by Matt Rayburn, HCCP, Indiana Housing and Community Development Authority
A themed issue about spring cleaning topics unfortunately wouldn’t be complete without discussing evictions. While it may seem inappropriate to equate eviction to cleaning up a property, the fact is that there are times where terminations of tenancy are necessary for the viability of a property, either financially (residents not paying rent) or otherwise (residents damaging property, posing a threat to others, etc.).
This article can’t provide a step-by-step guide to processing an eviction — the process varies too much from locality to locality and company to company. Instead, it will focus on understanding Section 42’s concept of good cause, and identifying some areas that clearly are and are not covered as allowable reasons for eviction.
The Section 42 program is designed to provide tenant protections and (in most cases) to allow households to stay in place after move-in, even as their situations change. However, the program also recognizes that there will be times that management needs to terminate a lease and that managers need the same ability to deal with income-qualified households that are not complying with their lease terms as they would have with any other household. The result of these two seemingly conflicting forces — the ideal of tenant protection and choice versus the reality of lease non-compliance — is the "good cause eviction” rule. In a nutshell, good cause eviction means that property managers can never arbitrarily terminate a lease. Any termination must be for a documented and reasonable cause.
So what constitutes good cause? This is a valid question, as IRS guidance does not provide a list of allowable causes. The general rule is that good cause is a material violation of the lease terms. Examples of good cause may include nonpayment of rent, destruction of or damage to the property, interference with other tenants, tenant fraud, use of the property for an unlawful purpose, or other violations of the terms of the lease agreement. According to the 8823 Guide, good cause is ultimately based on state and local law and, therefore, the determination of the state court. This means it is important to check with state and local law, as well as guidance from the applicable state monitoring agency, for any additional rules that will apply to your property.
A few best practices should be considered. First, language addressing the eviction process and outlining actions that constitute good cause for termination of tenancy should be included in writing at the time of initial occupancy — preferably in the lease — as well as in any additional tenant rules and regulations document(s). It will be impossible to craft an exhaustive list of reasons, but this does not mean that the common examples shouldn’t be cited along with appropriate “including but not limited to” language.
Second, when dealing with tenant conduct issues, management is strongly encouraged to provide a written warning notice to the tenant prior to beginning eviction. This notice should include a statement that continued poor conduct will constitute a basis for future termination. And finally, regardless of the reason, the basis for good cause should be clearly documented in the tenant file, along with copies of all applicable notices and supporting documentation. It is the owner’s responsibility to document and defend the good cause for eviction if challenged in court or questioned by the state monitoring agency.
Perhaps even more important than understanding what may be construed as good cause, it is critical to understand three areas that are clearly not valid reasons for eviction.
Eviction can never be based on any criteria that would violate the Fair Housing Act, the Section 42 general public use requirements, or otherwise be deemed discriminatory. The reason for termination cannot be because of a protected class status, a fact that we all hope is obvious to everyone. It is also important to not use eviction as retaliation. For example, I was once asked by a property manager (who clearly needed more Fair Housing training) if she could terminate or non-renew the lease of a tenant who was requesting too many accommodations/modifications and was thus “being a pain.”
Increases in household income after initial move-in are never considered grounds for termination. Section 42 specifically protects households that experience income increases by allowing them to stay in their unit as long as they choose (assuming they continue to comply with their lease terms). For 100% tax credit projects, a household remains qualified as long as it chooses to stay, regardless of changes in income after move-in. For mixed-income buildings with both tax credit program units and market rate units, a household that experiences an increase in income is subject to the Available Unit Rule (also known as the 140% Rule) but still cannot be terminated due to the increase in income. We continue to see property managers that think the easy way around the Available Unit Rule is to terminate all households whose income exceeds 140% of area median income. While this may certainly be easier than tracking and implementing the rule, it is explicitly not an allowable practice.
The Violence Against Women Reauthorization Act of 2013 (VAWA) extended the act’s coverage to Section 42 properties, thus adding another item to our list of things that do not constitute good cause for eviction. According to VAWA, the property owner and manager shall ensure that an incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking shall not be construed as either (1) a serious or repeated violation of a lease by the victim or threatened victim of such incident or (2) good cause for terminating the assistance, tenancy or occupancy rights to housing for the victim of such an incident.
As a final note, since HOME is an increasingly popular topic, it is worth noting that the eviction rules for that program essentially mirror those of Section 42. Under HOME, evictions are allowed only with good cause, and the same items prohibited in the list above would also be prohibited reasons for eviction under that program.
The only caveat to add here is that HOME specifically requires that a household must be given at least a 30-day notice prior to termination. Section 42 has no such timing requirement, but state or local law will generally provide some similar requirement concerning the time frame for notification.
To summarize, when it comes to making a decision to terminate, make sure that the decision is within the parameters of good cause, is documented and defendable and is not for a prohibited reason. In addition to understanding the program requirements, make sure to be familiar with state and local requirements, including any rules set forth by your state monitoring agency. Implementing these principles and best practices should help you evict with caution, but also with confidence.
Matt Rayburn is the chief real estate development officer for the Indiana Housing and Community Development Authority (IHCDA). In this position, he oversees the policies, processes and personnel of IHCDA’s Real Estate Department to ensure that resources are used in a manner that accomplishes agency priorities and complies with federal and state regulations. This includes oversight of the Section 42 Low-income Housing Tax Credit, HOME, CDBG, NSP, and Indiana Affordable Housing and Community Development Fund programs.