HUD Creates New Eviction Requirements for Public Housing and PBRA

In a notice titled “Extension of Time and Required Disclosures for Notification of Nonpayment of Rent,” HUD updates its regulations–through an interim final rule–to give itself the authority to require that public housing and project-based rental assistance (PBRA) developments give tenants the opportunity to receive emergency rent relief before eviction. Specifically, when there is federal funding available due to the declaration of a national emergency, PHAs with public housing and owners with PBRA properties must do the following at HUD’s discretion:

  • Provide at least 30 days from the date a tenant receives a notice of lease termination for failure to pay rent before terminating the tenant; and
  • Provide information (e.g., information about how to apply for and receive emergency federal funding) to the tenant as determined by HUD.

HUD will publish another notice outlining the specific information that must be included in the lease termination notification. That notice will also provide the requirements for PHAs and owners to provide the information in an accessible manner for effective communication for people with disabilities and people with limited English proficiency (LEP).

These requirements apply to public housing and PBRA, which is defined in this rule to include Section 8, Section 8 Moderate Rehabilitation, Section 202/162 Project Assistance Contract, Section 2020 Project Rental Assistance Contract (PRAC), Section 811 PRAC, Section 236 Rental Housing Assistance Program and Rent Supplement. The rule does not apply to the Housing Choice Voucher program.

The interim final rule will become effective in 30 days after publication of the notice in the Federal Register.

Comments for the rule will be due within 30 days of publication of the notice in the Federal Register.

A pre-publication copy of the rule may be found here.

US Supreme Court Overturns CDC Eviction Moratorium

On Thursday, August 26, the United States Supreme Court vacated the stay that has allowed the current CDC eviction moratorium to continue. The order vacating the stay and dissent arguing to keep the stay can be found here. It confirms lower court decisions that the CDC did not have statutory authority to impose a nationwide eviction moratorium and states, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. The application to vacate stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted.”

The Court order placed considerable responsibility on Congress to act on a federal eviction moratorium, “It is up to Congress, not the CDC, to decide whether the public interest merits further action here. And Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration.”

NAHRO continues to meet and work with HUD to develop solutions that will provide housing authorities the flexibility to minimize local evictions and will provide additional information when it becomes available. NAHRO encourages housing authorities, landlords, and tenants to work together to avoid COVID related evictions and to review HUD’s Eviction Prevention and Stability Toolkit for information and best practices. A White House Fact Sheet has also been released that provides additional actions that are being taken to prevent eviction and increase access to emergency rental assistance funds.

CDC Extends Modified Eviction Moratorium

On August 3, 2021, Dr. Rochelle Walensky, Director of the Centers for Disease Control and Prevention (CDC), signed an order halting evictions between August 3, 2021 and October 3, 2021 in areas rapidly increasing COVID cases. The order is very similar to the previous CDC eviction moratorium that was in place from September 4, 2020 through July 31, 2021 as definitions of “covered persons” and “eviction” remain the same. Additionally tenants that have already signed a Declaration Form do not need to sign a new one and new declaration must be accepted in applicable areas.

The major change is where the August 3rd eviction moratorium applies, “This Order applies in U.S. counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2 [COVID] as defined by the CDC, as of August 3, 2021.” During comments at the White House today, President Biden said that the new CDC eviction moratorium would cover about 90% of renters. On CDC COVID Data Tracker, the community transmission rate for individual counties can be found. The new eviction order allows for the applicable counties to change. The order will apply to counties that enter substantial or high community transmission levels after August 3, 2021, on the date the county enters substantial or high level. Counties that are no longer experiencing high or substantial levels of community transmission for 14 consecutive days will no longer have the order apply to them unless they again experience substantial or high levels of community transmissions while the order is in effect.

NAHRO supports the CDC putting in place a modified eviction moratorium until October 3 which will allow for continued and additional emergency rental assistance program (ERAP) funds to reach eligible tenants and landlords. NAHRO encourages the Administration, Congress, ERAP grantees, landlords, and tenants to work together to simplify and streamline the distribution of ERAP funds to eligible tenants and landlords so the eviction moratorium is not needed after October 3, 2021. NAHRO also encourages the Treasury Department and ERAP grantees to engage HUD and the thousands of local Public Housing Authorities to maximize the outreach and communication to eligible landlords and tenants.

Eviction Moratorium to Expire Saturday; NAHRO Urges Extension

Despite efforts from House Democratic leaders to extend the federal eviction moratorium, which expires Saturday, July 31, no vote was issued to extend the order as of Friday afternoon. Earlier this week, House Speaker Nancy Pelosi (D-Calif.) publicly advocated for the Biden administration to act unilaterally to protect renters at risk of eviction due to the ongoing coronavirus pandemic.

About 11 months ago, the Centers for Disease Control and Prevention (CDC) enacted the federal eviction moratorium to prevent the spread of the deadly virus among families and individuals that could be at high risk if made homeless through eviction. The public health measure has been extended on several instances, with the last extension made in June. The moratorium offered uniform protections to renters across the nation.

With the COVID-19 delta variant surging across the nation, now is not the time to put vulnerable families at risk by ending the eviction moratorium. NAHRO calls on Congress and the Administration to extend the moratorium through at least the end of September 2021.

Whether or not the eviction moratorium expires, NAHRO’s housing agency members remain committed to using every available resource to keep as many people in their homes as possible. Nationwide, NAHRO members continue to work with their residents and with local and national partners to provide support and aid – especially to those who have been most impacted by the pandemic. We are continually looking for new and better ways to help.

The Emergency Rental Assistance Program is a vital and cost-effective tool to help people stay in their homes. As Treasury, HUD, and state and local entities work to distribute these much-needed funds as quickly as possible, we also look forward to the passage of a robust FY 2022 HUD budget and additional housing resources that will further help to provide the safety and stability of a home to all who need it.

NAHRO Interim CEO Mike Gerber statement on extending the eviction moratorium and quickly distributing Emergency Rental Assistance Program funds.

As more information is released on the status of the eviction moratorium, NAHRO will continue to provide updates.

White House Summit on Eviction Prevention Best Practices

At a White House summit on eviction prevention, researchers and experts in the field shared resources and best practices from around the country.

After outlining documented long-term health and economic impacts of evictions, Matthew Desmond, director of the Eviction Lab at Princeton, focused on the problems present in eviction courts. Since so few municipalities guarantee families facing an eviction the right to counsel, many families simply don’t show up because they don’t think they can win. Labeling eviction courts those without “justice or fairness,” Desmond called for advocates to focus three alternate approaches:

  1. Advocacy – including the right to counsel, with either a lawyer or a caseworker
  2. Assistance – wraparound social services
  3. Alternative Processes – eviction diversion  

Desmond urged advocates to focus as much as possible on early stage interventions, because a third of families move between notice and filing, court records can follow families and make it harder to move into a good home, and because families can still end up moving or being harmed by court proceedings without an official eviction. Associate Attorney General Vanita Gupta also recommended that state courts consider issuing orders requiring landlords to apply for emergency rental assistance before filing, and alerting litigants about availability of rental assistance.  

To help stand up new eviction diversion programs that include these three pieces, the National Center for State Courts has developed an eviction diversion program that offers models, resources, and technical assistance here. Multiple administration officials repeated in today’s summit that Treasury made it clear that the $350 billion from the American Rescue Plan can be used for court-supported eviction diversion programs.

Best Practices

Experts from the field then shared their knowledge about how to make these programs work in practice. Rasheedah Phillips, Managing Attorney of Community Legal Services of Philadelphia, and Michigan Supreme Court Justice Bridget Mary McCormack both recommended that diversion programs need a right to counsel or other tenant representation. Philadelphia passed a right to counsel law in 2019, and uses trained mediators, housing counselors, and legal representation depending on tenant need. However, Michigan has only included a right to counsel in its emergency diversion program for COVID, and it has made a significant difference in both application rates and successful cases. Prior to this program, only 4% of tenants in Detroit had representation in eviction cases.

Philadelphia has also recently passed the Renters Access Act, which prohibits landlords from rejecting potential tenants solely because of evictions or low credit scores, prohibits rejections based on failure to pay rent or utility bills during the pandemic, and requires landlords to inform potential tenants why they were rejected.

From the landlord perspective, Gilbert Winn of WinnCompanies, which houses over 45,000 tenants in more than 15 states, spoke about the program his company launched to prevent evictions, which WinnCompanies believes can serve as a blueprint for other landlords going forward. This included:

  • Long-term, sustainable payment agreements to have backpay addressed
  • Pre-court checklist before any staff can file for eviction
  • Incentives to property staff and property legal counsel to lower eviction filings

With zero evictions in the last 15 months with all 15,000 participating families, the program has been extremely successful, and WinnCompanies intends to use it into the post-pandemic period.

More resources on eviction prevention can be found here.

Eviction Moratorium Upheld by US Supreme Court

On June 29, 2021, the United States Supreme Court, in a 5-4 decision, allowed a stay of a US District Court order vacating the Centers for Disease Control and Prevention (CDC) Eviction Moratorium to stay in place. This means that the recently extended CDC Eviction Moratorium will remain in effect until July 31, 2021.

Justice Kavanaugh in a short opinion stated that, “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” Justice Kavanaugh further went on to say that because July 31, 2021 is only a “few weeks” away and those weeks will allow for additional time to distribute the Emergency Rental Assistance Program funds appropriated by Congress; therefore, Justice Kavanaugh voted to deny the removal of the stay.

NAHRO encourages PHAs, property owners, and landlords to use the resources available in HUD’s updated Eviction Prevention and Stability Toolkit to work with the residents to minimize evictions.

CDC Extends Eviction Moratorium, White House Promotes Housing Stability

On June 24, the Director of the Centers for Disease Control and Prevention (CDC), Dr. Rochelle Walensky, signed an extension of the CDC order halting residential evictions due to non-payment of rent. The CDC eviction moratorium is now in effect until July 31, 2021, a one-month extension.

Existing and new tenant declarations are in effect until July 31, 2021. A CDC statement further provided that the CDC intends this to be the final extension. In preparation of the end of the CDC eviction moratorium on July 31 ,2021; PHAs, property owners, and landlord are encouraged to use the resources available in HUD’s updated Eviction Prevention and Stability Toolkit to work with the residents to minimize evictions.

Additionally, the White House released Fact Sheet: Biden-Harris Administration Announces Initiatives to Promote Housing Stability By Supporting Vulnerable Tenants and Preventing Foreclosure. The fact sheet highlights a number of actions that the Administration is taking to help state and local governments prevent evictions with a focus of local court eviction diversion programs and speeding the process of distributing emergency rental assistance funds.

HUD Updates Eviction Prevention and Stability Toolkit

HUD has updated its eviction prevention and stability toolkit. The toolkit provides ten items that can help PHAs and Housing Choice Voucher landlords stabilize families during the COVID-19 pandemic. The toolkit provides the following documents:

The updated eviction prevention and stability toolkit can be found here.

Federal Judge Vacates CDC Eviction Moratorium

A federal judge has set aside and vacated the eviction moratorium put in place by the Centers for Disease Control and Prevention (CDC). On May 5, Judge Dabney Friedrich of the United States District Court for the District of Columbia issued an opinion that was narrowly focused on one question, “Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium?” Judge Friedrich answered the question, “It does not” and further explains that the CDC and the Secretary of the U.S. Department of Health and Human Services exceeded the authority granted to them by the Public Health Service Act by issuing a nationwide eviction moratorium.

Judge Friedrich’s opinion can be found here. PHAs must continue to follow all local (state, county, city) eviction moratoriums and local landlord tenant laws. NAHRO will continue to follow this case and share additional information as it becomes available.

UPDATE (5/5/2021, 2:26pm ET) – The US Justice Department is appealing to the United States Court of Appeals for the District of Columbia Circuit the US District Court’s order vacating the CDC eviction moratorium.

UPDATE (5/5/2021, 3:31pm ET) – The US Justice Department has issued a statement respectfully disagreeing with the District Court’s decision and confirming that they have filed a notice of appeal of the decision. The statement is available here.

UPDATE (5/6/2021, 8:48am ET) – Judge Friedrich has issued an administrative stay putting her order vacating the CDC eviction moratorium on hold. The court will allow both parties to submit briefs against and in support of the stay and will then make a further decision on to keep the stay in place or not. As of this update, the CDC eviction moratorium remains in effect.

HUD Restarts Inspections in June

On April 23, HUD announced that the department plans to begin inspections for public housing and project-based rental assistance (PBRA) properties starting June 1. HUD Secretary Marcia Fudge noted that HUD “must take steps to ensure the whole health and well-being of the households we serve—including the conditions and quality of housing. We look forward to working with residents to ensure safe and successful inspections.”.

HUD will focus on properties that are considered “high priority” – those that have not been inspected for a significant amount of time or those that have failed their last inspection. Most of the PHA properties on HUD’s high priority inspection list have inspection scores below 60. HUD will also begin inspecting agencies participating in the National Standards for the Physical Inspection of Real Estate (NSPIRE) Demonstration. HUD will inform PHAs if any of their properties fall on the list of targeted inspections for 2021 on Monday, April 26. HUD will further provide notice to PHAs and owners 28 days before any inspection takes place at a property. HUD inspections will include enhanced safety protocols as established by the Centers for Disease Control (CDC), and HUD has entered a Memorandum of Understanding (MOU) to allow contracted inspectors to access COVID-19 vaccinations through the Department of Veteran’s Affairs, if they inspector so chooses.

If a resident does not feel comfortable with an inspector entering their unit, the resident may opt out from the inspection. In those instances, another unit will be selected for an inspection.

HUD will not be issuing inspection scores to PHAs in 2021 unless the agency specifically asks for one. Rather, inspectors will only be looking for life threatening deficiencies on the property. Life threatening deficiencies must be fixed within 24 hours of the inspection. HUD will be relying on NSPIRE standards to determine what constitutes a life-threatening deficiency. HUD recently posted an NSPIRE Life-Threatening Deficiencies fact sheet here. Multifamily properties will be inspected using UPCS and the inspections will be scored.

HUD will no longer be using the heat-map created last fall to determine which coronavirus hot-spots in the country to avoid. Rather, HUD will be inspecting units in all parts of the country, although attention will be paid to places that are seeing upticks in their COVID-19 case numbers.

HUD’s announcement can be found here.