Demolition and Disposition

Resources / September 7, 2017

Section 18 of the United States Housing Act of 1937 (USHA) provides that public housing agencies (PHAs) may demolish or dispose of public housing with approval from the Department of Housing and Urban Development (HUD). A PHA submitting an application for the demolition of public housing must certify that the development or portion of the development it seeks to demolish is (1) obsolete as to physical condition, location, or other factors, making it unsuitable for housing purposes; and (2) no reasonable program of modification is cost-effective to return the development or portion thereof to useful life.

A PHA submitting an application for the disposition of public housing must certify that: (1) retention of the property is not in the best interests of the public housing residents because of conditions in the area surrounding the development that adversely affect the health or safety of the residents or the feasible operation of the development, (2) that retention is not in the best interest of the public housing residents because disposition allows the acquisition, development or rehabilitation of other properties that will be more efficiently or effectively operated as low-income housing, or (3) that the PHA has otherwise determined that disposition is appropriate for other reasons as set forth in the statute. In the event of a disposition, the PHA may be required to provide residents an opportunity to purchase the development.

A PHA must also certify that it consulted with the residents and local governmental officials, that the PHA Annual Plan authorized the action and that the PHA will comply with the relocation provisions of Section 18.

Depending on the circumstances, advocates and tenants have sought to stop or modify a PHA’s plans to demolish or dispose of public housing and/or condition HUD approval on certain actions or outcomes. When relevant, advocates have argued that a PHA did not meet the statutory requirements of Section 18 and have also raised claims that the proposed demolition or disposition violated civil rights statutes, environmental laws and/or applicable state law.

Statutory and Regulatory Authority

42 U.S.C. § 1437p (Section 18 of USHA regarding demolition and disposition of public housing)
24 C.F.R. Part 970 (Public Housing Program—Demolition or Disposition of Public Housing Projects)

HUD Forms, Regulations, and Guidance

Prior to a demolition or disposition, PHAs are required to fill out and submit HUD form 52860, Inventory Removal Application, to the HUD Special Application Center (SAC) along with certifications for HUD’s review and approval or disapproval.
In October 2014, HUD published a proposed rule that would revise the regulations that govern the demolition and disposition of public housing, “Public Housing Program: Demolition or Disposition of Public Housing Projects, and Conversion of Public Housing to Tenant-Based Assistance.” NHLP submitted comments on the rule on behalf of HJN. The comments focused on ways that HUD could improve the rule including strengthening resident consultation and participation, relocation, and civil rights requirements and maintaining the maximum number of affordable units to avoid the slow loss of the nation’s affordable housing stock.
HUD maintains guidance to PHAs and other information about demolition and disposition authorized under Section 18 of the U.S. Housing Act of 1937.

Cases

In Jones v. HUD, No. 07 C 50142 (D. Il. ____) tenants challenged HUD’s approval of a partial demolition of the development on several grounds, asserting that the PHA did not demonstrate that the units were obsolete and that there was no reasonable cost effect plan to return the development to useful life and that the PHA failed to consult with residents or the PHA’s board. Tenants also challenged the adequacy of the relocation plan, which did not ensure comparable replacement dwellings for displaced tenants. The PHA and HUD submitted to a consent decree that provided substantial protections to the displaced tenants in exchange for the tenants’ agreement to the partial demolition. NHLP’s Housing Law Bulletin featured an article that describes the Jones case, the settlement, and the change in HUD policy regarding partial demolitions.
In Arroyo Vista Tenant Association v. City of Dublin, No C 07-05794 (N.D., July 28, 2008), tenants filed suit in state court challenging the PHA’s disposition and demolition plan for failure to notify residents of the proposal in violation of federal disposition and demolition requirements and failure to provide residents with relocation assistance in violation state relocation assistance laws. After removal, the federal court ruled that tenants had a private right of action to enforce their relocation rights and ordered the PHA to notify the tenants of their rights. NHLP’s Housing Law bulletin featured an article about the case, “Tenants can Sue for Violation of Public Housing demolition Law.”
Anderson v. Jackson, C.A. No. 06-3298 (E.D. La. ____ 2006). Tenants from four large public housing developments in New Orleans brought suit in federal court against the local PHA and HUD, alleging that their failure to repair and reopen the developments from which the tenants were displaced due to hurricane Katrina violated the Fair Housing Act, alleging disparate treatment, disparate impact and a breach of the duty to affirmatively further fair housing; the United States Housing Act of 1937, alleging constructive demolition and actual demolition; the Equal Protection Clause, alleging discriminatory intent and various state laws, including constructive eviction and breach of contract. Tenants and advocates also filed letters with HUD for the purpose of influencing HUD to disapprove the application.

Other Resources

On April 28, 2010, NHLP provided testimony to the United States House of Representatives Committee on Financial Services Subcommittee on Housing and Community Opportunity Hearing on Legislative Proposals to Preserve Public Housing.