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From: mmccreight@gbls.org
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Date: 1/17/01
Time: 9:08:19 PM
Remote Name: 209.6.68.59
I posted an item on the discussion board a few months ago, but got little response. Since the problem is persisting here in Mass., I thought I'd post this again.
A problem we've run into in Mass. is with clients converting from the Section 8 certificate to the voucher program, where the clients are willing to execute the necessary new documents, but the owner is not. The PHAs have taken the position that in these cases, the existing HAP contract terminates and no assistance continues to be paid. The client is then issued a voucher and given the usual search period to lease up (usually elsewhere), losing rights of continued participation if s/he doesn't do so within the search period.
While we have some recent caselaw from our Appeals Court providing some protections to tenants in this situation (saying that even if the HAP contract terminates, tenant hasn't usually agreed under the lease and HAP contract to assume the full contract rent, and therefore only remains liable for the prior share of the Section 8 rent), I assume that isn't the case elsewhere. I've also received a rumor that at least one PHA asked HUD for an opinion on this subject, and the Office of General Counsel wrote back and said the PHAs should do what they're doing (i.e., not continuing subsidy). This puts clients in a WORSE situation than they would be if the owner explicitly terminated the lease, because at least under 24 CFR 982.311(b), in that situation, the subsidy payments continue while the tenant contests eviction (including any state-authorized stays of execution or appeals of an eviction).
At one point, our office litigated a similar issue in 1983-1984, when HUD used to have "fixed term" leases and HAP contracts for the Section 8 certificate program, and owners were refusing to sign the new papers at the end of the lease & evicting tenants for nonpayment when subsidy wasn't paid. What eventually became 24 CFR 982.311(b)stemmed from that litigation (called Bradley v. Pierce, which became moot because of the new HUD Section 8 regulations in 1984).
Any experience in other parts of the country on this? Anyone heard what HUD or PHAs are doing? Any litigation? Any information would be helpful. This should have started to be a problem after 10/00, and should be intensifying as all certificate holders are switched to vouchers effective 10/01.