic relations laws have been revised to provide more domestic violence protections. HDLI has many Florida members, but I believe the new DV provisions are instructive for all of our members nationwide, given Congress and HUD's renewed focus on domestic violence in assisted housing programs (e.g., enhanced VAWA protections). While perhaps not required by your local laws, some of Florida's protections may be helpful to your residents nonetheless.

Highlights and instructive provisions of Florida's domestic violence law are available here.



Domestic Violence - VAWA

On April 1, 2015, HUD published this proposed rule for implementing the Violence Against Women Reauthorization Act of 2013 in HUD housing programs.





Due Process - HUD Rescinds
Determination in Florida

Letter from HUD General Counsel Helen Kanovsky to Florida Attorney General Pamela Bondi is available here.




Effective Communication Policy

Hialeah Housing Authority Effective Communication Policy is available here.

The Effective Communication Policy is available here in Spanish.




Eviction Notices

Sample eviction notices used by the Lucas Metropolitan Housing Authority (LMHA) in Toledo, Ohio:

LMHA 14-Day Notice with New VAWA Language

LMHA 3-Day Notice after Hearing Panel

LMHA 3-Day Notice for Drug-Related Criminal Activity

LMHA 30-Day Notice for Defaulting on Repayment Agreement


 

Fair Housing - Disparate Impact

On November 3, 2014, Judge Richard J. Leon of the U.S. District Court for the District of Columbia vacated HUD's disparate impact regulations (codified at 24 CFR §100.500 et seq.), ruling that they are inconsistent with the Fair Housing Act in
Am. Ins. Ass'n v. United States HUD, 2014 U.S. Dist. LEXIS 155383 (D.D.C. 2014).
The decision is available here
.

Judge Leon's conclusion says it all: "This is, yet another example of an Administrative Agency trying desperately to write into law that which Congress never intended to sanction. While doing so might have been more understandable-and less troubling-prior to the Supreme Court's decision in Smith, in its aftermath it is nothing less than an artful misinterpretation of Congress's intent that is, frankly, too clever by half. Defendants, of course, were somehow hoping that a favorable Chevron analysis would muster the judicial deference necessary to salvage their much desired Rule. But alas, it did not. Fortunately for us all, however, the Supreme Court is now perfectly positioned in Texas Department of Housing to finally address this issue in the not-too-distant future."




Fair Housing - Proposed Rule on
Discriminatory Housing Practices

On October 21, 2015, HUD issued this proposed rule entitled "Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act."

The proposed rule amends 24 CFR part 100 to establish a new subpart H, titled "Quid Pro Quo and Hostile Environment Harassment." This proposed rule would seem to attack various court decisions across the country that have held that "hostile housing environment" claims are not cognizable under the Fair Housing Act (FHA). Lisa Walker's analysis is available here.




Federal Preemption

In Willoughby Estates Homeowners’ Association, Inc., v. Lindel Anderson, Case No.: 2011CA007567XXXXMB, the Palm Beach Circuit Court ruled funds payable by the West Palm Beach Housing Authority pursuant to Title 24 of the Code of Federal Regulations to an Owner constituted “a future monetary obligation related to the parcel” as contemplated by Florida Statutes Section 720.3085(8), and were properly subject to attachment by the association to offset the parcel owner’s maintenance assessment delinquency.

In response to the ruling, WPBHA ordered the tenant to move and refused to make payment to any parties, as it had been directed by HUD that payment could only be made to an Owner.  WPBHA received a Motion to Compel to Comply with Court Order of July 19, 2011.  WPBHA opposed the Motion on multiple grounds, including federal preemption, that the PHA and HUD were indispensible parties, and that PHAs could not be deemed “tenants” under the amendment to the statute.

On May 3, 2011, Judge Hoy denied Willoughby Estates Motion to Compel the WPBHA to comply with the Court Order.  While the issue of federal preemption was not specifically addressed by the Court Order, HDLI is pleased that the Court has remedied this controversial ruling and denied its enforcement.  A copy of the Order is available here.




Free Speech - Second Circuit Holds that
Facebook Activity is Protected

Recent decisions by the National Labor Relations Board and the Second Circuit hold that Facebook activity, including employee "likes" of others' postings, may constitute concerted activity that is subject to protection under the National Labor Relations Act.  The law firm of Shawe & Rosenthal discussed the decisions here.





Green Development - HUD OIG Audit Report

On September 29, 2015, HUD OIG published an audit report criticizing my home state of Maryland's compliance with green development standards in the expenditure of its CDBG funding for Hurricane Sandy disaster relief in accordance with HUD's 2013 notice regarding CDBG disaster relief allocations, including a requirement for green development and certification. See 78 FR 14333 (March 5, 2013). The report is accessible here.

HUD OIG concluded that the State of Maryland could not show that replacement homes were designed and constructed to increase energy efficiency and minimize their environmental footprint as required. Specifically, the State's subgrantee could not show that it constructed replacement homes that complied with the Green Building Standard. The OIG recommended that HUD require the State to (1) provide documentation to show that the 13 homes, with related program costs totaling $1.9 million, meet the Green Building Standard or repay HUD for any amount that it cannot support and (2) continue to develop and implement procedures to ensure that future replacement homes comply with the Standard, thereby ensuring that $293,000 in program funds not yet paid to the subgrantee is put to better use.




HAP Payments

HUD OGC Opinion from June 27, 2013 stating that HAP payments are not subject to garnishment.

See also, this order from Washington County Court in Minnesota stating that HAP payments are not subject to state garnishment proceedings; and, St. Paul Public Housing Agency's legal memo to the court.

Payments pursuant to IRS levys are allowed according to this 1994 letter from HUD to the IRS.



Hoarding as Reasonable Accommodation Request

Hoarding, or any other impairment that meets the operative definition of "disability," can qualify for a reasonable accommodation. There seems to be some confusion about the proper definition to apply when considering whether someone is "disabled" when considering a request for reasonable accommodation/modification.

The definition to use is that found under 42 U.S.C § 12102 and is: a physical or mental (or emotional or developmental) impairment that substantially limits one or more major life activities. Some states have removed the "substantially" term from the definition so check your state law. A disability also may be established under 42 U.S.C § 12102 when a person has a record of such an impairment (like a medical record); or has been "regarded as" having such an impairment even when they are not, in fact, disabled. The Fair Housing Act, Section 504 of the Rehabilitation Act, and the Americans With Disabilities Act all recognize this definition for RA purposes. HUD also recognizes this definition for RA purposes.

It is not appropriate to use the definition used by the Social Security Administration to determine social security disability benefits. Nor is the proper definition the one found in HUD's regulations for a "person with disabilities" found at 24 CFR 5.403.

The reasonableness of providing a hoarder with a second bedroom to store his/her "stuff" is quite another issue. HUD programs house people, not things. I would argue that under HUD regulations a PHA's obligation is to provide an appropriate number of bedrooms to house a family based upon the number of people in their household. The family's obligation is to fit within those parameters, household goods and all. Moreover, given the propensity for a hoarder to continue hoarding beyond capacity, approving additional bedrooms will likely lead to other health and safety issues, and lease violations, down the road.

The usual accommodation is to postpone program termination or eviction to permit the resident time to bring in assistance (e.g., social services help) to clean up the unit and permanently bring it back into HQS and safety compliance. It may be appropriate to proceed with the eviction process and then get a stipulated judgment giving the PHA an immediate right to evict in the event of a subsequent similar violation. This protects for health and safety.

Thanks to Patricia Rice for sharing this helpful article from RentPrep.com.

See also: this 2011 memo from HUD's San Francisco Field Office on hoarding and PHA remedies.




IT Policy Samples

The Greensboro Housing Authority's IT Policy is available here. Thanks to Nancy Thomas for sharing

The Marietta Housing Authority's IT Policy is available here. Thanks to Ray Buday for sharing.





Legal Privileges for PHAs

On February 14, 2011, HDLI sent this letter to HUD and the HUD OIG urging that they protect PHA legal privileges.

On February 8, 2011, ADA President Stephen N. Zack sent this letter to HUD re: Concerns Regarding HUD’s Attorney-Client Privilege Waiver Policies and Practices




Litigation Management -
from HDLI's 2015 General Counsel Forum

HDLI Board member Kelly D. MacNeal of the New York City Housing Authority moderated a session on managing litigation at HDLI's 10th Anniversary General Counsel Forum.  Her "10 Lessons Learned from Managing Monster Litigation" is available here.



Live-In Aides

Live-In Aides and the Housing Choice Voucher Program Fact Sheet is available here.




Moving to Work (MTW) -
PHADA's Rebuttal to CBPP Paper

The Public Housing Authorities Directors Association (PHADA) has issued this rebuttal to the Center on Budget Policies and Priorities (CBPP) paper criticizing the MTW program.  

See also: this recent study by Abt Associates entitled "Innovations in the Moving to Work Demonstration."





Nonprofit Subsidiaries

HDLI Board Member, Steven J. Riekes, presented an article on "Nonprofit Subsidiaries: How and When a Housing Authority Should Use Them" at HDLI's 2002 Fall Conference in Seattle.

 



Notice - Industry Groups File U.S. Supreme Court
Amicus Brief on Important Notice Issue

HDLI, PHADA, CLPHA, NAHRO, and HAARG filed an amicus curiae brief in the U.S. Supreme Court supporting the petition for certiorari filed by the Housing Authority of the City of Los Angeles (HACLA).  The amicus brief is available here.

HACLA's petition for certiorari to the U.S. Supreme Court is available here.





Operating Reserves

On February 23, 2011, HUD PIH Assistant Secretary Sandra Henriquez sent out a letter to executive directors regarding offsets against operating reserves and spending down reserves.




"Over-Income" Tenancy - Latest from HUD

Update: HDLI has filed comments to HUD about the proposed policy change regarding "over-income" tenants.  HDLI's comments are available here.

On February 3, 2016, HUD published an advanced notice of proposed rulemaking concerning public housing tenants who are "over-income" entitled Strengthening Oversight of Over-Income Tenancy in Public Housing; Advance Notice of Proposed Rulemaking, 81 FR 5677 (2/3/16), accessible here.

This applies to tenants who met program income limits at the time of admission to public housing but their income now exceeds those limits. This follows a July 21, 2015 HUD OIG report that found that, in 2014, as many as 25,226 families were over-income.  HUD is soliciting comments on how to structure policies to reduce the number of residents who are significantly over-income. Comments are due by March 4, 2016.

See also: the St. Paul Public Housing Agency has adopted a time limit for "over-income" families in public housing. The agency's report is available here.



Paperless Office

Sample RFP for Paperless Administration of Housing Choice Voucher Program is available here.  Thanks to Ray Buday of Marrietta Housing Authority for sharing.





Pet Ownership - Dangerous Breeds

HUD's 2000 Final Rule titled Pet Ownership in Public Housing is accessible here.

The rule states:

"Comment: Banning of dangerous animals. HUD should neither encourage nor permit PHAs to ban specific breeds of dogs. The final rule should require that an animal behaviorist make any final decision that an animal is dangerous. The final rule should either define the term ''dangerous animal'' or provide a list of dangerous animals.

Response: Section 31 of the Act provides that a PHA's reasonable requirements may include prohibitions on types of animals that are classified as dangerous. Thus, the rule contains a provision implementing that statutory provision. In some cases, State or local law may govern the classification and treatment of "dangerous animals" and whether to ban specific breeds; in those cases, the PHA's pet policy must be consistent with State or local law."

For HUD guidance on insurance policy restrictions as a defense for a refusal to allow a certain breed(s), see the 2006 HUD memorandum accessible here.  If you choose to rely upon what an insurance broker is telling you as a basis for a wholesale denial of the breed(s), make sure that you shop around and make sure that no other insurance company will provide you more favorable terms.



Preemption - Milwaukee HA v. Cobb

In a March 12, 2015 decision in Milwaukee City Housing Authority v. Felton Cobb, the Wisconsin Supreme Court, ruled that "42 U.S.C. § 1437d(l)(6) preempts the right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant is evicted for engaging in 'drug-related criminal activity' within the meaning of 42 U.S.C. § 1437d(l)." Affirmatively agreeing with the reasoning in Scarborough and Boston Hous. Auth. v. Garcia, the court held that Wis. Stat. § 704.17(2)(b) is preempted because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

The decision is accessible here.  HDLI filed an amicus curiae brief in support of the Milwaukee City Housing Authority, which is accessible here.





Procurement - New Rules
from HDLI's 2015 Spring Conference

At HDLI's 2015 Spring Conference, Julie McGovern of Reno & Cavanaugh moderated a session concerning PHA obligations under the new uniform rules. The PowerPoint presentation from that session is available here.




Procurement - New Rules
from HDLI's 2015 General Counsel Forum

HDLI CEO & General Counsel, Lisa L. Walker, moderated a session on the new procurement rules at HDLI's 10th Anniversary General Counsel Forum. Ms. Walker's outline and other materials are available here.

See also: This redline comparison of 24 CFR Part 85 and 2 CFR 200 prepared by Shayla Simmons of the Cambridge Housing Authority.




RAD Updates -
from HDLI's 2015 General Counsel Forum

On January 29, 2015, HUD published a Federal Register notice indicating they are processing 1st component RAD applications over the cap.  The notice is available here.  

See also: HDLI Board member Rod Solomon's article on RAD entitled "The 2014 Public Housing Investment Update" is available here.




Reasonable Accommodations

On January 7, 2009 the Supreme Judicial Court of Massachusetts handed down its decision in Bridgewaters v. Boston Housing Authority involving a case where the housing authority argued, inter alia, that it did not have a duty to consider whether a mentally disabled tenant that committed a vicious violent act upon another tenant was entitled to a reasonable accommodation that would avoid his eviction from public housing. The tenant argued that he suffered from bipolar disorder, that he had been unmedicated at the time of the attack, and that the housing authority had a duty, but failed, to explore the feasibility of a reasonable accommodation of his disability before concluding that continuation of his tenancy would constitute a threat to the safety of other tenants. Reversing prior court decisions upholding the tenant's eviction, the supreme court held that, by regulation, prior to moving to evict the tenant, a housing authority has a duty to make an individualized assessment as to whether a proposed accommodation will eliminate the direct threat posed by the tenant. The court held that such an assessment should be based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. It is important to note that this decision does not prevent a housing authority from evicting a disabled tenant where it can demonstrate that no accommodation is available that would protect the health or safety of other tenants. Rather, it underscores the requirement that housing authorities not automatically reject a request for accommodation before making the individual assessment as to whether the proposed accommodation would eliminate the disabled tenant's direct threat to the health or safety of others.  HDLI's amicus brief is available here.



 

Reasonable Accommodations for the Hearing Impaired

HDLI CEO & General Counsel, Lisa L. Walker, gave a presentation at the 2014 annual legal conference for the Virginia Association of Housing and Community Development Officials (VAHCDO) on reasonable accommodations for the hearing impaired and recent HUD settlements on that topic.  The PowerPoint slides from this presentation are available here.





Reasonable Accommodation Grievance Policy

Hialeah Housing Authority's Reasonable Accommodation Grievance & Appeal Policy and Procedures is available here.  Thanks to Nicole Bates for sharing.




Repayment Agreements

Detroit Housing Commission Repayment Policy and Repayment Agreement

Kankakee County Housing Authority Section 8 Payment Agreement

Stark Metropolitan Housing Authority Repayment Agreement





Resident Council Funds

John Heinen's opinion letter to the the Milwaukee Housing Authority in response to a challenge from the Freedom From Religion Foundation.



 

Section 3 - Draft Policy

Philadelphia Housing Authority's proposed amended and restated Section 3 policy is available here.  Thanks to Phildalephia HA's Barbara Adams for sharing.




Sex Offenders

July 16, 2009 letter from HUD Assistant General Counsel to NYC Dept. of Preservation and Development States that section 578 of the Quality Housing and Work Responsibility Act of 1998 provides sound legal basis to terminate the assistance of sex offenders erroneously admitted.





Smoke-Free Housing - Proposed Rule

HUD has published the proposed "Smoke-Free Housing" rule. You can access the proposed rule here.

Highlights of the rule are available here.

HUD is soliciting comments on the Proposed Rule and has included a specific series of questions for feedback. Comments are due January 19, 2016.  

 

Smoke-Free Housing - Sample Policies

Boston Housing Authority's Draft No Smoking Policy

North Bend City / Coos-Curry Housing Authority's No Smoking Policy

HUD Notice 2010-21: Optional Smoke-Free Housing Policy Implementation





Social Media Policy

Charleston Housing Authority's Electronic Communications Policy

See also: City of Ontario v. Quon





Streamlining Housing Programs

On January 5, 2015, HUD published in the Federal Register proposed rules intended to relieve some administrative burdens on PHAs and Multifamily Housing owners. Some of these previously only were enjoyed by MTW agencies.  HUD invites comments on the proposed streamlining methods and asks if there are other changes that should be addressed.

The proposed rules are accessible here.

A summary of these proposed rules is available here along with a list of the proposed changes that HUD specifically seeks comment on.  Comments are due by March 9, 2015.



Tablet Use Agreement

Sample iPad Use and Possession Agreement available here.  Thanks to Naomi Byrne of the Fort Worth Housing Authority for sharing.





Trespass and Barring

HDLI created a Model Limited Access and Barring Policy that considered nationwide case law on barring and trespass policies, and incorporated the "best" provisions from certain existing housing agency trespass policies. The model policy was last updated in April 2004.



 

Please contact HDLI at (202) 289-3400 or hdli@hdli.org with any questions.

 


Housing and Development Law Institute; 630 Eye Street, NW; Washington, D.C., 20001-3736; Phone: 202-289-3400; Fax 202-2893401 E-mail: hdli@hdli.org