National Housing Law Project Housing Law Bulletin

The key provision in the Senate bill is Section 303. It prohibits PHAs from terminating a tenancy except for breach of the lease or other good cause, during the term of the lease. The actual language is:

This Senate bill would also apply to project-based Section 8 housing and Section 202 and Section 811 housing, because the definition of federally assisted housing includes those programs.² Thus, tenants in those programs could also be evicted without good cause once their leases expire.

Unlike the Senate bill, the House bill does not repeal public housing tenants’ good cause protection, but it does so for the project-based Section 8 programs, including the New Construction, Substantial and Moderate Rehabilitation, property disposition, Loan Management Set-Aside, project-based certificates, preservation and Rent Supplement conversion [to] Section 8 programs. The applicable language of H.R.2 is complicated, but it begins with Section 601(f)(5), which provides that:

H.R.2, § 324 (emphasis added). Section 643, to which Section 324(2) refers, provides that:

Precedent for limiting the good cause protection to the term of the lease and no longer requiring good cause for a refusal to renew a lease comes from the amendments to streamline the Section 8 program that were first enacted in the Fiscal Year 1996 Appropriations Act. Those streamlining provisions changed the statute on certificate and vouchers for FY 1996 to make the good cause for eviction requirement apply only during the term of the lease.⁴ The statutory language with the 1996 amendment is:

Limiting the good cause protection in the certificate and voucher programs to the term of the lease is part of Congress’ effort to make the certificate and voucher programs more acceptable to private landlords so that they will be willing to accept certificate and voucher holders. That effort is in response to the landlords’ study of the certificate and voucher programs in which concerns about not being able to evict a tenant at the end of the lease term was one of the barriers to increased landlord participation.⁶ The idea was that the certificate and voucher programs should be made more acceptable to private landlords, because the success of those programs is so dependent upon the willingness of landlords in the private market to accept certificate and voucher holders when they apply for an apartment.

There is not a comparable concern that the good cause requirement would discourage public housing authorities or Section 8 project-based landlords from participating in the programs or renting out their units. PHAs and project-based Section 8 landlords are already in the programs and, given the funding cuts, new landlords are not going to be entering either program often in the future. Even if there were new funding that could be provided to housing authorities or to new private HUD-assisted landlords, the good cause requirement would not discourage them from participating. PHAs have had the good cause requirement since the late 1960s and it has not discouraged their participation. Private, HUD-assisted landlords have been under the good cause requirement for more than 20 years, and there has been no shortage of landlords to consume whatever funding HUD has had to give out. Thus, whatever justification there may be for limiting the good cause protection in the certificate and voucher programs, it does not carry over to public housing or project-based Section 8.

The good cause for eviction protection is not a principle of law that should be lightly tampered with by Congress. For public housing, it began with a decision from the Court of Appeals from the District of Columbia, Rudder v. United States,⁷ in which the court issued the oft-quoted statement:

Given this venerable history, it certainly would be unwise for Congress to eliminate the good cause protection for either public housing or project-based Section 8 tenants by sheer inadvertence. More importantly, the protection against being arbitrarily evicted from one’s home deserves to be preserved by the Congress, not repealed. That is even more the case because there is no justification for the repeal. Neither the public housing authorities nor the private landlords’ trade associations sought this modification or testified in favor of it at the hearings. Before these two bills come out of conference, the responsible representatives and senators should strip the language from both bills that limits the good cause protection to the lease term. Between now and then, tenants and advocates should deliver that message firmly to their members of Congress.

1. S.462, §§ 303 and 306, 143 CONG. REC. S10069, S10089 (Sept. 26, 1997).
2. S.462, § 305(1).
3. H.R.2, § 601(f)(5), 143 CONG. REC. H2619 (May 14, 1997).
4. Pub. L. No. 104-134, § 203 of § 101(e), 110 Stat. 1321-281 (Apr. 26, 1996).
5. Pub. L. No. 104-204, § 201(e), 110 Stat. 2874, 2893 (Sept. 26, 1996); Pub. L. No. 105-65, § 201(b), 111 Stat. 1343, 1364 (Oct. 27, 1997).
6. See ABT, Final Report on Recommendations on Ways to Make the Section 8 Program More Acceptable in the Private Rental Market (Mar. 1994). See also A Critique of Landlord-Commissioned Report on the Certificate and Voucher Programs, 24 HOUS. L. BULL. 35 (May/June 1994).
7. 226 F.2d 51 (D.C. Cir. 1955).
8. Id. at 53.
9. HUD, Consolidated Annual Contributions Contract, Part II, HUD Form 53011, § 203(B) (Nov. 1969).
10. 317 F. Supp. 1122 (D. Mass. 1970), aff’d on other grounds, 438 F.2d 781 (1st Cir. 1971).
11. Id. at 1129-30.
12. Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 943 (2d Cir. 1974).
13. 24 C.F.R. Part 450 (1977), 41 Fed. Reg. 43,330 (Sept. 30, 1976).
14. 12 U.S.C.A. § 1715z-1b (West 1989).
15. 42 U.S.C.A. § 1437d(l)(4) (West 1994), added by Pub. L. No. 98-181, § 204, 97 Stat. 1177 (Nov. 30, 1983).