PHA Termination of Section 8 Assistance
Kegler Brown Housing Newsletter April 1, 2008
Federal regulations allow PHAs, when they consider whether to terminate Section 8 assistance, to consider all relevant, mitigating circumstances involving the tenant. The Massachusetts Supreme Court recently issued a restrictive and demanding ruling on this point. [Carter v. Lynn Housing Auth., 450 Mass. 626 (Mass. S. Ct. 2008)].
In this case the Section 8 landlord prevailed in court and recovered against the tenant for excessive damages. The PHA then held a hearing, after which the hearing officer terminated the tenant's Section 8 subsidy. The tenant then challenged the termination of the assistance.
The court ruled that the termination ruling was invalid, primarily on procedural grounds. Although the court agreed that a tenant must maintain the leased property according to HQS standards, and that a PHA can terminate the subsidy for the tenant's failure to do so, this court held that the following must exist for a hearing officer's decision to terminate assistance to be valid:
- The hearing officer must understand and state that he or she has discretion to consider all the relevant and mitigating circumstances;
- The hearing officer must issue a written decision, stating the reasons and grounds upon which the decision is based;
- The decision must address factual and credibility determinations, and whether the tenant's circumstances and "mitigating factors" were considered; and
- The decision must be based on a preponderance of the evidence before the hearing officer.
In the court's view, if the hearing officer's decision does not incorporate these essential requirements, it does not suffice to terminate Section 8 assistance.
[Source: Housing Development Reporter; 3/3/08 issue.]