When Does Resident's Absence Become Abandonment?

Q A resident who moved into an assisted unit a year and a half ago has not been living there. She pays rent, but she uses the unit only as a storage space and a mail drop. She hasn’t stayed in the unit since her lease began. She admitted that, for the past year, she has been sleeping at her daughter’s house in town. The resident claims that she takes care of her daughter, who has a serious illness, and her granddaughter, who is a minor child.

The resident has been tying up a unit that could be used by someone who needs it. At her first recertification, we told her that she needed to begin residing in the unit and why. But she continues to reside elsewhere. We are concerned about an eventual HUD inspection, which could fault us for condoning her conduct. Are we within our rights, under HUD rules, to evict the resident? And what would be the process for doing so?

A You are within your rights to seek possession of the unit under HUD rules. According to HUD, “The unit for which the family is applying must be the family’s only residence [Handbook 4350.3, par. 3-5(d)].” And the standard HUD lease states in Section 13: “The Tenant must live in the unit and the unit must be the Tenant’s only place of residence.” In addition, an extended absence or abandonment of the unit qualifies as material noncompliance with the lease.

Most likely, an extended absence or abandonment of the unit is defined in your house rules or in state or local law. For an example of a house rule on extended absences and abandonment, see our Model House Rule: Spell Out Absence and Abandonment Policy with House Rule.

To obtain possession of the unit, you must take three steps. First, send the resident a letter informing her of the violation. Upon receipt of the initial notice, the resident has 10 days to respond.

After you have documented that the violation is ongoing, you can take the second step by sending the resident a termination notice, giving her 30 days to vacate the unit. The legal basis for the termination notice is a lease violation, so you don’t have to wait for recertification to serve her with this notice. You can say that she must return her unit’s keys to your office by a specified date. And you can say that if she does not do so, you intend to pursue other legal remedies, such as eviction.

Also, say that the resident has 10 days to request a meeting to discuss your reasons for terminating her rental subsidy. At the meeting, she is permitted to raise any “special circumstances” that she believes apply to her case. The resident will probably claim that her special circumstances are her daughter’s illness and the nursing care that she administers, which requires her to live away from the site. However, the flaw in the resident’s position would be the length of time—18 months—that she has spent away from the unit. She is living elsewhere while holding the unit for her own use at a later date, which is clearly a violation of the lease and HUD rules. Assuming that the resident refuses to vacate, you must take a third step to obtain possession of the unit: File suit in court seeking to evict her.

With regard to your concern about a HUD inspection, you need only show that you tried to resolve the problem. If a judge decides that because the resident is paying rent, her housing subsidy should not be terminated, you will give the HUD inspector a copy of the court order. You have protected yourself by showing that a judge prevented you from obtaining possession of the unit.