Interim Final Rule Requires Public Housing and PBRA Tenants to Receive ERA Information in 30-Day Eviction Notices

HUD published an interim final rule in the Federal Register on October 7 that applies when there is a national emergency such as the current pandemic and when federal funding is available to assist tenants in public housing and properties with project-based rental assistance (PBRA) who are facing eviction for nonpayment of rent. The interim final rule will allow HUD to require providers of public and PBRA housing to give tenants facing eviction for nonpayment of rent at least 30 days’ notice before a tenant must vacate a unit. That notice must give tenants information about the availability of federal emergency funding intended to prevent evictions. In addition, PHAs must provide all public housing tenants information about the availability of federal emergency rental assistance. HUD will publish notices providing details about the content of required tenant notifications. Comments are due by November 8, the day the interim final rule takes effect.

The interim final rule applies to public housing and private, multifamily properties with project-based rental assistance (PBRA), which includes: Section 8 Project-Based Rental Assistance, Section 8 Moderate Rehabilitation, Section 202 Supportive Housing for the Elderly programs (Section 202/162 Project Assistance Contract and Section 202 Project Rental Assistance Contract (PRAC)), Section 811/PRAC Supportive Housing for People with Disabilities, Section 236 Rental Housing Assistance Program, and Rent Supplement. Note that the interim final rule does not apply to Housing Choice Vouchers.

HUD strongly encourages (but does not require) PHAs and owners of PBRA properties to work with tenants who are eligible for federal Emergency Rental Assistance (ERA) funding and to delay lease terminations for any tenants whose application for ERA assistance is still pending after a 30-day period.

HUD determined that in the immediate aftermath of the Supreme Court’s decision ending the CDC eviction moratorium, the agency needed to act to prevent a wave of preventable evictions. Even when the CDC moratorium was in effect, HUD issued guidance recommending that all PHAs make tenants aware of federal ERA funding and guidance about accepting ERA funding in PBRA housing. Nonetheless, many tenants (including in HUD-assisted properties) may be unaware of or do not understand how to access ERA resources, have been unable to access funds in time, or have incorrectly believed that they need not apply for ERA because rental obligations were suspended during the eviction moratorium. HUD has concluded that many tenants may be eligible for ERA, yet they are not benefiting from it, thus requiring HUD to take the action represented by the interim final rule.

HUD also issued guidance requesting PHAs and PBRA owners to work with tenants to recertify their rents if they lost their jobs or otherwise had diminished income due to reduced work hours, thus effectively lowering the rent payment HUD-supported tenants had to make, helping them avoid eviction. However, not every tenant who could benefit from income recertification has benefited, because PHAs and PBRA owners did not reach out to offer recertification or because tenants chose not to seek recertification. In addition, PHAs and PBRA owners might permit income recertification for rent going forward, but not recertify the loss of income retroactively, meaning that coverage of rent arrears by ERA could still be necessary to help prevent evictions.

The interim final rule is not limited to the current pandemic. Whenever funding is available to assist tenants with nonpayment of rent during a national emergency, HUD may determine that tenants facing eviction for nonpayment of rent must be provided with adequate notice and time to secure that funding. When HUD makes such a determination, a PHA or PBRA owner seeking to evict for nonpayment of rent must provide a tenant with information as required by HUD for accessing the funds being made available due to the emergency. HUD will publish a notice outlining information to be included in the lease termination notification to assist eligible tenants in obtaining funds during the emergency.

To ensure tenants facing eviction for nonpayment of rent are provided an adequate opportunity to access emergency funding, the interim final rule also extends the lease termination period to at least 30 days following the required notification, an extension from the current 14-day notice requirement. Currently, the CARES Act requires a 30-day notice prior to eviction, but it does not require the notice to provide information about ERA.

For the public housing program, the interim final rule also provides that HUD may require all tenants, not just those facing eviction for nonpayment of rent, be provided immediate notice of the availability of emergency funding. Such notice may be posted in a public area, emailed to all tenants, or otherwise provided to groups of tenants rather than individuals.

HUD writes that it considered imposing an eviction moratorium for the public and PBRA housing, which would have allowed more time for tenants to seek ERA funding. However, HUD concluded that it did not have statutory authority to do so. HUD also considered imposing a requirement on PHAs and PBRA owners to apply for emergency funding on behalf of tenants before proceeding with eviction but chose not to do so even though some jurisdictions administering ERA require it. In addition, HUD considered requiring retroactive income recertifications and repayment plans for tenants who would qualify for ERA assistance – policies NLIHC and the National Housing Law Project urged HUD to do at the outset of the pandemic. While HUD has encouraged PHAs and PBRA owners to carry out such policies, it decided to not require them because “implementing these changes by regulation would be overly burdensome and create multiple implementation challenges.”

The interim final rule in the Federal Register notice is at: https://bit.ly/3DjPV85

More information about the public housing program is on page 4-30 of NLIHC’s 2021 Advocates’ Guide.

More information about the Project-Based Section 8 program is on page 4-64 of NLIHC’s 2021 Advocates’ Guide.

More information about the Section 202 Supportive Housing for the Elderly program is on page 4-71 of NLIHC’s 2021 Advocates’ Guide.

More information about the Section 811 Supportive Housing for Persons with Disabilities program is on page 4-74 of NLIHC’s 2021 Advocates’ Guide.