Appealing Section 8 Termination is Often the Right Decision

Massachusetts tenants have complained to me about the callousedness they face from their landlords – as well as their subsidy administrators (housing authority). The rules governing administration of Section 8 housing subsidies are spelled out at 24 CFR 982, et seq., and a copy of the tenancy addendum spelling out the majority of those regulations must be attached to each lease signed by the subsidy-recipient.

I had a case recently that closely mirrored the holding in Carter v Lynn Housing Authority (LHA), 450 Mass. 626 (2008). In Carter, the housing court judge reinstated the subsidy that was ultimately deemed to have been unlawfully terminated by the LHA. The hearing officer in that case failed to exercise or even recite the discretion vested in him during a concise recitation of the housing authority’s version of the facts, in terminating the tenant’s Section 8 subsidy for alleged damage to the property. The tenant there brought up a number of facts that showed she did not cause the damage, but the hearing officer plowed forward in terminating her tenancy.

If you receive a termination of subsidy letter, it may be a good time to contact an experience housing attorney. It is important that you act fast – often your appeal for an “informal grievance hearing” must be claimed within 10 days. You should file your notice of appeal with the housing authority in a provable way, such as by email or by getting a time-stamped copy of the written letter you submit in person, if email is not an option.

The termination notice must state the specific reasons for termination and the facts supporting the allegations. You are entitled to get a copy of your entire file and any documents or information within the custody and control of the housing authority that are relevant to your defense(s). Any such requests should be made in writing to your case manager or, if necessary, the Executive Director.

You should also inform the housing authority that you will be audio recording the entire hearing, as if your express right. The recording can form the basis of an audio transcript in case you have to make an additional appeal to Housing Court. In most cases in Massachusetts, you cannot and should not record someone without their consent. In the case of Section 8 appeal hearings, the right is may or may not be expressly granted to the subsidy-recipient through the Public Housing Authority Rules, but you should still inform the subsidy administrators that you will be exercising that right prior to the hearing so there is no confusion.

The day of your “informal grievance hearing” you should be prepared to bring with you any documents and other evidence you want to show the hearing officer. See 24 CFR 982.555. The housing authority has a duty to provide an impartial hearing officer, but sometimes it may seem as if your side is not being heard. You should still proceed politely and make sure you get all of your evidence on the record. The audio recording is a good tool to make sure everyone is acting appropriately at the hearing. If, for some reason, you are barred from recording, point out that fact in writing as soon as possible to the housing authority to preserve the fact for appeal to the Housing Court.

Many times, the housing authority will back down and simply correct the oversight that lead to an erroneous subsidy termination. In other cases, the housing authority will seemingly bring in a biased hearing officer to help them terminate the tenant’s subsidy for reasons that do not seem to make any sense. Carter v Lynn Housing Authority (LHA), 450 Mass. 626 (2008). If that is the case the housing authority can subject itself to claims by the tenant for reinstatement of the subsidy, violation of civil rights, and discrimination based on protected class.

The tenant has a limited period of time to file suit for discrimination in Housing Court under M.G.L.. c. 151B s.9 and an even shorter time to file with MCAD under c.151B s.4. The housing authority may also pair with the termination such things as denial of a request for a reasonable accommodation, which creates additional potential liability for the administering agency. The tenant/subsidy recipient should make haste to document everything and then seek legal assistance through a housing or benefits attorney, community legal aid, through their local bar association, or at masslegalhelp.org under “housing” if representation cannot be obtained.