Question:

What are the procedures and criteria for evicting a tenant whose rent is subsidized by the Section 8 housing voucher program?

Answer:


Good cause required

A residential landlord is required to provide good cause for terminating the tenancy of a tenant whose rent is subsidized by the Department of Housing and Urban Development’s (HUD) Section 8 housing voucher program. The good cause is to be set forth as the reason for the termination of tenancy, either in a notice to vacate or a notice to quit.

Good cause for termination includes:

  • the tenant’s violations of  the terms and conditions of the lease (i.e. failure to pay rent);
  • the tenant’s violations of federal, state or local law in connection with the occupancy or use of the premises;
  • criminal activity; and
  • other good cause. [24 Code of Fed. Regs. §982.310(a)]

Criminal activity

Criminal activity may also be grounds for termination, including:

  • criminal drug activity on or near the premises by the tenant, household member, guest of the tenant or any person under the tenant’s control;
  • patterns of illegal drug use that interfere with the health, safety or right to peaceful enjoyment of the premises by other residents;
  • any other criminal activity that threatens the health, safety or right to peaceful enjoyment of the residence by other occupants of the premises (including property management staff) or residents in the immediate vicinity;
  • the tenant’s avoidance of prosecution, custody or confinement for a crime, after a conviction or an attempt to commit a crime, which is considered a felony under local laws from which the tenant is fleeing; and
  • the tenant’s violation of the conditions of probation or parole imposed by federal or state law. [24 CFR §982.310(c)]

However, a landlord may only terminate a tenancy due to criminal activity if the lease provides that the criminal activity in question is grounds for termination. [24 CFR §982.310(c)]

first tuesday’s rental and lease agreement forms require the tenant to agree not to use the premises for unlawful purposes, violate any government ordinance or create a nuisance. [See first tuesday Forms 551 §6.7 and 550 §6.7]

“Other good cause”

State and local ordinance ultimately control what is considered “other good cause.” However, during the initial lease term (established by Section 8 as at least one year, unless shortened for good reason by the local public housing agency (PHA)) “other good cause” may only be based on the tenant’s behavior, such as:

  • disturbing the neighbors; or
  • destruction or damage of the premises. [24 CFR §982.310(d)(2)]

After the initial lease term ends, “other good cause” includes:

  • the tenant’s failure to accept the offer of a new lease or revision;
  • the owner’s intent to use the residence for personal or family use; and
  • business or economic reasons, such as sale of the property, renovations or the landlord’s desire to lease the unit at a higher rental rate. [24 CFR §982.310(d)]

Written notice

Prior to termination for any reason, the landlord is required to first provide the tenant with a written notice of good cause informing the tenant their specific conduct constitutes a basis for termination of tenancy. This notice may be served with the notice to vacate. [24 CFR §982.310(e)]

The landlord is required to also provide the local PHA with a copy of the notice to vacate. [24 CFR §982.310(e)(2)(ii)]

If the violation prompting the notice involves a failure to pay amounts due under a lease, the three-day notice to pay or quit is used. [See first tuesday Form 575]

If the violation prompting the notice involves a correctable nonmonetary breach of a lease agreement, the three-day notice to perform or quit is used. [See first tuesday Form 576]

If the violation prompting the notice involves an uncorrectable nonmonetary breach of a lease agreement, the three-day notice to quit is used. [See first tuesday Form 577]

If the tenancy shifts to a month-to-month tenancy after the initial lease period, and the tenant has occupied the property for more than one year, a 60-day notice to vacate is used.  Alternatively, if the tenancy shifts to a month-to-month tenancy after the initial lease period, and the tenant has occupied the property for less than one year, a 30-day notice to vacate is used. [See first tuesday Forms 569-1 and 569]

Through December 31, 2019, if the reason for the termination of tenancy is a sale of the property due to foreclosure, the procedure depends on the new owner-by-foreclosure’s use of the property. A new owner who intends to occupy the property within the first year after foreclosure is required to give the Section 8 tenant under an unexpired lease agreement a 90-day notice to vacate due to foreclosure.  [Code of Civil Procedure §1161c; see first tuesday Form 573]

A new owner-by-foreclosure who does not intend to occupy the property is required to honor the pre-existing tenancy, including the acceptance of Section 8 vouchers.  However, the new owner may terminate the tenancy if good cause arises, by using the rules and notices detailed above.  [42 United States Code §1437f(o)(7)(F)]

Editor’s note — If a landlord fails to renew or terminates their housing assistance payment (HAP) agreement with the local PHA, the landlord is required to provide the Section 8 tenant with a 90-day notice to vacate. [Calif. Civil Code §1954.535; Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111]

Related article: Volume 4 of first tuesday Realtipedia, Real Estate Property Management (Chapter 26: Three-day notice to quit and Chapter 29: Notices to vacate)