Midwest Affordable Housing Management Association 2014 Regional Housing Conference Evictions June 3 & 4, 2014

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1 Midwest Affordable Housing Management Association 2014 Regional Housing Conference Evictions June 3 & 4, 2014 Presented by: William L. Willis Phillip J. Neuman, Esq. Willis Law Firm Couzens, Lansky, Fealk, Ellis, Roeder & 141 East Town Street, Suite 200 Lazar, P.C. Columbus, Ohio West Twelve Mile Rd, Suite 200 P Farmington Hills, MI F P x382 wwillis@willislawohio.com F Phillip.Neuman@couzens.com

2 DISCLAIMER While Mr. Neuman & Mr. Willis are very good looking and possess brilliant legal minds, this seminar is intended to provide general information and cannot substitute proper and specific legal advice

3 In Ohio 88 different Counties + 12 different Appellate Districts + 1 Ohio Supreme Court = Many different Local Rules, Policies, and Quirks

4 In Michigan Approximately 100 District Court & 4 Municipal Courts + 57 Circuit Courts + 4 Districts of Court of Appeals + Michigan Supreme Court = Many different Local Rules, Policies, & Quirks

5 Many Different Types of Housing

6 Public Housing Managed, owned, & facilitated by PHA Governed by 24 C.F.R. part and a host of other federal statutes

7 Project Based Subsidized Housing Section 221(d)(3) and (d)(5) Section 236 and 202 Project Based Subsidized Housing **And others receiving benefit of subsidy in the form of: below market interest rates, rent supplement payments, & Housing Assistance payments (Project Section 8) 24 C.F.R. Part 247

8 Tenant-Based Rental Assistance Section 8 Housing Choice Voucher (HCV) Housing Assistance Payment (HAP) Contract

9 Low Income Housing Tax Credit

10 All of the above types of housing require Good Cause Evictions"

11 The Michigan Eviction Process

12 Michigan Does Not Allow Self-Help Evictions MCLA (the Anti-lockout statute ) provides for actual damages or $200.00, whichever is greater, in the event a landlord unlawfully interferes with the tenant's tenancy. MCLA (2)

13 What constitutes unlawful interference Unlawful interference is specifically defined in the statute to include any one or more of the following (MCLA (2)): (1) Force or threat of force; (2) Removal, retention or destruction of personal property of the tenant; (3) Changing the locks; (4) Boarding the premises; (5) Removal of doors, windows or locks; (6) Terminating or interrupting any service procured by the tenant or provided by the landlord which is so essential that its termination or interruption would constitute a constructive eviction; or (7) Introduction of noise, odor or other nuisance

14 Are there any exceptions to the rule against unlawful interference? (1) When the landlord acted pursuant to court order (MCLA (3)(a)); (2) When the landlord interfered temporarily only to make needed repairs or inspection (MCLA (3)(b); or (3) When the landlord believed in good faith the tenant had abandoned the premises, has reason to believe the tenant does not intend to return, and current rent is not paid (MCLA (3)(c)) (a) If there is no bed, no clothes and no food in the apartment, it is safe to conclude that the premises have been abandoned, and the landlord can merely change the locks and rerent the apartment.

15 Exceptions to unlawful interference, pt. 2 The Michigan Legislature recently added a new exception to the anti-lockout statute in the situation where the last surviving tenant has passed away if all of the following requirements are met (MCLA (3)(d)): Landlord advised the tenant in writing to provide contact information for an authorized person to contact in the event of the tenant s death Current rent is unpaid Tenant has been deceased for at least 18 days, and not less than 10 days before the landlord reenters, the landlord makes a reasonable attempt to contact the authorized person, places a notice on the door of the intent to reenter, and gives notice to the county public administrator No probate estate has been opened for the deceased tenant

16 Step One to Recover Possession the Notice to Quit Generally, a notice to quit or demand for possession is required in every case in which the owner seeks possession of premises, except when the lease has expired by its own terms. MCLA (1)(c)(ii) permits a landlord to recover possession after the term for which the premises are demised to the person. It does not require the service of a notice to quit.

17 Forms of Notices to Quit Note -- all of the forms used for landlordtenant cases can be found at the Michigan Courts website: rms/pages/landlord-tenant-and-land- Contract.aspx

18 Nonpayment of rent - seven day notice (DC 100a) (a) This notice is used when the tenant fails to pay rent on time. MCLA (1)(a). This is sometimes called a Pay and Stay Notice. (b) A seven day notice does not terminate the tenancy, but merely constitutes a demand for possession or payment. (c) If rent is due on the first of the month, this notice can be sent out at any time after that day. (d) The tenant has the ability to cure the demand by paying all unpaid rent at any time up to the point the writ of restitution is issued. (e) Pursuant to the statute, rent due does not include any accelerated indebtedness by reason of a breach of a lease. Thus, the notice can only be used with respect to past due or currently due rent, and not future rent.

19 Termination of tenancy - thirty day notice (DC 100c) (a) This notice is used when the tenant is in breach of a provision of the lease and the landlord desires to terminate the lease. MCLA (1)(c)(i). (b) The breach must be a material breach of the lease in order to justify the termination of the tenancy (c) A thirty day notice terminates the tenancy and does not permit an opportunity to cure. A landlord thus can terminate a tenancy when the rent is unpaid and avoid giving the tenant an opportunity to pay and stay. However if the landlord has continually accepted rent late in the past, the landlord should send a warning letter first before terminating the tenancy for late payment of rent. (d) The thirty day notice is also used to terminate the tenancy of a month-to-month tenant. MCLA (1)(c)(iii); MCLA It should be noted that a landlord in a typical commercial or residential lease need not give a reason for terminating the month-to-month tenant. The tenant can be evicted for a good reason, bad reason, or no reason at all, so long as the reason is not discriminatory or retaliatory in nature. The only exceptions are with respect to public housing, where the public agency seeking to evict the tenant must have "just cause" (MCLA (2)) and with respect to mobile homes (MCLA (3)). (e) It is critical that the correct date be inserted in the blank in Paragraph 2 of the notice to quit. The statute requires a minimum of one month's notice. MCLA Thus, at least thirty days' notice must be given. MCLA provides that if a notice to quit is mailed, the date of service for purposes of summary proceedings is the next regular day for delivery of mail after the day when it was mailed. Thus, for example, if a notice to quit is mailed on Saturday, November 21, it is treated as if it was mailed on Monday, November 23, and thus the date on line 2 should be no earlier than December 23. Summary judgment in favor of the defendant has been granted where the date on line 2 was even one day short.

20 Health hazard/physical injury - seven day notice (DC 100b) (a) This notice is used when the tenant is willfully or negligently causing a serious and continuing health hazard or extensive and continuing physical injury to the premises. MCLA (1)(d). (b) Lots of behavior by a tenant could be considered health hazards or physical injuries: Smoking in a no-smoking common area or elevator; Unusual smells emanating from the premises; Gang-related activity; Gunplay in complex; Introducing bedbugs to the premises; (c) The statute requires that the summary proceedings for possession be commenced within 90 days of first discovering the health hazard or physical injury, and the landlord must give at least seven days' notice to quit before filing the lawsuit; thus the notice must be sent to the tenant within 83 days of first discovering the problem. MCLA (1)(d). (d) The tenant is given seven days to stop the health hazard or fix the physical injury, or move out, and if the tenant fails to do so, suit should be immediately commenced. This ability to cure may be a reason to resort to the thirty day termination of tenancy, which has no ability to cure. The tenant who posed a health hazard might attempt to argue that he or she has been cured, and therefore there is no basis for the demand for possession. (e) The health hazard/physical injury route is the fastest route to a writ of restitution because the statute permits the issuance of an immediate writ of restitution. MCLA (2)(e).

21 Drug possession - twenty-four hour notice (DC 100e) (a) This notice is used when the tenant, a member of the tenant's household or other person under the tenant's control has unlawfully manufactured, delivered, possessed with intent to deliver or possessed a controlled substance on the leased premises. MCLA (1)(b). (b) The lease must contain a provision permitting this type of termination. (c) The drug related activity must take place on the leased premises. (d) This notice can be used only if a formal police report has been filed alleging that the person has unlawfully manufactured, delivered, possessed with intent to deliver or possessed a controlled substance on the leased premises. (e) The statute defines "controlled substance" as any drug on schedule 1, 2 or 3 of the Public Health Code -there are a large number of drugs, including medical marijuana, LSD and cat, on these schedules. MCLA , et seq. The law is unclear on whether you can evict solely based on authorized use of medical marijuana

22 Causing or threatening physical injury to an individual - seven day notice (DC 100c) A seven day notice can be given when a person holds over premises for 7 days following service of a written notice to quit for termination of the lease after the tenant, a member of the tenant's household, or a person under the tenant's control, on real property owned or operated by the tenant's landlord, has caused or threatened physical injury to an individual. This subdivision applies only if the police department with jurisdiction has been notified that the person, on real property owned or operated by the tenant's landlord, caused or threatened physical injury to an individual. This subdivision does not apply in either of the following cases: (i) The individual who was physically injured or threatened is the tenant or a member of the tenant's household. (ii) Application would result in a violation of federal housing regulations.

23 Service of the notice to quit: There are three statutory methods of serving the notice to quit: (a) By delivering it personally to the tenant. (b) By delivering it on the premises to a member of the family or household of suitable age and discretion. (c) By mailing it by first class mail. 1) Note that pursuant to MCLA , if the notice to quit is mailed, the date of service for the purposes of the summary proceedings act is the next regular day for delivery of mail after the day when the notice was mailed.

24 Acceptance of rent after the notice to quit has been given: (1) Seven day nonpayment of rent case: (a) Because the tenant has a right to cure a demand for possession for nonpayment of rent, the landlord must accept full payment if tendered by the tenant. (b) If the tenant tenders only a partial payment, the landlord may accept this payment and still file a complaint for possession. (2) Seven day and thirty day termination cases & seven day health hazard cases: (a) The Michigan Court of Appeals ruled in Park Forest of Blackman v Smith, 112 Mich App 421, 426, 316 NW2d442, 444 (1982), that the landlord can accept rent which covers the period up to the last day of the notice period. (b) Thus, for example, if the notice to quit requires the tenant to move by May 6, the landlord may accept rent only for the first six days of May and not the entire month of May. The reasoning for this rule is that acceptance of rent for any period of time that is after the last day of the notice period is inconsistent with the concept that the landlord wants to regain possession of the premises as of that date. Id. Acceptance of rent for any period of time after the last day of the notice period constitutes a waiver of the notice to quit. Id.

25 Step Two to Recovering Possession Commencing the Action The District Courts have original jurisdiction of summary proceedings. MCLA Even if the defendant is a decedent s estate, the District Court would still be the proper court to try a summary proceeding for possession, rather than the Probate Court.

26 Use the forms There is a summons form (DC 104) and a complaint form (which varies depending on the type of case that is filed): (a) Nonpayment of rent (DC 102a); (b) Termination of tenancy, including drug evictions and threats of physical injury to a person (DC 102c); (c) Health hazard/physical injury (DC 102b);

27 Should the landlord file a supplemental complaint? (1) The supplemental complaint allows the landlord to seek a money judgment as well as a judgment of possession. This can be a good tool for exercising leverage over the defaulting tenant. (2) Only certain types of claims can be joined with a summary proceeding action. MCLA spells out the types of claims and counterclaims that can be joined with a claim for possession. These types of claims are for damages attributable to wrongful entry, detainer or possession, for breach of the lease or contract under which the premises were held or for waste or malicious destruction to the premises.... (3) There is an additional filing fee for the supplemental complaint which is based on the amount at stake: $0-$600 $25.00 $601-$1,750 $45.00 $1,751-$10,000 $65.00 $10,001-$25,000 $ (4) The landlord can obtain a money judgment only if personal service has been made on the tenant or the tenant appears in court on the hearing date. MCR 4.201(G)(1)(b). (5) The landlord must make an economic decision whether or not to seek a money judgment and pay the added filing fee associated with a supplemental complaint. One factor to consider is that the landlord can charge to the tenant as part of the redemption amount the costs of the action, including the supplemental filing fee. So long as the tenant is reasonably likely to redeem the property, it will cost the tenant more in the long run, and over time, the perpetually late tenants learn to pay on time so as to avoid yet another charge to them. Even if the landlord obtains a money judgment, he or she still has to collect it, and it may be very difficult to find the tenant (particularly if there is no forwarding address). On the other hand, service is more likely to occur while the tenant is still occupying the premises.

28 Method of service of the pleadings (1) Either the court officer or a private process server can serve the summons and complaint. Use of the court officer can have side benefits, because if there is ever a claim that the summons and complaint was not served, the judge is quite likely to believe his or her own court officer over a party or another witness. (2) The plaintiff cannot serve the pleadings. (3) Service must be made either personally on the defendant, or a person of suitable age at the premises, or, after three tries, by attachment to the door. (4) The landlord must make personal service of the summons and complaint on the tenant, (or the tenant must appear at the court hearing) in order to obtain a money judgment against the tenant.

29 Can the landlord accept rent after the suit has been filed? (1) Seven day nonpayment of rent cases: (a) The landlord must accept full payment, so long as such payment includes any additional rent which has accrued up to the date of payment. (b) The landlord may accept a partial payment and still proceed, however some judges may disagree with that position, and treat receipt of any funds as a waiver of the nonpayment notice to quit. (c) In an abundance of caution, the landlord should obtain the acknowledgment from the tenant that the partial payment will not delay the court proceeding. (2) Seven and thirty day termination case & seven day health hazard cases: (a) Do not accept rent until the court hearing. (b) Accepting rent is still inconsistent with terminating the tenancy (see Park Forest of Blackman v Smith).

30 Step Three to Recovering Possession the Hearing Notwithstanding the statutory requirement that trial be held within ten days after the issuance of a summons (MCLA (2)), the hearing is typically set for two to three weeks after the case is filed. The summary proceeding hearing is unusual in that the landlord often has no idea what defenses, if any, the tenant may raise, or what witnesses, if any, should be ready to testify. Whenever the trial is held (whether on the first hearing date or at an adjourned date), it usually is a very cursory hearing where each side presents its arguments and witnesses. To the extent the tenant claims that the landlord has failed to properly maintain the premises, the tenant can introduce an authenticated copy of any relevant government employee s report filed with a government agency. MCR 4.201(J)(3). If the tenant wants to have a jury trial, the only opportunity to request a trial is at the first appearance, so if the tenant fails to ask for a jury trial immediately, the right to a jury is waived. MCR (F)(3). If the tenant demands a jury, the landlord should ask for a rent escrow order which requires the tenant to pay rent into the court pending the trial.

31 Typical tenant defenses In nonpayment of rent cases, the tenant could argue that the landlord breached the lease first in some fashion, thereby precluding a judgment of possession against the tenant. MCLA (1)(f) provides that a judgment for possession against a tenant may not be entered if that tenant can establish that the landlord committed a breach of the lease which excuses the payment of rent if the possession is claimed for nonpayment of rent.

32 Typical tenant defenses, part 2 In termination of tenancy cases, the tenant can raise the defense that the alleged breach is not a material breach of the lease or that the action is retaliatory in nature. MCLA offers four grounds for claiming retaliatory eviction: 1) The alleged termination was intended primarily as a penalty for the tenant's attempt to secure or enforce his or her rights under the lease or under any municipal, state or federal law. 2) The alleged termination was intended primarily as a penalty for the tenant's complaint to a governmental authority of the landlord's violation of a health or safety code or ordinance. 3) The alleged termination was intended primarily as retribution for a lawful act arising out of the tenancy or lawful activity of a tenant organization of which the tenant was a member. 4) The landlord attempted to increase the tenant's obligations as a penalty for any of the actions described in MCLA (1)(a) through (c), and the tenant's failure to perform the additional obligations are the primary reason for the alleged termination of tenancy. If the tenant's lease has expired by its terms, then the defense of retaliatory eviction is not available, because the landlord has done nothing to cause a termination of the tenancy, and thus the eviction action cannot, as a matter of law, be retaliatory. Frenchtown Villa v Meadors, 117 Mich App 683, 324 NW2d 133 (1982). Therefore, the expiration of the lease is usually the best (and possibly only) time to terminate a problem tenant.

33 Use the Judgment form (DC 105) Be sure to include additional rent and late charges which have accrued since the day the complaint was filed for nonpayment of rent cases The date for issuance of an Order of Eviction (Writ) should be ten days after the hearing unless the landlord sought an immediate writ as allowed under MCLA (such as for a health hazard/physical injury cases or drug possession cases)

34 Can the landlord accept money after the judgment is entered? (1) For seven day nonpayment of rent cases the landlord must accept full payment of the amount set forth in Box 2(c) of the Judgment form, if made before the writ date. (2) For seven day nonpayment of rent cases the landlord can accept partial payments if the "will not" box on line 6 of the Judgment was checked. (3) For termination of tenancy cases, the landlord can accept full or partial payments, but no tenant is likely to make such payment knowing that he or she will be removed from the premises any way.

35 Step Four to Recovering Possession the Order of Eviction a. Once the writ date has completely passed, the landlord can obtain an order of eviction (formerly known as a writ of restitution) from the court. b. If an immediate writ is being requested, the form should be presented to the Court for entry at the same time as the Judgment of Possession. c. The tenant has until 5:00 p.m. on the date set forth in Paragraph 4 of the Judgment to pay (in a nonpayment case) or move. d. Some courts may require a writ hearing if there was a partial payment and all courts require a hearing if the request for the writ is filed more than 56 days after the judgment. MCR 4.201(L)(4)(a).

36 The Ohio Eviction Process Self-Help Evictions are illegal Cannot shut off utilities Cannot change the locks Cannot hold tenant belongings for ransom

37 The Ohio eviction process allows landlords to legally evict a tenant for a number of reasons: Nonpayment of rent Tenant s failure to comply with health & safety codes Violation of material terms of lease Rules & Regulations Criminal Activity Denying the landlord access upon reasonable notice (at least 24 hours) Others

38 Depending on the reason for the eviction, and type of Housing, the Ohio eviction notice may be a 3-day, 10-day, or 30-day.

39 Forcible Entry & Detainer ORC Chapter 1923 Contains: Definitions of Landlord, Tenant, Residential Premises, Rental Agreement, etc. Ground for Eviction Action Violation of lease (non-payment of rent) Violation of Tenant s duties under the Ohio Landlord- Tenant Law Drug Offenses Holdover Tenancy

40 Landlords & Tenants ORC Chapter 5321 Contains: Definitions- more extensive than 1923 Obligations of Landlords ( ) Keep common areas safe and sanitary Comply with housing codes Make repairs to keep fit and habitable Supply hot and running water Supply garbage cans and pick-up (4 or more units) Maintain appliances provided by Landlord Access (don t abuse)

41 Obligations of Tenant ( ) Keep unit safe and sanitary Comply with housing codes Operate electric and plumbing properly Don t destroy premises or appliances Don t disturb neighbors Don t sell drugs Access (must allow) Guests, too!

42 If you are a subsidized property, or using a HUD Model Lease 10-day (24 CFR 247)

43 Violation of R.C obligation requires a 30-day notice R.C and a 3-day or 10-day notice

44 R.C Mandatory & Jurisdictional -Combination of 3-day into 10-day -Check with your local Attorney

45 Counting 3-days Method of Service of Notice Subsidized Properties higher obligation

46 Summons and Complaints Must be served 5-days prior to hearing Continuances

47 Court Date Judgment / Writ of Restitution

48 Common Defenses to all Kinds of Properties Waiver Defenses Waiver by acceptance of future rent Accepting partial rent Accepting rent after knowledge of breach by tenant Cashing check or money order, even if landlord tenders back

49 Holding of Rent May Equal Acceptance Evidentiary purpose for holding Notice to tenant that rent is being held, but not accepted

50 Other Waiver Defenses Waiver of Breach by Landlord Action When a landlord has knowledge of the tenant s breach of the rental agreement, the landlord waives the breach if the landlord takes action that is inconsistent with a termination of the tenancy

51 Tenant and landlord make sweat equity agreement where tenant agrees to paint in lieu of paying rent, but landlord fails to buy paint supplies and then files eviction for failure to pay rent Landlord tells tenant not to pay rent because landlord intends to evict tenant for some other reason, but then files eviction for nonpayment

52 Waiver of the Ohio R.C or Notice of Termination If the landlord accepts future rent after the expiration of the thirty-day period of an R.C or R.C (B) notice of termination, it may constitute waiver of the notice or create a new periodic tenancy

53 Waiver of timely tender of rent by Pattern and Practice There is a sufficient pattern and practice between the parties of late rent payment and acceptance that charges the due date as a matter of law.

54 OHIO Fictitious/Trade Name Registration If the landlord is doing business under a fictitious name that has not been properly registered, the landlord is barred from commencing or maintaining an eviction action.

55 OHIO Unauthorized Practice of Law

56 OHIO Conditions Counterclaims: R.C Must be a claim for nonpayment and tenant must file an answer and counterclaim on or before day of trial Tenant defense premised on landlord s breach of duties under R.C or the lease This breach is usually related to conditions and/or failure to repair that cause damages to tenant and/or tenant s possessions and/or reduces fair market value of unit. Tenant not required to use escrow process under R.C R.C allows tenants another option to protect themselves if they fail to use R.C Rent in escrow should be defense to eviction for nonpayment

57 OHIO Retaliation R.C (A) prohibits a landlord from bringing an eviction action against a tenant (1) because the tenant complained to an appropriate governmental agency of a code violation at the premises that materially affects health and safety, (2) because the tenant complained to the landlord of an RC violation, or (3) because the tenant joined a tenant organization Exceptions: R.C (A)(1)-(4). (1) Tenant is in default in payment of rent; (2) the condition about which the tenant complained was caused by the tenant or the tenant s guest; (3) the performance of the repairs necessary to achieve code compliance would effectively deprive the tenant of the use of the premises; (4) the tenant is a holdover for the tenant s term.

58 Discrimination When a tenant s race, color, religion, sex, handicap, familial status, or national origin is a significant factor in the landlord s decision to terminate the tenancy, a defense to the action may exist under one or more of the following statutes: a) The federal Fair Housing Act, 42 U.S.C b) Section 504 of the Rehabilitation Act of 1973 if handicap discrimination is alleged and the landlord receives federal financial assistance. c) Title II of the Americans with Disabilities Act if handicap discrimination is alleged and the landlord receives state or local government financial assistance. d) The Civil Rights Act of 1866, race discrimination. e) The Ohio Civil Rights Act, R.C (H)

59 Lease, Procedures for Termination A landlord must comply strictly with the termination procedure terms of the lease before instituting forfeiture proceedings

60 OHIO Deficient Content/Service of Notice to Vacate or Notice of Termination If a landlord fails to serve a notice to vacate, or serves a notice to vacate but its content or the service fails to comply with R.C , the trial court lacks subject-matter jurisdiction over the action.

61 Termination of HUD Subsidized Housing See HUD Handbook Chapter 8 It is important to remember that subsidized housing is an entitlement and not a privilege Therefore, a tenant must receive due process before his/her rights are deprived The procedures for the establishment of an action under the Federal Subsidized Housing Laws are set forth in 24CFR Part 247

62 Termination of Tenancy CFR , , 5.901, 5.903, and (Termination of tenancy in Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule) CFR 247.3, , , and (Fraud, minor violations, nonpayment of rent, state or local Landlord and Tenant Act) CFR 247.3, , , & (Substantial lease violations) CFR , , , & (Other good cause) CFR , , , & (Lease expiration)

63 Eviction for Drug Abuse & Other Criminal Activity 24 CFR , , 5.901, 5.903, and (Eviction in Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule) Note: These regulatory requirements do not apply to owners of housing assisted by the Rural Housing Service under Section 514 or Section 515 of the Housing Act of 1949

64 Providing Notice of Termination of Tenancy 24 CFR Termination Notice 24 CFR Eviction

65 Allowable Circumstances for Terminating Tenancy Material noncompliance Substantial lease violations Fraud Repeated minor violations Nonpayment of rent Drug abuse and other criminal activity Material failure to carry out obligations under a State Landlord and Tenant Act Other Good Cause

66 A Landlord s termination of an assisted housing tenancy is subject to a good cause requirement Good cause constitutes any material noncompliance with the rental agreement, material failure to carry out obligations under any state landlord and tenant act, certain criminal activity, certain alcohol abuse, or other good cause

67 Nonpayment of Rent Improperly Calculated Rent Nonpayment of improperly calculated rent by the property owner is not good cause for termination of subsidized tenancy.

68 Nonpayment of a Charge a) Nonpayment of a small charge may be a minor violation of the lease and, for that reason, might not be good cause to terminate an assisted housing tenancy. b) Nonpayment of a disputed charge may be good cause to evict an assisted tenant, but certain procedural requirements should be satisfied

69 Recertification Violations Failing to furnish accurate information at recertification is only good cause to terminate a project-based subsidized housing tenancy if the omission/misrepresentation was fraudulent. See HUD Handbook , pages 5-18 & 8-13

70 Unauthorized Occupant/Authorized Guest Regulatory definition of guest Guest, only for purposes of 24 CFR, part 5, subparts A and I, and parts 882, 960, 966, & 982, means a person temporarily staying in the unit with the consent of a tenant or other member of the household who has expressed or implied authority to so consent on behalf of the tenant. The requirements of parts 966 & 982 apply to a guest as so defined. 24 CFR Factors to consider in distinguishing between an occupant and a guest include (1) number of days per week or length of stay, (2) any use of another residence, (3) where clothes and other personal belongings are maintained, (4) where meals are eaten, (5) where mail is received, (6) address used for driver s license & other documents, & (7) other indicia of residency.

71 Non-Criminal Conduct of a Tenant s Child In determining good cause to evict, courts distinguish between children of tenants and children who are non-household member, non-guests

72 Non-Criminal Conduct of a Guest The conduct of a guest might not be good cause to terminate an assisted housing tenancy if (1) the tenant neither knows nor has reason to know that the guest is inclined to engage in improper conduct, (2) the tenant had no knowledge of the guest s improper conduct, and/or (3) the tenant could not reasonably have foreseen or prevented the guest s improper conduct R.C (A)(6) does not impose a strict liability standard on a tenant for a guest s improper conduct

73 Criminal Conduct of Tenant, Household Member, or Guest In general, HUD regulations define the criminal activities that are grounds for terminating an assisted housing tenancy Discretion of Landlord With one exception the conviction of a tenant or household member of manufacture of methamphetamine on the premises of assisted housing landlords have discretion in terminated assisted tenancies for criminal activities of tenant, household member, or guests

74 Criminal Conduct of Tenant, Household Member, or Guest To constitute good cause to evict, certain criminal activity must be engaged on or near the premises. Drug related criminal activity must occur on or near the premises for project-based subsidized housing or Section 8 voucher tenancy. See 24 CFR 5.858, 247.3(a)(3), (b)(1)(iii)(project-based); (c)(1)(voucher) Violent criminal activity must occur on or near premises to constitute good cause to terminate Section 8 voucher tenancy. 24 CFR (c)(2)(i)(C).

75 Criminal Conduct of Tenant, Household Member, or Guest To constitute good cause to evict, certain criminal activity must be a threat to health, safety, or peaceful enjoyment of the premises of other residents

76 Innocent Tenant Equity Defense Conduct of an uninvited person

77 Minor Violation of the Lease One minor violation of the lease is not good cause to terminate an assisted housing tenancy. 24 CFR 247.3(c)(2), (b)(3)(ii), 966.4(1)(2)(i), (a)(1) Although repeated minor violations of lease can be good cause to terminate an assisted housing tenancy, for projectbased subsidized housing, repeated minor violations are only good cause to terminate if (1) disrupt livability of the project; (2) adversely affect the health or safety of another person, (3) adversely affect another tenant s right to quiet enjoyment of the premises, (4) interfere with management of the project; or (5) have an adverse financial impact on the project. 24 CFR 247.3(c), (b)(3)

78 Low Income Tax Credit Program LIHTC. 26 U.S.C. 42(h)(6); IRS Revenue Ruling , C; IRS Revenue Procedure Good cause requirement for termination or nonrenewal of the lease

79 Tenant Based Section 8 Voucher Issues Service of Notice to Vacate on the PHA: A landlord s failure to serve the PHA with a copy of the notice to vacate is a defense to the eviction action. HUD Tenancy Addendum, 8(g)(2); 24 CFR (e)(2)(ii)

80 Tenant Based Section 8 Voucher Issues Abatement/Termination of Payments Based on Landlord s Failure to Make Repairs During period of PHA abatement of rent subsidy payments: Tenant payment of tenant s share of the rent precludes eviction for nonpayment of rent. 24 CFR (b), (b)(4)(iii)

81 Tenant Based Section 8 Voucher Issues Three potential defenses, in evictions for nonpayment of the rent subsidy portion of the rent. See Peter M. Iskin, Ohio Eviction and Landlord- Tenant Law (3 rd ed.), at ) R.C (B) defense 2) Equity 3) No tenant liability for that rent

82 Tenant Based Section 8 Voucher Issues PHA failure to make a rent subsidy payment to the landlord is not good cause for a landlord to terminate the lease. 24 CFR (b)

83 Contents of the Notice of Termination of Tenancy Notice 1) The Notice must state the Date of Termination of Tenancy 2) The Notice must state with Sufficient Specificity to allow the tenant to prepare a defense the reasons for termination of tenancy 3) Advise the tenant that remaining in the unit on the termination date specified in the notice may result in the owner seeking to enforce the termination in court, at which time the tenant may present a defense

84 Contents of the Notice of Termination of Tenancy Notice 4) Advise the tenant that he/she has 10 days within which to discuss termination of tenancy with the owner. The 10-day period begins on the day that the notice is deemed effective 5) **Advise that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process 6) Tenants must be given prior notice before termination of tenancy for other good cause

85 Contents of the Notice of Termination of Tenancy Notice 7) Be served on the tenant by: 1) Sending a letter by first class mail, properly stamped & addressed & including a return address, to the tenant at the unit address; and 2) Delivering a copy of the notice to any adult person answering the door at the unit. If no adult answers the door, the person serving the notice may place it under or through the door, or affix it to the door

86 Contents of the Notice of Termination of Tenancy Notice The date on which the notice is deemed received by the tenant is the later of: The date the first class letter is mailed; or The date the notice is properly given Service of the notice is deemed effective once the notice has been both mailed and hand delivered

87 REMINDER When provided to a tenant with a disability, this notice must be in a form accessible to the tenant (e.g., in Braille or audio form for a tenant with a vision impairment)

88 ** Does not apply to Section 8 tenant based voucher, although landlord is required to serve PHA with notice to vacate prior to filing an eviction

89 As a general rule, in federally subsidized housing the tenant must be served a federal notice to terminate the tenancy. This notice can be served or combined with a notice to vacate. (RC ) The landlord MUST strictly comply, not substantially, with the federal notice requirements

90 Specificity: State reasons for the proposed termination with specificity for tenant to prepare a defense. See 24 CFR To be specific, the notice must answer the questions of who, what, where, when and how as to each of the specific instances

91 IMPORTANT: It does not matter if the tenant is aware of the reason for termination. The notice fails for lack of specificity when: The notice is blanketed in broad language and does not refer to specific instances of conduct The notice fails to notify tenant of dates of the alleged incidents or the individuals involved in the alleged incidents The notice is a restatement of the lease language The notice only cites lease section that was violated ** Specific dates on which the alleged incidents occurred and the names of the individuals involved in the alleged incidents

92 Administrative Hearing/Meeting Defenses Noncompliance with grievance process or informal meeting is an eviction defense Section 8 project-based, section 236, section 202, & section 811. Informal meeting. HUD Handbook REV-1 at Ch.8. Right to a meaningful opportunity to be heard at administrative meeting The ten day meeting is to be an opportunity to resolve any issues that give rise to the notice of termination Meeting is an attempt to resolve the controversy to avoid the tenant s loss of the subsidized housing while protecting the rights of the landlord

93 ** Special Thank You to Emily Crabtree and Dianna Parker, Legal Aid Society of Columbus Abigail C. Staudt, Legal Aid Society of Cleveland ** Stephen E. Goldberg, Staff Attorney, Legal Services of Northern California Procedural Defenses to Evictions from Federally Subsidized Housing