Ending Occupancy of Subsidized Unit
Q A resident of my site recently passed away. I believe the late resident's son will try to continue to stay in the unit, but we do not want him to. How do we request that he move out? How are these situations typically handled?
A According to affordable housing occupancy expert Isha Francis, the issues raised in this question are complicated and call for the guidance of a competent local attorney. The issues are complex because the site owner must abide by HUD program rules as well as state and local law. Because these laws vary so much, general guidance is not possible. The most important thing to do is to hire an attorney, explain the specifics of the situation, and let her guide you.
To begin a conversation with your attorney, familiarize yourself with HUD's rules for determining the eligibility of a remaining member of a resident family in project-based programs. These are found in HUD Handbook 4350.3 REV-2, Chapter 3. Paragraph 3-16-B says that, in order to qualify as a remaining member of a household, the individual:
Must be a party to the lease when the family member leaves the unit; and
Must be of legal contract age under state law.
According to Francis, the HUD program, even if it was intended for the elderly, will dictate whether the son, who is under 62, will be allowed to stay. Rules of specific programs vary. For example, Sections 202 and 811 have additional rules that control both the conditions under which a remaining household member might be allowed to remain in the unit as well as what rent might have to be paid.
If the son is on the lease and has a right to stay, the site manager must have the son come in to complete an interim 50059 form that removes the deceased member and makes the son the head of the household, says Francis. The lease calls for the household to report when someone is no longer in the unit and to have an interim recertification. Section 202 and 811 sites have additional rules depending on the program.
If the son is not on the lease, ask your attorney what action to take. Francis suggests that you be able to tell the attorney whether the son had permission to visit the parent for some extended period of time, or if he just came to visit without telling anyone and never left. Take a copy of your site's visitation policy. If someone continues to live in a unit without a lease, then it becomes a legal issue based on the applicable state landlord-tenant law.
Whatever you do, advises Francis, keep in mind that merely “not wanting” the son to stay on the property is not sufficient grounds to prevent him from doing so. In fact, acting upon such a “want” may well lead to a fair housing or other discrimination complaint.
Isha Francis: President, Benchmark Management Corp., Amherst, NY (716) 833-4986; IFrancis@benchmarkgrp.com.