HUD published on December 1 a proposed rule in the Federal Register that requires tenants to receive a written notice at least 30 days before their lease is terminated due to non-payment of rent if they live in public housing or one of several project-based rental assistance (PBRA) properties. For the purposes of the proposed rule, “PBRA” includes projects in the following programs: the Section 8 Project-Based Rental Assistance program, various Section 202 Supportive Housing for the Elderly programs [Section 202/162 Project Assistance Contract projects; Section 202 Project Rental Assistance Contract (PRAC) projects; and Senior Preservation Rental Assistance Contract projects (SPRAC)], and two Section 811 Supportive Housing for Persons with Disabilities programs [Section 811 PRAC; and the Section 811 Project Rental Assistance Program (811PRA)]. Comments regarding the rule are due by January 30, 2024.
The proposed rule would also require the 30-day notice to include instructions enabling a tenant to clearly understand how to avoid commencement of a formal judicial eviction proceeding for nonpayment of rent. Such instructions would identify the amount of rent owed, any other arrearages allowed by the HUD program, and the date by which the tenant must pay the rent and arrearages to avoid an eviction filing in court. The notice would also include information on how a tenant can recertify their income or request a minimum rent hardship exemption, and – in the case of public housing residents – how tenants can request a change from a flat rent to an income-based rent.
The rule would require public housing authorities (PHAs) and owners to amend all current and future leases to incorporate the 30-day notice requirement for non-payment of rent, which would also entail that PHAs and owners provide tenants with notification of changes to the lease according to the existing regulations of a HUD program.
The preamble to the proposed rule recommends that PHAs and PBRA owners enter into a rental repayment agreement instead of requiring a tenant to provide a lump-sum payment for the past due amount. The preamble also reminds PHAs and owners of their legal obligation to provide the 30-day notice in accessible formats to ensure effective communication for people with disabilities and for people with limited English proficiency (LEP).
HUD proposes to give PHAs 18 months to comply with the lease change and PBRA owners 14 months from the date HUD issues model PBRA leases, which HUD plans to issue within one year of the effective date of a final rule.
The preamble states that the rule would not preempt any state or local law that provides greater or equal protection for tenants.
Finally, the proposed rule states that in the event of a presidentially declared national emergency, PHAs and owners would also need to provide tenants with other information as specified by HUD.
HUD previously published an interim final rule on October 7, 2021, in response to the COVID-19 pandemic and any future emergencies. That interim final rule created a minimum 30-day period before a PHA or owner could terminate a lease for nonpayment of rent, and it required PHAs and owners to provide tenants with information about any federal funding available to prevent eviction for nonpayment of rent during a national emergency. The proposed rule extends the 30-day notice to situations outside of a national emergency.
The preamble also reminds PHAs and owners that the CARES Act 30-day notice to vacate is still in effect for CARES Act covered properties, which includes additional programs such as the following: Housing Choice Vouchers, Low Income Housing Tax Credits (LIHTC), HOME Investment Partnerships, Housing Opportunities for Persons With AIDS, the national Housing Trust Fund (HTF), McKinney-Vento homelessness programs, VASH vouchers, Section 236 Multifamily, Section 515 Rural Development, Section 416/516 Farm Labor Housing, Section 533 USDA preservation grant housing, Section 538 USDA multifamily housing, the Rural housing voucher program (Section 521), Fannie Mae-owned mortgage loans, Freddie Mac-owned mortgage loans, the HUD Section 184 Indian Home Loan Guarantee, and Ginnie Mae-backed mortgage loans, including those of the Federal Housing Administration, the Veterans Administration, and USDA direct or guarantee loans. In addition, the CARES Act applies to any other federal program providing affordable housing to low- or moderate-income persons by means of restricted rents or rental assistance and any other federal program providing affordable housing opportunities as identified through agency regulations, notices, or any other means.
See the National Housing Law Project’s “Enforcing the CARES Act 30-Day Eviction Notice Requirement” for more details.