Deceased Tenant's Daughter Has No Continued Right to Occupy Unit

In a recent case, a site owner sought to remove a former tenant’s daughter from the site. The owner argued that the daughter isn’t a tenant and has no legal right to remain in the apartment.

The site is financed through HUD’s Section 202 Supportive Housing for Elderly Persons program. Under the terms of a Regulatory Agreement between the owner and HUD, the owner agreed to limit occupancy of the project to elderly families and individuals as defined in Section 202 of the Act.

The former tenant filed an application for HUD approval as a tenant, was approved, and lived in the apartment under terms of the 202 PRAC agreement from June 14, 2006, until her death in 2022. The tenant’s daughter began living with the tenant in 2008 and refused to move out after her mother’s death. The owner went to court to seek her removal, and the daughter asked the Connecticut state court to dismiss the case.

Live-In Aide Status

In HUD Section 101 PRAC and Section 811 sites, adult children of elderly or disabled tenants are not eligible to move into a housing unit unless they will fulfill the services of a live-in aide and meet the necessary criteria. Here, the daughter was never given the status of a tenant, the person who had successfully completed a rental application and signed the Supportive Housing for the Elderly Agreement.

Subsequently, the language in the recertification process changed, requiring both the tenant and the live-in family member to sign certain documents, and the daughter could stay “only if performing the function of a live-in aide.” In May 2017, the mother submitted an application for a live-in aide. The document had to be verified by a physician. A doctor certified that the tenant was disabled as defined by federal law. The document indicated that “[T]he aide would live in the household member’s unit for the sole purpose of providing supportive services essential to the member’s care and well-being.”

On May 13, 2021, the daughter signed a Live-In Aide Agreement that stated, “I also understand that should [tenant] vacate the apartment, I have no legal right to occupy and must also vacate.” On Oct. 27, 2022, the tenant passed away. And as of that date, the daughter was no longer performing the function of a live-in aide and by agreement was required to vacate.

Request to Dismiss Denied

The court denied the daughter’s request to dismiss the owner’s removal case. The court found that the daughter wasn’t a party to the written lease signed by her mother and the property manager. Also, the daughter was in an arrangement to provide services for a tenant, with a full understanding that upon the death of the tenant, her need to be a “live-in-aide” would end. Therefore, after her mother’s death, the daughter had no legal authority to remain in the apartment.

The judge also cited the HUD Handbook par. 3-6(E)(3)(a)(2)(c), which emphasizes a live-in aide’s conditional qualification for occupancy. A live-in aide “qualifies for occupancy only as long as the individual needing supportive services requires the aide’s services and remains a tenant. The live-in aide may not qualify for continued occupancy as a remaining family member. Owners are encouraged to use a HUD-approved lease addendum that denies occupancy of the unit to a live-in aide after the tenant, for whatever reason, is no longer living in the unit.”

• Senior Citizens Hous. Dev. Corp. of Stonington v. Heath, April 2023

Live-In Aides Are Not Household Members

You mustn’t count a live-in aide’s income when certifying or recertifying a household’s income [HUD Handbook 4350.3, Exhibit 5-1]. That’s because a live-in aide isn’t a household member. Instead, a live-in aide is just “a person who resides with one or more elderly persons, near-elderly persons, or disabled persons, and who is determined to be essential to the care and well-being of the person(s), is not obligated for the support of the person(s), and would not be living in the unit except to provide the necessary supportive services” [Handbook 4350.3, par. 3-6(E)(3)(a)].

Although you mustn’t count a live-in aide as a household member, you must consider aides when complying with occupancy requirements. In other words, owners must count live-in aides for purposes of determining the appropriate unit size [Handbook 4350.3, par. 3-23(E)(6)(d)].