HUD Issues New Eviction Requirements

The rules apply to public housing and project-based rental assistance sites.

HUD recently published Notice H 2021-06, a new rule that prohibits the eviction of tenants for nonpayment of rent from HUD-subsidized public housing and certain properties with project-based rental assistance without providing a 30-day notice period that includes information about available federal emergency rental assistance. HUD has determined that this rule will prevent more than 200,000 evictions from HUD-subsidized housing, evictions that HUD says would interfere with the operation of its programs and the accomplishment of its mission.

HUD has noted that Emergency Rental Assistance (ERA) funding still hasn’t reached many eligible tenants at risk of eviction for nonpayment. And this has created an increased risk that evictions will occur simply because funding that’s specifically meant to help pay much or all of the back rent in question isn’t provided in time.

In a statement, HUD Secretary Marcia Fudge said, “For many months, our Department has worked with landlords and owners who do business with HUD to ensure they access the Emergency Rental Assistance Program and do everything they can to keep people housed. This rule is a significant step in raising tenant awareness about the availability of funds that can assist them with past due rent and allowing them additional time to access relief that may stave off eviction entirely. HUD will continue to review additional actions to help protect individuals through the duration of the pandemic.”

We’ll go over the changes the new rule makes to notification requirements. We’ll also cover which sites are affected by the new rule.

Which Sites Are Affected?

The new rule applies to sites participating in HUD’s Multifamily Section 8 project-based rental assistance, Section 202, and Section 811 assisted housing programs and HUD-subsidized public housing.

For public housing authorities (PHAs) administering the public housing program, the notice also applies to PHAs participating in the Moving to Work (MTW) Demonstration, and applies only to families residing in public housing units under an Annual Contributions Contract (ACC), including those under a Mixed-Finance ACC.

The new rule doesn’t apply to PHAs that administer only the Housing Choice Voucher (HCV) program, or to families assisted by the HCV program, including Project-based Vouchers (PBV).

The notice also applies to the following multifamily housing programs:

• Section 8 Project Based Rental Assistance (New Construction; State Housing Agency Program; Substantial Rehabilitation; Section 202/8; Rural Housing Services Section 515/8; Loan Management Set-Aside; Property Disposition Set Aside; Rental Assistance Demonstration);
• Section 202/162 Project Assistance Contract (PAC);
• Section 202 Project Rental Assistance Contract (PRAC);
• Section 202 Senior Preservation Rental Assistance Contract (SPRAC); and
•  Section 811 Project Rental Assistance Contract.

Minimum 30-Day Notice

The new rule is designed to buy some extra time for ERA funds to work their way through the system. The notice reiterates that PHAs, HCV landlords, other owners of HUD-assisted properties, and utility providers may accept funds from the ERA program for rental and most utility arrearages for HUD-assisted families. HUD-assisted families may be eligible for assistance from the ERA program, as long as ERA funds are not applied to costs that have been or will be reimbursed under any other federal assistance, including Housing Assistance Payments in the HCV program, Operating Fund assistance in the Public Housing program, or rental assistance in Multifamily Housing programs.

The rule provides that when there’s a national emergency—such as the COVID-19 pandemic—and federal money is allocated to help tenants facing eviction for nonpayment of rent, the HUD Secretary can:

• Expand the notice a covered landlord must give before such a tenant must vacate a unit from 14 days to 30 days;
• Require landlords to provide information to the tenant regarding federal emergency rental relief along with the eviction notice; and
• Require landlords to provide notice to all tenants in public housing of the availability of emergency rental assistance.

Owners have seen the 30-day notice requirement before. It was part of the original COVID-19 relief package. But this change will be coupled with specific guidance for housing authorities on how to steer tenants toward ERA funding. The notice states that no lease modifications will be required as a result of the new rule.

Generally, HUD regulations on required advanced notification of lease terminations for nonpayment of rent are different between the multifamily and public housing programs. HUD doesn’t prescribe specific language to be included in such notifications; rather, HUD establishes basic requirements for what must be included in such notification, which are then tailored to meet additional state and local notification and lease requirements. For each program, the required notification for nonpayment of rent is intended to be the minimum notification required and is superseded by state and local notification requirements if such requirements provide for additional advanced notification to vacate.

For the public housing program, PHAs have flexibility to determine when to terminate the tenancy of a household for nonpayment of rent. If a PHA includes nonpayment of rent as a serious and repeated lease violation in the lease, the lease must provide at least a 14-day notification of lease termination for nonpayment of rent. This notification requirement may be combined with or run concurrently to any notice to vacate required by state and/or local law.

In contrast, the regulations governing HUD’s various Multifamily Housing programs state that owners must use leases that are in an acceptable form to HUD. In practice, owners must use one of the four model leases prescribed by HUD. The lease an owner uses depends on the program being administered. HUD’s model leases provide without exception that any termination of tenancy by the landlord must be carried out in accordance with HUD regulations, state and local law, and the terms of the lease. The leases apply different standards to terminations for “material noncompliance with the terms of the lease” (such as nonpayment of rent) and terminations for “other good cause.”

For material noncompliance with the terms of the lease such as nonpayment, an owner must provide a tenant with a notice of proposed termination that complies with time frames set forth in state and local law. The notice must advise the tenant that the tenant has 10 days within which to discuss the proposed termination with the landlord, beginning on the earlier of the date the notice was hand-delivered to the tenant’s dwelling unit or the day after the notice is mailed. If the tenant requests such a meeting, the lease specifies that the landlord agrees to discuss the proposed termination with the tenant and advise the tenant of his or her right to defend the action in court.

For terminations based on other good cause, these may be effective only as of the end of any initial or successive lease term, following notice to the tenant at least 30 days prior to the date on which the tenant will be required to move from the unit. The termination notice must be mailed to the tenant and hand-delivered to the tenant’s dwelling unit.

Share Required Information

HUD Notice H 2021-06 requires owners and PHAs to provide information to affected tenants as necessary to support tenants in securing available ERA funding. The notice doesn’t require specific language be included in notifications of terminations for nonpayment of rent. But owners must ensure that such notification is provided no less than 30 days before any actions to terminate the lease of the affected household.

The basic information that must be relayed to at-risk households deals with the availability of Emergency Rental Assistance. HUD is requiring owners to update the HUD-provided language with the appropriate link to the local ERA grantee. You can find the HUD-required language to be provided with the 30-day notice in our Model Notice: Give ERA Information to Tenants Facing Eviction for Nonpayment of Rent.