How to Determine Eligibility of Remaining Household Members

HUD Handbook 4350.3, paragraph 3-16, spells out the rules for determining who can stay at an assisted site after the original qualifying household member dies or moves out of the unit. Whether the remaining member can stay depends on several factors, including the type of assisted site involved.

Although the rules seem clear-cut, you may be confused about what you can and can’t do in specific situations. To help you properly determine eligibility of remaining household members, we’ll give you a rundown on the rules for determining eligibility of remaining household members.

Two Basic Requirements

HUD Handbook rules spell out two basic requirements for determining who can stay at assisted sites after the original qualifying household member dies or leaves the unit. There are also special rules for Section 202 and 811 sites: At these sites, who can stay depends on why the original member left the unit.

For an individual to qualify as a remaining household member at an assisted site after a qualifying household member dies or otherwise leaves the unit, the individual must be:

1. Named on the lease when the household member leaves the unit [HUD Handbook 4350.3, par. 3-16(B)(1)]. This also means that the individual must have been listed as a household member on the household’s most recent HUD form 50059 (Owner’s Certification of Compliance with HUD’s Tenant Eligibility and Rent Procedures); and
2. The minimum age permitted by your state’s law to sign enforceable contracts [HUD Handbook 4350.3, par. 3-16(B)(2)].

Any individual who meets these two requirements—including emancipated minors who were previously named on the lease and who have the right to sign contracts in your state—can stay in the unit when another household member moves out or dies. And they can continue to get assistance and pay rent based on their income.

Example: Suppose a resident at the assisted site recently died, and it is discovered that the resident’s adult son, who wasn’t named on the lease or listed as a household member at annual recertification, had been living in the unit to care for his father. Although the son wants to remain in the unit, you can sue to evict him because the son isn’t named on the lease, so he’s not entitled to stay in the unit. Also, depending on the type of assisted site you manage, you may be able to sue the son to collect back rent, calculated based on his unreported income, for the time he lived in the unit.

Special Rules for Section 202 and 811 Sites

If you own or manage a Section 202/8, Section 202 PAC, Section 202 PRAC, or Section 811 PRAC site, special rules apply for determining whether individuals are eligible to stay as remaining household members. Which rules apply depends on whether the elderly or disabled household member died or left the unit for some other reason.

If elderly or disabled member died. HUD rules say that a surviving household member at a Section 202 or 811 site is automatically eligible to remain in the unit after the elderly or disabled household member dies (whether or not the surviving member meets any of the site’s other eligibility requirements, such as age or disability) [HUD Handbook 4350.3, par. 3-16(B)(3)(a)]. It’s important to note that a surviving household member in this situation must also meet the other basic requirements for eligibility: The individual must be named on the lease when the household member died; the individual must live in the assisted unit with the deceased household member when he died; and he or she must meet the minimum age permitted by your state’s law to sign enforceable contracts.

As with all households, eligible remaining household members continue to get assistance and pay rent based on their income [HUD Handbook 4350.3, par. 3-16(B)(3)(a)]. But individuals who don’t meet the above requirements (for instance, a granddaughter who tries to move into her grandmother’s empty assisted unit after her grandmother dies) can’t stay at the site and must move out or be evicted.

Example: Suppose you manage a Section 202 Project Rental Assistance Contract (PRAC) site for the elderly and disabled. One of your residents died, and her adult daughter, who’s listed on the lease, would like to stay in the unit. But the daughter doesn’t meet our site’s eligibility requirements in that she’s not elderly or disabled.

In this case, you must let the daughter stay in the unit. For Section 202 and 811 sites, a remaining household member is eligible to stay after the elderly or disabled household member dies, even if the remaining member doesn’t meet the site’s age or disability requirements, as long as the remaining member is named on the lease, living in the unit when the deceased household member died, and is of legal contract age under your state’s law. Here, because the daughter meets all three of these requirements, she’s entitled to stay in the unit. And she’ll get assistance and pay rent based on her income.

If elderly or disabled member left for other reasons. If the original elderly or disabled household member left the unit for any reason other than death, individuals still living in the unit aren’t automatically eligible to stay at the site. They must:

• Be named on the lease when the household member leaves the unit;
• Be the minimum age permitted by your state’s law to sign enforceable contracts;
• Be living in the assisted unit at the time the original qualifying household member leaves the unit [HUD Handbook 4350.3, par. 3-16(B)(3)(b)]; and
• Meet the eligibility requirements for all applicants to the site. Whether individuals are eligible or not depends on whether they meet income requirements and the age or disability requirements that apply to the type of site you manage. In short, treat them as you would treat any applicant to the site [HUD Handbook 4350.3, par. 3-16(B)(3)(b)].

Different types of sites have different definitions of “elderly person” and “disability” that applicants must meet. To make this determination (for any applicant to your site, including remaining household members), HUD says you should see the charts in Figures 3-5 and 3-6 of HUD Handbook 4350.3 to find the appropriate definitions that apply to your site [HUD Handbook 4350.3, par. 3-16(B)(4)].

Example: The 68-year-old household head at a Section 202 PRAC site moves out of the unit, leaving behind her 42-year-old son. The son asks to stay in the unit as a remaining household member. The son meets the income requirements that apply to the site. To determine whether the son meets the age or disability requirements, HUD says to use Figures 3-5 and 3-6. Figure 3-5 says you must use “Definition C—Elderly Person” to determine eligibility for Section 202 PRAC sites. Figure 3-6 defines “Definition C—Elderly Person” as “a household composed of one or more persons at least one of whom is 62 years of age or more at the time of initial occupancy.” Because there is no person left in the household who is 62 years of age or more, the son isn’t eligible for the site.

If individual isn’t eligible. If the individual isn’t eligible for your site once the original member moves out, HUD makes clear that he may not get rental assistance [HUD Handbook 4350.3, par. 3-16(B)(3)(b)]. And whether he can stay in the unit at all depends on the type of site you own or manage:

• If you own or manage a Section 202/8 or Section 202/PAC site, the individual may remain in the unit but must pay market rent for the unit [HUD Handbook 4350.3, par. 3-16(B)(3)(b)].
• If you own or manage a Section 202 PRAC or Section 811 PRAC site, the individual may not remain in the unit at all. This means that if he won’t move out voluntarily, you can—and should—sue to evict him. In the above example, because the site is a Section 202 PRAC site and the son isn’t eligible, he can’t stay in the unit and must move out.