For decades, it has been a difficult hurdle for persons who have a criminal record to receive affordable housing assistance. The Unites States Department of Housing and Urban Development (HUD) has been fairly broad in allowing housing authorities and owners of affordable housing properties to use their own discretion in denying assistance, terminating assistance, or evicting individuals who have a criminal record. However, efforts were announced last week by the Obama Administration and HUD to aid such persons involved in affordable housing programs.
Last Monday, November 2, 2015, President Obama announced his plan on aiding formerly-incarcerated individuals in being integrated back into society. Among the initiative is a partnership with HUD to reduce some of the challenges those with a criminal record have in receiving affordable housing assistance.
In conjunction with this announcement, HUD Secretary Julian Castro spoke on the same day in Chicago to reveal HUD’s specific plan.
The result is Notice H-2015, which urges housing authorities and affordable housing owners to be more lenient in allowing those who have been in trouble with the law to receive assistance.
A few years ago, former HUD Secretary Shaun Donovan began encouraging housing authorities and affordable housing owners to give “second chances” to persons with a criminal record. In 2011, Donovan stated, “the difficulties in reintegrating into the community increase the risk of homelessness for released prisoners, and homelessness increases the risk of subsequent re-incarceration.” His goal was to “[help] ex-offenders gain access to one of the most fundamental building blocks of a stable life – a place to live.” This recent notice is a continuation of that thought.
HUD states that housing authorities and affordable housing owners still have the right to broad judgment, but they must now follow specific guidelines in denying eligibility, terminating assistance, or evicting individuals due to criminal activity. The highlighted decrees are 1) “one-strike” policies are not required, 2) an arrest is not evidence of criminal activity, and 3) affordable housing tenants still have the right to due process.
Many housing authorities and affordable housing owners operate “one-strike” policies, but HUD requires proper judgment in these cases. It must be determined what types of criminal or drug-related activity are allowed on premises. While this is being decided on, certain factors must be considered: the seriousness of the crime, the effect the eviction would have on family members not involved with criminal activity, and the extent the leaseholder has taken to reduce or prevent criminal activity on premise.
Perhaps the most significant component of this notice is the ruling of what constitutes criminal activity. Notice H-2015 specifically states that “an arrest is not evidence of criminal activity,” and an arrest cannot be the sole basis of denying assistance, terminating assistance, or eviction. The notice states that being arrested for a crime only means that they are suspected of a crime. It is further explained that “in the 75 largest counties in the country, approximately one-third of felony arrests did not result in conviction, with about one-quarter of all cases ending in dismissal.”
If a decision is being made to deny assistance, there must be “sufficient evidence that the individual engaged in such activity.” In regards to both Section 8 and Public Housing, a person may not be denied assistance on mere suspicion that they, a member of the household, or guest of the household has engaged in criminal activity. If an individual is being denied assistance, having assistance terminated, or being evicted, there must be an indication that they are not suitable for tenancy, or sufficient evidence that they have engaged in criminal activity. If a decision is made to deny assistance, the housing authority or affordable housing owner should be prepared to provide evidence in court, including police reports, witness statements, and any other documentation the party deems relevant.
In the event that a housing authority or affordable housing owner makes the decision to deny assistance, terminate assistance, or evict a member of the household, Notice H-2015 reminds housing authorities and affordable housing owners that federal law requires that tenants and applicants have the right to due process. This means that tenants and applicants must be sent notification with the opportunity to dispute denial of assistance, and they also have the right to request an informal hearing after assistance is denied.
On the subject of termination or eviction, housing authorities and affordable housing owners must take action through state or local court. In the case of a Section 8 Housing Choice Voucher holder, there must be a hearing scheduled with an impartial officer. When arguing their case, the tenant must be allowed to be represented by counsel, question witnesses, and refute evidence.
In association with due process rights, this notice also states that all actions by a housing authority or affordable housing owner must comply with the civil rights legislation identified in the HUD document. You can find these regulations in Section 6 of the notice.
To assist housing authorities and affordable housing owners in making appropriate decisions, several examples are given in Section 7 of Notice H-2015. It is helpful to read these examples yourself to get an idea of what you may experience when going through the denial, termination, or eviction process. We have provided some excerpts below:
We recommend keeping this information on hand, especially if a member of your household has a criminal record. It is important to know your rights as a tenant and applicant, and this notice provides clear guidelines on the procedures to take when a housing authority or affordable housing owner takes action against a tenant with criminal history.