TERMINATING A SECTION 8 LEASE AGREEMENT OF A DISABLED TENANT

What is also interesting about this case is that the defense of highlighting the notice requirements with disabled tenants also raised the question of a guardianship.

2013 Amsterdam Ave. Hous. Assn., L.P. v King, 2019 NY Slip Op 29074, Decided on March 22, 2019, Appellate Term, First Department:

"The notice of termination underlying this holdover proceeding alleged that tenant breached the Section 8 lease agreement by engaging in a pattern of conduct that adversely affects the health and safety of other building residents, including causing recurrent instances of flooding into the units below, and refusing to allow landlord access to effect repairs. The notice further alleged that

"...during the ten (10) calendar days following the date this Notice was hand delivered or the day after this Notice was mailed, whichever is earlier, you may request of the Landlord to discuss the proposed termination of your tenancy, and upon your request, the landlord may agree to discuss this with you." (emphasis added)

Significantly, the notice did not inform tenant, who is a paraplegic, wheelchair-bound, double-amputee who requires a colostomy bag, that he could request a reasonable accommodation to participate in the hearing process.

The HUD Handbook and the governing Section 8 lease agreement set forth the requirements for the termination of a tenancy. Among other requirements, Sections 8-13(B)(2)(c)(4) and 8-13(B)(2)(c)(5) of the Handbook specify that the Notice of Termination must advise tenant that "he/she has 10 days within which to discuss termination of tenancy with the owner" and that "persons with disabilities have the right to request reasonable accommodations to participate in the hearing process." 

Paragraphs 17(b) and 23(e) of the HUD lease specify that [*2]if tenant requests a meeting to discuss the proposed termination, the landlord "agrees" to meet with the tenant. In other words, the landlord must agree to meet with tenant.

The Notice served by landlord did not comply with the above-mentioned HUD requirements, since it incorrectly informed tenant that landlord "may" meet with him to discuss the proposed termination when, in fact, landlord was required to participate in any requested pretermination meeting. Furthermore, the notice failed to inform the severely disabled tenant that he could request a reasonable accommodation. In such form, the notice was not reasonable in view of the attendant circumstances (see generally Oxford Towers Co., LLC v Leites, 41 AD3d 144 [2007]), since the combined defects eviscerated the procedural safeguards intended to prevent improper termination of a Section 8 tenancy (see Matter of Henry Phipps Plaza S. Assoc. v Quijano, 137 AD3d 602 [2016], revg for reasons stated in dissenting op of Schoenfeld, J., 45 Misc 3d 12 [App Term, 1st Dept 2014]). Thus the notice was insufficient to serve as a predicate for this eviction proceeding.

Contrary to landlord's claim, tenant's objection to the sufficiency of the notice was timely raised and was not waived (cf. 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]).

We note, also, that in view of tenant's disabilities and the serious conduct at issue, that the parties should explore reasonable accommodations that will enable tenant to fulfill his lease obligations and avoid eviction, i.e., ongoing supportive services and suitable monitoring (see Matter of Prospect Union Assoc. v DeJesus, 167 AD3d 540 [2018]). This may even include, if warranted, the commencement of a proceeding by an appropriate party for the appointment of a Mental Hygiene Law article 81 guardian."

PUBLIC HOUSING AND FAMILY

See this article which has appeared in many of today's papers:

http://bigstory.ap.org/article/public-housing-safety-policy-can-hit-whole-family

The Housing Opportunity Program Extension ("HOPE") Act of 1996 was designed to strengthen the ability of federally subsidized housing projects to screen out and evict drug dealers and other criminals who prey on their law-abiding neighbors. Tenants in both public and private housing are subject to eviction for violations of appropriate lease terms, whether it is keeping an unlawful pet or violating any of the other reasonable terms of a lease.

In the private housing sector, it would be difficult to evict a tenant on the same grounds as set forth in the article.

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

As a follow up to yesterday's blog, I want to thank some of the attorneys who have discovered the following cases and law:

Paragraph 5 (e) of the HUD Tenancy Addendum (available at http://www.hud.gov/offices/adm/hudclips/forms/files/52641-a.pdf ) provides:

"The owner may not charge or accept, from the family or from any other source, any payment for rent of the unit in addition to the rent to owner..Rent to owner includes all housing services, maintenance, utilities and appliances to be provided and paid by the owner in accordance with the lease."

Does this supersede provisions in the lease that permit the landlord to collect late fees or legal fees from the tenant? One helpful case from the Second Department is Spring Valley Homes Assoc. v Logan, 2003 NY Slip Op. 51224(U), *3-4, 2003 WL 22038359 (App Term, 9th & 10th Jud Dists 2003), citing 42 USC 1427f (a) (1). In that case, the Appellate Term held that "[e]ven where there is an agreement between the parties providing for the recovery of attorney's fees as 'additional rent', a landlord is not, under the statutory scheme, entitled to collect same from a Section 8 tenant in a summary proceeding."

The Nassau County District Court already decided Douglas v Nole, 20 Misc 3d 1119(A), 2008 NY Slip Op 51394(U) (Nassau Dist Ct 2008), published online at
http://www.nycourts.gov/reporter/3dseries/2008/2008_51394.htm, in which the court held:

"Finally, in her petition, the Petitioner requests reimbursement for legal fees as "additional rent." However, this Court finds that approval of attorney fees is improper. According to Community Properties v. McCloud, 2003 NY Slip Op 51088(U)[App Term, 9th & 10th Jud Dists], supra);"[A] landlord may not collect costs, penalties and other non-rent items as "added rent" from a Section 8 benefits recipient unless specifically provided in the Section 8 lease" (citing Matter of Binghamton Hous. Auth. v. Douglas, 217 AD2d 897, 898 [NY App Div 3rd Dept 1995]; Porter v. Chester Hous. Auth. v. Turner, 189 Misc 2d 603, 604 [NY App Term 2nd Dept 2001].)"

But note that Spring Valley Homes Assoc. v Logan, decided a month after Community Props. v McCloud by a panel including two of the three judges in the earlier case, went further by disallowing any recovery of attorney's fees in a summary proceeding, regardless of what the lease provides, citing the Section 8 statute. As you are aware, many Section 8 housing recipients are single/divorced/separated mothers who cannot make ends meet. Thus, a ruling that any Section 8 housing, whether a project or voucher program, cannot have a lease which provides for late charges or legal fees will be extremely helpful in attempts to resolve their rent issues.