11-3. TENANT PROTECTIONS

• A. Importance of the Process. The process of converting from project-based assistance to tenant-based assistance can produce worry and fear for many families. Therefore, care must be taken to make sure the process is completed correctly and information is made clear and available for all families, owners, and PHAs.

• B. Right to Remain. Tenants who receive an enhanced voucher have the right to remain in their units if the units are offered as rental housing. The tenant must have been issued an enhanced voucher sufficient to pay the rent charged for the unit, if the rent is reasonable. Owners may not terminate the tenancy of a tenant who exercises this right to remain except for cause under Federal, State or local law. To receive the full rent charged for the unit, the owner must agree to enter into a contract with the local PHA on behalf of each covered family. If an owner refuses to honor the tenants right to remain, the tenant’s remedy will be determined by the provision of Federal law that provides for the right to remain (i.e., 42 USC § 1437f(t)(1)) and on State and local law.

  1. The FY 2001 Military Construction and FY 2000 Emergency Supplemental Appropriations law, Pub. L. No. 106-246, Section 2801 (July 13, 2000) amended the enhanced voucher statute passed in the FY 2000 Appropriations Act (USHA Section 8(t), 42 USC Sec. 1437f(t)) and reads: “...the assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project ...” .

  2. This protection continues if the project is offered as rental housing, absent good cause to terminate tenancy under Federal, State or local law and provided the PHA continues to find the rent reasonable, Owners must continually renew the lease of an enhanced voucher family.

• C. Tenant-Based Eligibility. Only eligible families will receive enhanced vouchers at the time of an opt-out. While a family may be income eligible, they are not automatically eligible for admission to the tenant-based program.

  1. The tenant-based assistance program is administered through the Office of Public and Indian Housing (PIH). Some of the eligibility and admissions standards for PIH programs differ from those of project-based Section 8 programs. In some

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cases, a tenant may be denied assistance under the tenant-based assistance program.

• a. The PHA will re-certify and screen potentially eligible families and may deny them access to the tenant-based assistance program based on the grounds outlined in the Regulations (24 CFR Part 982.552 and 24 CFR Part 982.553). HUD encourages PHAs to use maximum flexibility during this process, such as setting up repayment agreements for tenants who owe funds to the PHA. However, if a family is ultimately denied assistance, the PHA must give them prompt notice of this decision which includes a brief statement of the reasons for the decision. An informal review can be requested by the family (the process is described in the Regulations, 24 CFR Part 982.554).

• b. If the owner’s current income certification for a tenant is no more than six months old and the PHA determines it is acceptable (through reviewing a small sampling), the PHA may use the owner’s most recent tenant income certification in determining eligibility for enhanced vouchers.

2. In general, to be eligible to receive an enhanced voucher in the case of a regular opt-out (not proceeded by a prepayment) the family must be low-income (including very low-income) and residing in a unit covered by the expiring Section 8 contract. This includes families who may have moved into a vacated unit during the term of the one-year notification period.

   • a. Unlike in a preservation prepayment situation, a family with an income above 80 percent of area median income (AMI) is not eligible for tenantbased assistance because of the opt-out.

   • b. In cases of preservation prepayments, the user must follow the guidance in Notice 2004-17.

3. In instances when a new tenant, i.e., a tenant who was not residing in the project when the one-year notification was properly provided, moves into a unit during the one-year tenant notification period, owners are encouraged to add the following provisions, in the form of a lease addendum, to the required model lease: (1) “If the HAP contract terminates for any reason, the lease terminates automatically”; and (2) “tenants who move into a vacated unit during the one-year notification period are not entitled to one-year notice of contract expiration or termination”.

4. Tenants admitted to a PHA’s tenant-based voucher program because of a housing conversion action are not subject to the income targeting requirements of the tenant-based Section 8 program.

• D. Processing Delays. If there is any delay in processing the tenant-based assistance, HUD must ask the owner to consider a short-term renewal of the contract to provide HUD with enough time to get the vouchers in place.

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