HUD Has Cleared the Smoke: It Is Now Safe for Landlords and Public Housing Agencies to Come Down

By now, most have heard the typical story. An elderly woman is diagnosed with cancer. With her doctor’s recommendation, she has turned to medical marijuana to help treat the effects of her ailments. But she also relies on federal housing assistance to pay rent. Sooner or later her landlord will give her notice informing her that she’s being evicted from her federally-subsidized housing unit because she is in possession of an illegal substance. She will likely go through unlawful detainer court proceedings. Upon losing her eviction case, she will have nowhere to go, her symptoms will worsen, and she will face homelessness.

This is the situation faced by many Americans who need medical marijuana to treat their illnesses. California’s Compassionate Use Act allows patients to possess and cultivate marijuana for personal medical use. Landlords rely on the fact that marijuana is currently still illegal under the federal Controlled Substances Act to justify eviction of tenants for possessing an illegal substance. In most cases landlords rely on unsubstantiated neighbor complaints and suspicions about marijuana usage as the basis for their evictions. Many tenants plead for a second chance to remain in their units and in some cases are willing to forego medical marijuana all together in exchange for not losing their housing. But landlords are generally unwilling to reconsider the eviction action, often indicating that they have to follow federal law or risk losing their federal funding.

Approximately 4.8 million households in the United States receive financial assistance through the federally subsidized housing programs of the United States Department of Housing and Urban Development (HUD). HUD programs target low-income individuals living with disabilities and are aimed at creating affordable housing opportunities. This article will focus HUD’s Housing Choice Voucher Program (Section 8) to demonstrate the high degree of discretion afforded to landlords receiving HUD funding. This article will also clarify why these eviction actions are in fact NOT required by federal law and explain the misunderstandings that landlords either knowingly, or unknowingly, rely on when they evict tenants from federally-subsidized housing.

Section 8 is a rental assistance program that provides rental subsidies for low-income households. The program is generally administered by city and county agencies known as Public Housing Agencies (PHAs). Low-income individuals and families apply to their local PHAs and go through an extensive application process set forth in order to qualify for assistance under Section 8. When an individual or a family is approved to participate in the program, they are deemed “voucher holders.” Voucher holders find a unit they would like to rent and then request that the PHA enter into a contract with the landlord to provide a partial payment of the rent. The PHA then inspects the unit and enters into a Housing Assistance Payment (HAP) contract with the landlord. The Voucher Holder is responsible for the remaining portion of the rent depending on their subsidy amount.

HUD provides PHAs with funds to administer the Section 8 Program; PHAs are in turn required to comply with HUD regulations and requirements in order to continue receiving funding. Despite these statutory mandates, PHAs are afforded a significant amount of discretion and authority. One HUD regulation provides that “the PHA must adopt a written administrative plan” that establishes local policies for administration of HUD programs. For example, a PHA administering Section 8 can define the local criteria for admission into the program and can adopt local policies for denial and termination of assistance.

Once they enter into a HAP contract both the PHA and the private landlord are bound by HUD regulations. One such regulation is the Quality Housing and Work Responsibility Act of 1998 (QHWRA). QHWRA requires landlords to “establish lease provisions for continued assistance in federally assisted housing that allow the owner to terminate the tenancy or assistance” for anyone found to be in possession of an illegal substance. Thus, under QHWRA, landlords must, at all times, retain the right to evict or terminate assistance. The significance of this regulation is the fact that landlords are clearly not required to evict or terminate assistance but rather that they are required to preserve their discretion when such situations arise.

Despite the clear discretion provided for by the statute, many landlords continue to act as if their hands are tied when confronted with an individual believed to be in possession of medical marijuana. As if the statutory language was not already clear enough, in 2011, HUD went the extra mile and released an official statement confirming to landlords that they are NOT required to evict tenants found in possession of marijuana in states that have legalized it for either medical or recreational purposes. The 2011 official statement specifically prohibits landlords from affirmatively permitting possession and use of marijuana but nevertheless instructed landlords to “establish policies which allow the termination of tenancy of any household with a member who is illegally using marijuana medical marijuana in federally-subsidized housing.” It also instructed landlords currently in HAP contracts to include, in their rental agreements, a similar provision reserving their right to evict tenants.

Being diagnosed with a life threatening disease should no longer result in homelessness. HUD has spoken; PHAs and landlords can no longer argue that they are at risk of losing their federal funding if they do not evict medical marijuana patients. The typical story does not have to have a typical ending. PHAs and landlords must be urged to consider the surrounding circumstances before they evict another patient suffering from a life threatening disease.

2 responses to “HUD Has Cleared the Smoke: It Is Now Safe for Landlords and Public Housing Agencies to Come Down

  1. Pingback: An Eviction Action Has Been Filed Against You: But How Did We All Get Here? |

  2. Pingback: Marijuana Patients Facing Eviction: Responding to an Eviction Action |