HUD published a final rule, “30-Day Notification Requirements Prior to Termination of Lease for Nonpayment of Rent,” in the Federal Register on December 13. The rule requires tenants to receive a written notice at least 30 days before a formal judicial eviction is filed due to nonpayment of rent if they live in public housing or one of several project-based rental assistance (PBRA) properties. The final rule applies only to evictions for nonpayment of rent (as did the proposed rule published on December 1, 2023). In the preamble, HUD states that the final rule adopts the proposed rule with only several revisions. The preamble also explains why HUD did not adopt a number of public comments, including comments submitted by NLIHC. Nonetheless, legal services advocates are pleased with the final rule, which will go into effect on January 13, 2025.
For the purpose of the proposed rule, “PBRA” includes: Section 8 Project-Based Rental Assistance, various Section 202 Supportive Housing for the Elderly programs [Section 202/162 Project Assistance Contract (PAC), Section 202 Project Rental Assistance Contract (PRAC), and Senior Preservation Rental Assistance Contract Projects (SPRAC)], and two Section 811 Supportive Housing for Persons with Disabilities programs [Section 811 PRAC, Section 811 Project Rental Assistance Program (811 PRA)]. Notably, the rule does not apply to Housing Choice Vouchers (HCVs) or Project-Based Vouchers (PBVs).
In the preamble to the final rule, HUD states that the intent of the rule is to remove a patchwork of notice requirements among HUD programs and to reduce the number of preventable evictions filed against HUD-assisted tenants. HUD acknowledges that “evictions from HUD-assisted housing could be prevented with more time and notice which might help all parties work together to pay the rent owed or attain a rent hardship exemption, rent recalculation, and/or other financial rental assistance.” HUD writes that the 30-day notice requirement is a minimum and that public housing agencies (PHAs) and owners (of a private property subsidized by one of the PBRA programs) can provide longer notice periods at their discretion. HUD claims it will issue sample notice language that can be used by PHAs and owners and indicates that PHAs and owners may also draft their own notices as long as they include the required elements.
The New Provisions
The new provisions are woven into existing regulations of the respective programs. For example, the following is from the Section 8 PBRA regulations at 24 CFR part 880, with modified or new text in italics:
§ 880.606 Lease requirements
- Leases must contain a provision or addendum stating that tenants will receive notification at least 30 days before a formal judicial eviction is filed [due to nonpayment of rent]. (The proposed rule text read, “…at least 30 days prior to termination of the lease for nonpayment of rent.”)
§ 880.607 Termination of tenancy and modification of lease
- The final rule added two new provisions:
- A PHA or owner must not give tenants a termination notice [due to nonpayment of rent] before the day after the rent is due according to the lease.
- A PHA or owner must not proceed with filing an eviction if the tenant pays the alleged amount of rent owed within the 30-day notification period.
- In the case of failure to pay rent, the termination notice shall be effective no earlier than 30 days after receipt by the tenant. (No change from proposed rule.)
- All termination notices in cases of failure to pay must include:
- Instructions on how the tenant can cure the nonpayment of rent violation, and include:
- an itemized amount, separated by month of alleged rent owed by the tenant,
- any other arrearages allowed by HUD and included in the lease, separated by month,
- the date by which the tenant must pay the amount of rent owed before an eviction for nonpayment of rent can be filed.
(NLIHC and other advocates urged HUD not to include as “rent” arrearages such as late fees.)
- Information on how the tenant can recertify their income and apply for a hardship exemption, or [for public housing residents] how to switch from flat rent to income-based rent.
- In the event of a Presidential declaration of a national emergency, such information as required by the Secretary. [A “national emergency” would be similar to the one declared during the COVID-19 pandemic, as distinct from a “national disaster” such as a hurricane.]
Shortcomings in the Final Rule
A major shortcoming of the proposed and final rule is that it does not cover Section 8 Housing Choice Vouchers (HCVs) or Project-Based Vouchers (PBVs), including tenants in former public housing developments that have converted to PBVs through the Rental Assistance Demonstration (RAD). HUD declined to add HCVs and PBVs, claiming it would harm landlord recruitment and that it would be difficult to inform landlords about the rule and enforce it due to established state and local laws governing private market tenant-landlord lease agreements. Regarding PBVs in RAD projects, HUD indicated that it will amend the RAD Notice to reflect the 30-day notice for RAD PBVs.
The preamble declares – but the rule text does not explicitly state – that if the tenant pays the full amount of the alleged rent owed but not the arrearages, the nonpayment will still be considered cured and an eviction for nonpayment of rent cannot be filed.
In the preamble, HUD “strongly recommends the best practice of entering into a rental repayment agreement as an alternative to a lump-sum payment for past due amounts.” NLIHC and others urged HUD to require rent repayment agreements that ensured households paid no more than 40% of their income for current rent due plus a portion of past due rent, combined. NLIHC and others also urged HUD to prohibit lump-sum repayments if tenants could not afford them. However, HUD declined to include in the final rule text even a recommendation that PHAs and owners use rent repayment agreements in order to prevent evictions, which seems contradictory to HUD’s stated intent of reducing the number of preventable evictions. The final rule is also silent regarding lump-sum repayments, an amount which some HUD-assisted tenants might not be able to gather in 30 days. The preamble indicates that HUD intends to issue updated repayment agreement guidance in the future.
The proposed and final text requires PHAs and owners to provide tenants with information on how to recertify their income (if the household has experienced a loss of income) and how to apply for a hardship exemption. NLIHC recommended that HUD add text indicating that, subsequent to an income reexamination, rent reductions be applied retroactively to the date the reduction in income started – which is not the case for all programs. NLIHC also recommended the rule text explicitly state that a household cannot be evicted for nonpayment of rent during the 90-day period starting on the date the household requested a hardship exemption. HUD declined to include NLIHC’s recommendations.
NLIHC suggested that each program’s regulations clearly state a PHA’s and owner’s legal obligation to make information provided to tenants in accessible formats to ensure effective communication for people with disabilities and for people with limited English proficiency. HUD declined to add a simple reminder, asserting that PHAs and owners must already comply with Section 504 of the “Rehabilitation Act,” Title II of the “Americans with Disabilities Act” (ADA), and Title VI of the “Civil Rights Act of 1964.”
NLIHC recommended that the required notice inform residents about any available state, local, or charitable rental assistance programs, anti-eviction resources, right to counsel laws, and free legal assistance. HUD declined to include this recommendation, asserting it would be “impractical” for PHAs and owners.
As HUD rightly acknowledges in the preamble to the proposed rule, the CARES Act 30-day notice to vacate requirement for nonpayment of rent is still in effect for all CARES Act covered properties, which include those assisted with vouchers. NLIHC urged that the final rule include text clearly stating that the CARES Act 30-day notice requirement remains in effect, including for voucher-assisted tenants. Such text would be a crucial regulatory reminder because, as many legal services attorneys report, there are many instances of owners and judges demonstrating that they are not aware that this CARES Act provision is still in force. HUD declined to add a simple reminder about the CARES Act, saying “this final rule has no implication on the CARES Act.”
As proposed, the final rule has a provision instructing the Secretary to tailor requirements and guidance in response to any future Presidentially declared national emergency. NLIHC strongly recommended that the final rule add Presidentially declared disasters, which will occur far more frequently than national emergencies (such as the COVID-19 pandemic). NLIHC also recommended the final rule add text requiring the Secretary to tailor requirements and guidance responding to more localized emergency declarations made by a governor or mayor in recognition of the increasing number of disasters due to human-caused climate change that do not rise to the level of a Presidentially declared disaster. HUD declined this suggestion.
NLIHC’s comment regarding the proposed rule expressed concern about preventable evictions that might take place due to the anticipated slow implementation of the 30-day notice policy once a final rule is published on the Federal Register. The preamble to the proposed rule anticipated that after a final rule is published, PHAs would need an additional 18 months and PBRA owners would need an additional 26 months to modify leases and then come into compliance. NLIHC urged HUD to expedite the implementation of the final rule to minimize the number of preventable evictions. In response, HUD asserts that PHAs need 18 months to adjust leases and that owners will need 14 months to comply after HUD publishes a model lease for owners – which HUD anticipates will take at least 12 months after the final rule is effective on January 13, 2025.
Read the final rule at: https://tinyurl.com/4fzv96uu
An easier-to-read version of the final rule is at: https://tinyurl.com/4crywh5u
More information about public housing, PBRA, Section 202, and Section 811 is in Chapter 4 of NLIHC’s 2024 Advocates’ Guide.