After decades of using PIH Notices to guide the provision of enhanced vouchers, HUD’s Office of Public and Indian Housing (PIH) is proposing changes to the Housing Choice Voucher regulations in order to codify the policies in those Notices. The proposed rule would incorporate in regulation existing policies regarding eligibility criteria for receiving enhanced vouchers, the right of enhanced voucher households to remain in their apartments, procedures for addressing “over-housed” families, and the calculation of enhanced voucher housing assistance payments.
Enhanced Vouchers are a form of “Tenant Protection Vouchers” that are provided to tenants living in properties with private, project-based assistance when an “eligibility event,” as defined in Section 8(t)(2) of the Housing Act of 1937, takes place. The most typical “eligibility event” occurs when a project-based Section 8 contract expires and the owner decides not to renew (“opt outs” of) the contract. Prepayment of certain unrestricted HUD-insured mortgages (generally Section 236 and Section 221(d)(3) projects) is another type of eligibility event.
Enhanced Vouchers have two special features that make them “enhanced:”
- Right to Remain. A household receiving an enhanced voucher has the right to remain in their previously-assisted home, and the owner must accept the enhanced voucher as long as the apartment continues to be used by the owner as a rental property and has a rent that is comparable to unassisted units in the development or in the private market.
- Higher Voucher Payment Standard. An enhanced voucher pays the difference between the gross rent charged to a tenant and the new market-based rent charged by the owner after the housing conversion action, even if that new rent is greater than the public housing agency’s (PHA’s) basic voucher payment standard. In most cases a household continues to pay 30% of their income for rent and utilities. However, if a household has been paying more than 30%, then the household must continue to contribute toward rent an amount at least equal to the amount the household was paying at the time of the eligibility event.
The proposed rule would modify regulations governing Section 8 tenant-based assistance (Housing Choice Vouchers) at 24 CFR part 982 by adding provisions that pertain to enhanced vouchers currently reflected in existing HUD policies as detailed in Notices PIH 2001-41, PIH 2010-18, PIH 2011-46, and PIH 2016-02.
An example of an existing policy to be introduced into regulation concerns “over-housed” households, those living in an apartment with a bedroom size greater than the household qualifies for according to their PHA’s subsidy standards. If an over-housed household with an enhanced voucher wishes to remain in their development, they must move to an appropriate-sized apartment within 30 days when one becomes available. The household may elect to remain in their larger apartment, but the enhanced voucher payment will be based on what a regular tenant-based voucher would provide for an appropriate-sized apartment, and the household would have to pay the balance of the gross rent.
In the preamble to the proposed rule, HUD requests comments on the language pertaining to the right to remain. The proposed language states that an owner may not terminate the tenancy of a household with an enhanced voucher that exercises the right to remain, except as provided in Section 982.310. A preliminary analysis by advocates raises a concern about the exception provision because Section 982.310 exists for tenant-based vouchers and goes beyond current HUD guidance for enhanced vouchers, which only allows eviction for “good cause” at the end of a lease term.
HUD also requests comments on the language pertaining to screening when a household becomes entitled to an enhanced voucher. HUD does not propose to revise tenant-based regulation provisions regarding discretionary or required tenant screening. This could enable PHAs to re-screen households eligible for enhanced vouchers on grounds other than income eligibility.
Other preliminary concerns expressed by advocates include the failure of the proposed rule to articulate the owner’s obligation to accept enhanced vouchers, the duty of a PHA to inform both owners and tenants about the right to remain, and the necessity to have an enhanced voucher household’s rights included in a lease addendum.
For many years the National Alliance of HUD Tenants (NAHT), the Housing Justice Network, and the Preservation Working Group have urged HUD to issue enhanced voucher regulations in order to strengthen tenants’ rights to secure enhanced vouchers and remain in their apartments.
Comments are due December 27. The proposed rule is at: http://bit.ly/2ersOQm