The National Housing Law Project (NHLP) sent a memorandum to high-level HUD career staff and to Erika Poethig of the White House Domestic Policy Council detailing HUD’s existing statutory and regulatory authority to protect HUD-assisted residents from eviction during the COVID-19 pandemic. The legal authority NHLP cites is based on the National Housing Act of 1949, Housing and Community Development Act, Fair Housing Act, the Brooke Amendment to the U.S. Housing Act of 1937, the CARES Act, and public housing, voucher, and multifamily statutes. Based on that legal authority, NHLP writes that HUD must immediately mandate steps to protect HUD residents from eviction.
These authorities allow and obligate HUD to choose from a range of eviction prevention actions, such as:
- Enacting a blanket eviction moratorium for HUD residents
- Revising termination and eviction procedures to exclude nonpayment of rent from “good cause” eviction
- Creating a set of pre-conditions on terminations of assistance that may include:
- Requiring housing providers to seek emergency rental assistance (ERA)
- Requiring housing providers to offer families reasonable repayment plans prior to termination.
- Mandating retroactive interim income recertification
- Requiring housing providers to determine whether a household requires a reasonable accommodation due to a disability, including from certain program requirements
- Determining whether a household should automatically receive the hardship exemption to the minimum rent
NHLP notes that the CARES Act provides HUD broad authority to waive any provisions of law or regulation in connection with the use of CARES Act funds, and that HUD could easily implement sub-regulatory guidance to include the actions listed above by updating existing waiver notices.
The National Housing Act of 1949 provides HUD with the authority to “exercise its power, functions, and duties” under any law HUD is subject to in order to ensure that “the goal of a decent home and suitable living environment for every American family” is met. The Housing and Community Development Act declares it is “the policy of Congress that in the administration of Federal housing and development programs, involuntary displacement of persons from homes and neighborhoods should be minimized.” NHLP states that HUD and other federal housing agencies can therefore administer housing programs in a manner that prevents involuntary displacement by eviction of federally assisted housing tenants by creating the set of pre-conditions on terminations of assistance listed above.
The Brooke Amendment to the U.S. Housing Act of 1937 (named for former Senator and NLIHC Board Chair Edward Brooke [R-MA]) limits a public housing household’s monthly rent and utilities payments to 30% of adjusted income, or the minimum monthly rent. The Brooke Amendment also requires public housing agencies (PHAs) to grant an exemption to the minimum rent requirement when a household experiences financial hardship, including the threat of eviction. The amendment states that housing providers “shall immediately grant an exemption from application of the minimum monthly rental…to any family unable to pay such amount because of financial hardship,” which includes eviction if the minimum rent requirement is enforced; decreased family income due to changed circumstance, including loss of employment; death in the family; and other situations determined by HUD.
Many housing providers fail to comply with the hardship exemption policy by failing to inform households of their eligibility to request a hardship exemption and by failing to grant a hardship exemption automatically when a household qualifies, including when they are threatened with eviction. Therefore, NHLP asserts that HUD must issue immediate guidance informing housing providers of their obligation to notify tenants of their eligibility for the hardship exemption in a form and manner that is accessible and that will encourage eligible tenants to act. NHLP also states that HUD should make clear that when housing providers know a hardship exists (whether or not a family requests one), providers must immediately grant an exemption from the minimum rent, or, if a provider determines the hardship is temporary, suspend the minimum rent. When a hardship exists but the provider is not aware, tenants must be given a meaningful opportunity to request an exemption or suspension.
The Fair Housing Act requires HUD to “administer the programs and activities relative to housing and urban development in a manner to affirmatively further the policies” of the Fair Housing Act. NHLP’s memorandum elaborates the toll of the pandemic has and will continue to have if evictions take place on some of the Fair Housing Act’s “protected classes,” including Black and Latino renters, women, families with children, and people with disabilities.
NHLP’s memorandum is at: https://bit.ly/3jIJpB6
More information about public housing is on page 4-30 of NLIHC’s 2021 Advocates’ Guide.
More information about Housing Choice Vouchers is on page 4-1 of NLIHC’s 2021 Advocates’ Guide.
More information about HUD’s Multifamily housing program is on page 4-64 of NLIHC’s 2021 Advocates’ Guide.