1. Background

a. Access to housing is central to the stability of individuals and their communities.

i) But for people with criminal records - and their families - even basic shelter is hard to find.

ii) Incarceration almost invariably leads to loss of stable housing.

(1) Then, when a person returns from prison or jail, she usually finds herself homeless, relying on local shelter systems or the generosity of family members or friends.

(2) In New York City, over thirty percent of single adults in the shelter system were recently released from local jails (substantially more if prisons are included), and many cycle between shelters and incarceration.

iii) Research indicates that homelessness is also directly linked to re-incarceration of people who have served jail or prison sentences.

(1) For instance, homeless individuals on parole have been shown to be seven times more likely to abscond after the first month of release than those located in more permanent housing.

b. There are legal bars on subsidized housing and consequences in private housing.

c. As with other areas, these sanctions are not limited to convictions, and not limited to felony convictions.

d. They illustrate that the fallout of criminal proceedings occurs in the civil or administrative realm, without the basic constitutional protections afforded at criminal trials, and with much different burdens of proof and evidentiary standards.

e. They create tremendous barriers to family reunification upon reentry from jail or prison.

2. "Bawdy House" Evictions (Narcotics Eviction Proceedings/Illegal Use of Residence)

a. By operation of 3 statutes: RPL § 231(1), RPAPL § 711(5), RPAPL § 715

i) RPL § 231 voids the lease; RPAPL § 711(5) gives Landlord cause of action to evict; RPAPL § 715(1) authorizes other parties to evict and establishes presumptions.

b. Landlord, usually with assistance and insistence of the District Attorney (in New York City, each borough has a special Narcotics Eviction Unit), must prove that tenant used the premises "as a bawdy-house, or house or place of assignation for lewd purposes, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business." RPAPL § 711(5).

i) Elements: (a) illegal conduct, (b) engaged in a business, (c) on more than one occasion, (d) involving the premises to be recovered, (e) with the participation, knowledge, or passive acquiescence of one or more of the tenants of record.

ii) No Stay Available: Generally, the tenant cannot stay the eviction proceeding pending the outcome of the criminal case.

iii) Fifth Amendment Bind:In Housing Court, your client will be faced with a choice between waiving his 5^th Amendment rights and testifying, or invoking his rights and suffering an adverse inference (permitted in civil cases).

iv) Warning:You must know every time your client appears in Housing Court for a Drug Eviction proceeding! The proceeding inherently explores the underlying facts of the criminal case, it is on the record, and an Assistant District Attorney will be in Housing Court to follow the case.

c. Drugs:Generally, eviction begun whenever a search warrant is executed in the apartment.

i) Practice Tip:If the criminal case arose from a search warrant for drugs, tell your client to be prepared to defend against an eviction proceeding.

d. Prostitution (RPAPL § 715(2)): Two or more convictions of any occupant within the period of a year for P.L. §§ 230 (prostitution, m/d); 230.05 (patronizing a prostitute 2, F); 230.20 (promoting prostitution 4, m/d); 230.25 (promoting prostitution 3, F); 230.30 (promoting prostitution 2, F); 230.40 (permitting prostitution, m/d), arising out of conduct engaged in at the subject property, shall be presumptive evidence of conduct constituting use of the premises for purposes of prostitution.

e. Gambling offenses (RPAPL § 715(3)): Two or more convictions of any occupant within the period of a year for P.L. §§ 225.00 (definitions); 225.05 (promoting gambling 2, m/d); 225.10 (promoting gambling 1, F); 225.15 (poss. of gambling records 2, m/d); 225.20 (poss. of gambling records 1, F); 225.30 (poss. of gambling device, m/d); 225.32 (poss. of gambling device, defenses); 225.35 (gambling offenses, presumptions); 225.40 (lottery offenses, no defense), arising out of conduct engaged in at the subject property, shall be presumptive evidence of unlawful use of the premises and of the owner's knowledge of the same.

f. Practice Tip 1: ASK your clients to inform you immediately if they are served with eviction papers - otherwise, they may testify on the record in Housing Court about the underlying facts of the criminal case without your knowledge.

g. Practice Tip 2: The District Attorneys in the five boroughs of New York City have in the past released sealed records from criminal cases to support these evictions. Increasingly, they also obtain ex parte unsealing orders. Significant caselaw indicates that such unsealings are improper. See, e.g., Katherine B. v. Cataldo, 5 N.Y.3d 196 (2005); People v. Manauri R., NYLJ 21, col. 1 (Sup. Ct. Bronx Co. Oct. 22, 2004); People v. Canales, 174 Misc. 2d 387 (Sup. Ct. Bronx 1997).

i) For extensive resources on dealing with this issue, consult Reentry Net/NY at www.reentry.net/ny.

3. Private Landlords

a. Many criminal offenses can also spark an eviction under the "nuisance" theory or as a violation of a "substantial obligation" of the lease.

b. Definition of Nuisance

i) Generally, the offensive conduct must be ongoing and continuous.

ii) The tenant is using or permitting the apartment to be used for an immoral or illegal purpose.

iii) The tenant is committing or permitting a nuisance, or is maliciously or by reason of gross negligence substantially damaging the housing accommodation; or his conduct is such as to interfere substantially with the comfort and safety of the landlord or of other tenants or occupants of the same or another adjacent building or structure.

iv) Landlord must prove that tenant's conduct "interfered with the use or enjoyment" of the property.

4. Effect of Incarceration - Nonprimary Residence Holdovers (Rent Control/Stabilization Law)

a. Incarceration may lead to nonprimary residence holdover if tenant is out of a Rent Stabilized or Rent Controlled apartment over 180 days.

b. Civil commitment for mental health issues is an excusable absence, Katz v. Gelman, 177 Misc.2d 83 (App. Term, 1^st Dept. 1998), and the same theory might be extended to incarceration.

5. Housing Discrimination - Rights & Protections

a. Disability & Race (Federal and State Fair Housing Acts)

i) The powerful fair housing provisions that protect people with disabilities against discrimination and require reasonable accommodation also protect recovered substance abusers as persons with disabilities. See Exec. L. §§ 290 et seq.; 42 U.S.C. 3604(f).

ii) In addition, a landlord's policy or practice of excluding persons with conviction records has a disparate impact on African-Americans and Latinos. See id; Civ. Rights L. §§ 18-a to 19-b.

b. Federal and State Fair Credit Reporting Acts (FCRA) (Employment & Housing)

i) Most private employers and landlords receive criminal history information from a variety of consumer reporting agencies (CRAs), rather than official sources. A number of national studies have shown that reports from these CRAs are notoriously incorrect or incomplete. FCRA establishes standards of accuracy and procedural rights if a report is the basis for adverse decisions. See 15 U.S.C. § 1681 et seq.

ii) NY FCRA prohibits reporting non-criminal convictions, such as violations. See Gen. Bus. L. § 380 et seq.

iii) These protections can be used to promote fairness in both employment and housing decisions.

Federally Subsidized Housing

(Public, Federally-Assisted, or Section 8 Housing)

Provisions Applicable to All Federally-Subsidized Housing

1. Public Housing Authorities (PHA's) administer most of the federally subsidized housing programs in NY, including public housing and most of the Section 8 voucher program. In New York City, the PHA is the New York City Housing Authority (NYCHA).

2. Each PHA must publish standards for denying eligibility and terminating assistance based on criminal activity and substance abuse.

a. PHA's can institute policies that are more restrictive than the federal law and regulations described below.

b. Admission to Programs: PHA's have the authority to bar eligibility for a reasonable period of time after any criminal activity. (42 USC § 13661(c).)

i) Upon application, PHA will fingerprint all members of the household (except those under 16) and run a criminal background check.

ii) Generally, for each conviction, there is a specific time period of ineligibility after the person's sentence, probation, and payment of fine.

c. Termination from Programs: PHA's and Landlords generally have the authority to terminate or evict residents for any new criminal activity.

d. PHA's and Landlords can require the exclusion of an offending household member as a condition of admission or continued benefits.

3. Definitions (24 CFR § 5.100)

a. Drug-related Criminal Activity: the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute, or use the drug.

b. Drug: a controlled substance as defined in section 102 of the Controlled Substances Act, 21 USC § 802.

c. Violent Criminal Activity: any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.

d. Guest: a person temporarily staying in the unit with the consent of a tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant.

e. Person Under the Tenant's Control: a person, although not staying as a guest, on the premises at the time of the activity in question because of an invitation from the tenant or other household member with express or implied authority to consent on behalf of the tenant. Absent evidence to the contrary, a person temporarily and infrequently on the premises solely for legitimate commercial purposes is not under the tenant's control.

Conventional Public Housing

1. Admission to Programs (24 CFR §§ 960.203 & 960.204)

a. Mandatory Denial: The following categories of applicants WILL be found ineligible:

i) Persons Subject to Lifetime Sex Offender Registration (42 U.S.C. § 13663(a)): Any household with a member who is subject to a lifetime registration requirement under a state sex offender registration program is ineligible for public, federally assisted, or Section 8 housing.

ii) Persons Convicted of Methamphetamine Production (42 USC § 1437n(f)): Permanent bar for any individual who has ever been convicted of drug-related criminal activity for manufacture or production on methamphetamine on the premises of federally-assisted housing.

b. Presumptive Denial: The following categories of applicants WILL be found ineligible unless the relevant mitigation provisions are satisfied:

i) Persons Evicted in Past for Drug-Related Activity: If a household member has been evicted from any public, federally-assisted, or Section 8 housing for drug-related criminal activity within the immediate past 3 years, PHA must deny admission UNLESS the applicant submits evidence to the PHA's satisfaction:

(1) That the affected household member has successfully completed a supervised rehabilitation program approved by the PHA; OR

(2) That the circumstances leading to the eviction no longer exist.

ii) Persons Engaging in Illegal Use of a Drug (42 USC § 13661): PHA will deny admission if:

(1) Any family member is currently engaging in illegal use of a controlled substance; or

(2) There's reasonable cause to believe that a family member's illegal use or pattern of illegal use of a controlled substance may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.

(3) Mitigation Provision: BUT, in determining whether the applicant MUST be found ineligible based on any of the above grounds, the PHA MAY consider evidence submitted by the applicant that the affected family member is no longer engaging in the activity and:

(a) participates in, or has successfully completed, a supervised rehabilitation program; or

(b) has otherwise been rehabilitated successfully.

iii) Persons Abusing Alcohol (42 USC § 13661)

(1) PHA will deny admission if there is reasonable cause to believe that a family member's abuse or pattern of abuse of alcohol may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.

(2) Mitigation Provision: BUT, in determining whether the applicant MUST be found ineligible based on any of the above grounds, the PHA MAY consider evidence submitted by the applicant that the affected family member is no longer engaging in the activity and:

(a) participates in, or has successfully completed, a supervised rehabilitation program; or

(b) has otherwise been rehabilitated successfully.

c. Discretionary Denial

i) Persons Who Engaged in Past Criminal Activity (42 USC § 13661)

(1) For a reasonable amount of time after the criminal activity, the PHA may deny admission if any member of the household engaged in:

(a) Any drug-related criminal activity; or

(b) Any violent criminal activity; or

(c) Any other criminal activity that would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or PHA employees.

ii) (NOTE: Fleeing Felons and Parole Violators are not mentioned in the statutes or regulations concerning Public Housing eligibility, but they are subject to termination. See below.)

d. General Mitigation Provision (24 CFR § 960.203): When the PHA receives any unfavorable information about an applicant:

i) Consideration shall be given to the time, nature, and extent of the applicant's conduct (including the seriousness of the offense);

ii) Consideration may be given to factors that might indicate a reasonable probability of "favorable future conduct," such as:

(1) Evidence of rehabilitation, and

(2) Evidence of the applicant family's participation in or willingness to participate in social service or other appropriate counseling service programs and the availability of such programs.

iii) However, if rehabilitation is not an element of the eligibility determination (see above), the PHA may choose not to consider whether the person has been rehabilitated.

iv) Exclusion of Family Member: The PHA may require an applicant to exclude a household member who has participated in or been culpable for criminal, alcohol, or drug-related activity (those in 24 CFR § 960.204) that warrant denial.

v) Continuation of Denial. The PHA may choose to continue the prohibition of admission past the prescribed period of time for a disqualifying behavior or event. (24 CFR § 960.203(c)(3).)

e. Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence that permits tenants with criminal convictions to obtain stable public housing.

2. Termination or Eviction (42 USC § 1437d(l); 24 CFR § 966.4)

a. Mandatory Termination: The following categories of current public housing residents WILL have their subsidies terminated and be evicted from public housing:

i) Persons Subject to Lifetime Sex Offender Registration: [see above];

ii) Persons Convicted of Methamphetamine Production: [see above];

b. Discretionary Termination:The following categories of residents MAY be terminated:

i) Persons Engaging in Illegal Use of a Drug: [see above, including specific mitigation provision];

ii) Persons Abusing Alcohol: [see above, including specific mitigation provision];

iii) Persons Furnishing False Information: Any person who furnished false or misleading information concerning illegal drug use, alcohol abuse, or rehabilitation of illegal drug users or alcohol abusers;

iv) Persons Engaging in Criminal Activity

(1) Drug Crime On or Off the Premises: if any tenant, member of the tenant's household, or guest engages in any drug-related criminal activity on or off the premises, or any other person under the tenant's control engages in any drug-related criminal activity on the premises;

(a) Warning:PHA's have the authority to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants or guests. Dep't of Housing & Urban Dev. v. Rucker, 535 U.S. 125 (2002).

(2) Crimes Entailing Threat to Other Residents: if a public housing tenant, any member of the tenant's household, or guest, or any other person under the tenant's control engages in any criminal activity threatening the health, safety, or right to peaceful enjoyment of the premises by other tenants, or by persons residing in the immediate vicinity of the premises;

(3) Evidence: Neither an arrest nor a conviction is necessary, and the standard of proof required for a criminal conviction need not be satisfied. However, the PHA must provide some evidence that the criminal activity has occurred.

v) Fleeing Felons: if the tenant is fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the individual flees, for a crime (or attempt to commit a crime) that is a felony under the laws of the place from which the individual flees (or a high misdemeanor in NJ);

vi) Parole Violators: if the tenant is violating a condition of probation or parole imposed under Federal or State law.

vii) General Mitigation Provision: for all discretionary terminations, the PHA may consider all relevant circumstances such as:

(1) The seriousness of the offending action;

(2) The extent of participation by the leaseholder in the offending action;

(3) The effects that the eviction would have on family members not involved in the offending activity; and

(4) The extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action.

viii)Exclusion of Family Member. The PHA has discretion to evict only the wrong-doer, but PHA's can and frequently do evict entire families.

ix) Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence that can prevent the loss of public housing due to criminal convictions.

3. Grievance Procedure (24 CFR § 966.50-57)

a. Notice. Written notice of lease termination is required within a reasonable period of time, not to exceed 30 days, informing tenant of the grounds for termination, the right to reply to the notice and examine any documents directly relevant to the lease termination, and whether and when the tenant is entitled to request a grievance hearing. (24 CFR § 966.4(l)(3).)

b. Grievance Process.

i) Informal Settlement. First step is to attempt to settle the matter at an informal conference, usually scheduled within ten working days of filing a grievance.

ii) Formal Hearing. Within five days of receiving the results of the informal hearing, complainant must file a written request for a formal grievance hearing. Within a reasonable time after the formal hearing, usually ten working days, the hearing panel/officer must issue a decision.

c. Grievance Hearing Not Required. If the PHA is terminating the lease by judicial action (e.g., in Housing Court) and HUD has determined that the state's eviction procedure meets HUD's requirements for due process ("due process determination"), the terminations for the following reasons are NOT subject to the administrative grievance procedure:

i) Any criminal activity entailing a threat to other residents [see above];

ii) Any violent or drug-related criminal activity [see above]; or

iii) Any criminal activity that resulted in a felony conviction of a household member.

4. References:The extensive HUD Public Housing Occupancy Guidebook is available online at www.hud.gov/offices/pih/programs/ph/rhiip/phguidebooknew.pdf.

Public Housing in New York City

New York City Housing Authority (NYCHA)

1. Admission

a. Bases for Ineligibility:

i) Persons with a Criminal Record

(1) For public housing, NYCHA has set ineligibility periods for families containing persons within the categories below: (Applications Manual, Ex. F, "Standards for Admission: Conviction Factors and End of Ineligibility Periods - Public Housing Program")

NYCHA Public Housing
Criminal Conviction	Years After Serving Sentence (including completion of probation/parole and payment of fine)
Subject to a lifetime registration requirement under a state sex offender registration program	Until the convicted person is no longer subject to a lifetime registration requirement
Felonies
Class A, B, and C	6 years
Class D and E	5 years
Misdemeanors
Class A	4 years (5 years if 3+ convictions for Class A m/d or felonies within last 10 years)
Class B or unclassified	3 years (4 years if 3+ convictions for m/d or felonies within last 10 years)
Violations or Infractions
Violations or DWI	2 years (3 years if 3+ convictions for felonies, m/d, violations or DWI infractions within last 10 years)
Multiple Convictions	Ineligible for longest applicable period.

(2) Pending Charges: NYCHA will deny or hold an application if any criminal charges are pending, including an ACD before actual dismissal.

(a) Practice Tip: Judges and prosecutors have agreed to shorten adjournment periods in this situation.

(3) Excluded Crimes: NYCHA does have a short list of offenses that it officially disregards as a basis of ineligibility, including some felonies, misdemeanors, and violations. Applicant must present a copy of the original charges to prove that one of these offenses was the only basis. (Applications Manual, Ex. H, "Overlooked Offenses - Public Housing Program.")

(a) Felonies

(i) Unlawful use of secret scientific material;

(ii) Trademark counterfeiting in 1^st and 2^nd degree;

(iii) Manufacture of unauthorized recordings in 1^st degree;

(iv) Manufacture or Sale of an unauthorized recording or performance in 1^st degree;

(v) Advertisement or sale of unauthorized recordings in 1^st degree;

(vi) Failure to disclose origin of recording in 1^st degree.

(b) Misdemeanors

(i) Subway fare evasion (first or second offense in last 10 years);

(ii) Self-abortion in 1^st and 2^nd degree;

(iii) Consensual sodomy;

(iv) Fortune telling;

(v) Trademark counterfeiting in 3^rd degree;

(vi) Manufacture of unauthorized recordings in 2^nd degree;

(vii) Manufacture or sale of an unauthorized recording or performance in 2^nd degree;

(viii) Advertisement or sale of unauthorized recordings in 2^nd degree;

(ix) Failure to disclose origin of recording in 2^nd degree;

(c) Violations

(i) Hazing in 2^nd degree;

(ii) Unlawfully posting advertisements;

(iii) Littering on railroad tracks and rights-of-way;

(iv) First offense for theft of cable television service, for avoiding payment for admission to a theater or a concert hall or a ski lift;

(v) Misconduct by a juror in 2^nd degree;

(vi) Offensive exhibition;

(vii) Unauthorized operation of a recording device in a motion picture theater;

(viii) NOTE: Disorderly Conduct (PL § 240.20) and Harassment (PL § 240.26) are NOT on this exclusion list.

(4) McNair Hearing (challenging ineligibility for criminal offenses) (Applications Manual, Chap IX, Sec. V, Subsec. B (2).)

(a) A grievant found "ineligible due to convictions" has the right to produce evidence of her rehabilitation to overcome any denial of eligibility. See Faison v. New York City Housing Authority, 283 A.D.2d 353, 354 (1st Dep't 2001).

(b) Applicant family must show that the only basis for ineligibility is an offense that NYCHA has chosen to overlook, OR present substantial evidence to indicate a reasonable probability that offending person's future behavior will not adversely affect the physical or financial health, safety, or welfare of other tenants, Authority staff, or an Authority project.

(c) Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence in McNair hearings.

(d) See Guidelines for AIO Staff When Considering Applicants Found Ineligible Due to Convictions for factors and proof that categorically meet this standard.

ii) Persons who have started fires within the last four years (through arson; smoking in bed; abandoned, discarded, or improperly placed material; children over six playing with a heat source; heat source unattended or combustible material placed too close to a heat source; or use of flammable liquid to start a fire);

iii) Persons who within the last 3 years have behaved violently or have destroyed property;

iv) Persons who within the last 3 years have disturbed neighbors;

v) Persons with grossly unsanitary or hazardous housekeeping habits;

vi) Persons who within the last 3 years have illegally used a controlled substance, UNLESS

(1) The family provides:

(a) written verification from a state-licensed drug treatment agency that the offending person has been drug-free for 12 months; and

(b) a current clean toxicology report; or

(2) The family provides substantial evidence that the offending person:

(a) is no longer engaging in the illegal use of a controlled substance, and

(b) has otherwise been rehabilitated successfully;

(3) (See "New Drug Policy" effective June 15, 2000. At eligibility interview, the applicant is asked if any family member has used illegal drugs in the past three years.)

vii) Persons permanently excluded from a NYCHA apartment within the last 5 years;

viii) Persons terminated from NYCHA employment within the last three years after a trial for behavior that would constitute a felony, m/d, violation, or intoxication on the job.

ix) (See NYCHA Applications Manual, Ex I, "Standards for Admission: Non-Penal Factors & End of Ineligibility Periods (EIP) - Public Housing Program")

b. General Mitigation Provision

i) Evidence of rehabilitation;

ii) Evidence of family's participation in or willingness to participate in social service or other appropriate counseling service programs and the availability of such programs.

c. (See generally NYCHA Applications Manual, Chap V, Sec. II, Subsec. F, "Standards for Admission.")

2. Termination for "Non-desirability"

a. NYCHA tenants can have their subsidies terminated (in an administrative hearing, which leads to an eviction in Housing Court) for their conduct or the actions of any person occupying the premises of the tenant which constitutes:

i) A danger to the health and safety of neighbors;

ii) A sex or morals offense on or near the NYCHA premises;

iii) A source of danger or a cause of damage to NYCHA employees or property;

iv) A danger to the peaceful occupation of other tenants;

v) A common law nuisance.

b. Grievance Procedure. NYCHA continues to be bound by various consent decrees (especially the Escalera decree) that are more protective of tenants than current federal law. (See "New York City Housing Authority Grievance Procedures" under NYCHA Useful Materials on probono.net.)

i) Probably the most important provisions relevant to criminal conduct are in the Randolph/Tyson consent decrees, which state that a tenant cannot be evicted if the accused person (or "non-desirable") has been removed from the household by the time of the administrative hearing.

ii) In those cases, the tenant can only be placed on probation and the non-desirable can be permanently excluded from living there.

iii) These cases involve the classic "innocent family member" scenario - where a parent or grandparent is the tenant being evicted for the alleged conduct of a child or grandchild.

iv) Procedure

(1) NYCHA will provide notice of administrative termination proceedings at least 15 days before the hearing is to be held. The hearing generally can be postponed until after a criminal disposition. A favorable termination in the criminal proceeding (dismissal, ACD, acquittal) usually causes NYCHA to withdraw the termination proceeding.

(2) But beware, ANY conviction (even for a violation) can be used as a basis for termination because it can be a basis for ineligibility (see above).

(3) After the hearing, the Hearing Officer will provide a written decision and make a disposition with respect to each of the charges.

v) Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence in termination hearings.

c. (See generally NYCHA Management Manual - Chapter VII, Sec. III & IV, "Termination of Tenancy," and Appendix B - "Termination of Tenancy - Non-Desirability Actions")

3. Termination for other Prohibited Conduct

a. Misrepresentation: if the tenant makes a willful misstatement or conceals any material fact relating to eligibility for admission or continued occupancy;

b. Breach of Rules and Regulations: if the tenant or any person occupying the tenant's premises violates a NYCHA rule or regulation;

c. Chronic Breach of Rules and Regulations: if the tenant or any person occupying the tenant's premises repeatedly violates a NYCHA rule or regulation;

d. Chronic Delinquency on the Payment of Rent: if the tenant repeatedly fails or refuses to pay rent within the month due at least 3 times within a 12 month period;

e. Non-verifiable Income: if the tenant fails or refuses to submit to a verification of family income;

f. Assignment or Transfer of Possession: if the tenant of record moves from the apartment and the apartment is being occupied by a person without NYCHA permission;

g. Squatter/Licensee Occupancy: if the tenant has moved and admits to having moved and the apartment is being occupied by a person without any legal claim or right to it;

h. Loss of Resident Employee Status: if an employee loses resident status, unless such employee is eligible to become a tenant;

i. Non-Payment of Rent: if the tenant fails to pay rent on the date fixed for payment.

j. (See NYCHA Management Manual - Chapter VII, Sec. III & IV, "Termination of Tenancy")

Section 8 Program

1. Generally

a. The Section 8 Housing Choice Voucher Program subsidizes tenants to rent apartments from private landlords.

b. The local PHA usually administers each Section 8 program.

c. The crime-related eligibility and termination standards generally parallel those of Conventional Public Housing.

2. Admission to Program(42 USC § 1437f; 24 CFR §§ 982.552 & 982.553)

a. Mandatory Denial: The following categories of applicants WILL be found ineligible:

i) Persons Subject to Lifetime Sex Offender Registration: [same as for public housing]

ii) Persons Convicted of Methamphetamine Production: [same as for public housing]

b. Discretionary Denial: The PHA has the discretion to deny the following (subject to the listed mitigation provisions):

i) Persons Evicted in Past for Drug-Related Activity: [same as for public housing, including specific mitigation provision];

ii) Persons Engaging in Illegal Use of a Drug: [same as for public housing, including specific mitigation provision];

iii) Persons Abusing Alcohol: [same as for public housing, including specific mitigation provision];

iv) Persons Who Engaged in Past Criminal Activity: if any household member is currently engaged in, or has engaged in during a reasonable time before the admission:

(1) Drug-related criminal activity;

(2) Violent criminal activity;

(3) Other criminal activity that may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or persons residing in the immediate vicinity;

(4) Other criminal activity that may threaten the health or safety of the owner, property management staff, or persons acting on behalf of the PHA.

(5) NOTE: If the PHA previously denied an application due to criminal activity, it may reconsider the applicant if the PHA has sufficient evidence that the members of the household have not engaged in such criminal activity during a reasonable period.

v) Persons Who Committed Fraud: If any member of the family has committed fraud, bribery, or any other corrupt or criminal act in connection with any Federal housing program;

vi) Persons Who Threaten PHA personnel: If the family has engaged in or threatened abusive or violent behavior toward PHA personnel;

vii) Persons Who Have Been Evicted or Terminated: If any member of the family has been evicted from federally assisted housing in the last five years, or if a PHA has ever terminated assistance under the program for any member of the family.

viii) (NOTE: Fleeing Felons and Parole Violators are not mentioned in the statutes or regulations concerning Section 8 eligibility, including 42 USC § 1437f and 24 CFR Part 982.)

ix) General Mitigation Provision: (24 CFR § 982.552(c)(2))

(1) For all discretionary denials, the PHA may consider all relevant circumstances such as:

(a) The seriousness of the case;

(b) The extent of participation or culpability of individual family members;

(c) Mitigating circumstances related to the disability of a family member; and

(d) The effects of denial or termination of assistance on other family members who were not involved in the action or failure.

(2) Disability: If the family includes a person with disabilities, the PHA decision is subject to consideration of reasonable accommodation in accordance with 24 CFR Part 8.

(3) Exclusion of Family Member: the PHA may require the exclusion of the culpable family member from the household.

x) Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence that permits tenants with criminal convictions to obtain Section 8 vouchers.

3. Termination or Eviction (42 USC §§ 1437f(d) & 1437f(o)(7)(D))

a. Termination by PHA (24 CFR §§ 982.551, 982.552, 982.553)

i) Mandatory Termination: The following categories of Section 8 recipients WILL have their subsidies terminated and be evicted:

(1) Persons Subject to Lifetime Sex Offender Registration: [same as for public housing];

(2) Persons Convicted of Methamphetamine Production: [same as for public housing];

ii) Discretionary Termination:The following categories of residents MAY be terminated:

(1) Persons Engaging in Illegal Use of a Drug: [same as for public housing, including specific mitigation provision];

(2) Persons Abusing Alcohol: [same as for public housing, including specific mitigation provision];

(3) Persons Engaging in Criminal Activity: if any household member has violated his lease obligation not to engage in any:

(a) Drug-related criminal activity;

(b) Violent criminal activity;

(c) Evidence: Neither an arrest nor a conviction is necessary [same as for public housing]. (24 C.F.R. § 982.553(c).)

(i) NOTE: the criteria for PHA terminations do not include criminal activity that threatens the health or safety of other tenants or PHA workers.

(4) Persons Who Committed Fraud: [same as for Section 8 Admission];

(5) Persons Who Threaten PHA personnel: [same as for Section 8 Admission]

(6) (NOTE: Fleeing Felons and Parole Violators are not mentioned in the statutes or regulations concerning Section 8 termination by the PHA, including 42 USC § 1437f and 24 CFR Part 982. BUT, the HUD Guidebook states that PHA's may terminate on those grounds.)

(7) General Mitigation Provision: [same as for Section 8 Admission.]

(8) Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence that can prevent the loss of Section 8 vouchers due to criminal convictions.

iii) Grievance Procedure. PHA must provide prompt written notice of termination and right to request an informal hearing. The family must be given the opportunity to examine any directly-relevant documents prior to the PHA hearing. (24 CFR § 982.555.)

b. Termination or Eviction by Owner/Landlord (24 CFR § 982.310)

i) The owner or landlord may terminate the tenancy by evicting the household in Housing Court because the relevant tenant obligations of good conduct, incorporated as lease provisions, have been violated.

ii) Discretionary Termination:The owner/landlord may evict or require the exclusion of the following categories of residents:

(1) Persons Engaging in Illegal Use of a Drug: [same as for public housing, including specific mitigation provision];

(2) Persons Abusing Alcohol: [same as for public housing, including specific mitigation provision]

(a) NOTE: this ground is not listed in 982.310, but it is still a lease requirement, the violation of which is grounds for eviction;

(3) Persons Engaging in Criminal Activity

(a) Drug Crime On or Near the Premises: if any tenant, member of the tenant's household, or guest engages in any drug-related criminal activity on or near the premises, or any person under the tenant's control engages in any drug-related criminal activity on the premises;

(i) NOTE that this provision is more limited than the PHA's authority.

(b) Violent Criminal Activity: if any tenant, member of the tenant's household, or guest engages in any violent criminal activity on or near the premises, or any other person under the tenant's control engages in such activity on the premises;

(i) NOTE that this provision is more limited than the PHA's authority.

(c) Other criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents;

(d) Other criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity;

(e) Evidence: Neither an arrest nor a conviction is necessary [see above].

(4) Fleeing Felons: [same as for public housing];

(5) Parole Violators: [same as for public housing];

(6) The owner/landlord may also evict for serious or repeated violation of the terms and conditions of the lease, including all tenant obligations in 24 CFR § 982.551. The owner/landlord can also evict for "other good cause," including failure to accept a new lease, a history of disturbance or destruction of property, owner's desire to use the unit for personal use, sale, renovation, or to lease at a higher rent, or other economic reason.

(7) Exclusion of Family Member. The owner may require a tenant to exclude a culpable household member as a condition of continued tenancy.

iii) General Mitigation Provision: for all of these grounds, when action is not required by law, the owner/landlord may consider all relevant circumstances such as:

(1) The seriousness of the offending action;

(2) The effect on the community of denial or termination or the failure of the owner to take such action;

(3) The extent of participation by the leaseholder in the offending action;

(4) The effects that the eviction would have on family members not involved in the offending activity;

(5) The demand for assisted housing by families who will adhere to lease responsibilities;

(6) The extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action; and

(7) The effect of the owner's action on the integrity of the program.

c. Absence from Unit (24 C.F.R. § 982.312)

i) Absence from unit: the family may not be absent from the unit for a period of more than 180 consecutive calendar days. (24 CFR § 982.312(a).)

ii) Absence means that no member of the family is residing in the unit. (§ 982.312(c).)

iii) Practice Tip:Be careful of this provision when a client is incarcerated or entering a residential treatment program.

d. Changes in Household Composition (24 CFR § 982.551)

i) A participant must keep the Section 8 PHA informed of any changes in household composition. Tenants have been terminated for failure to notify Section 8, particularly for additions to the household.

ii) Tenants who do not notify Section 8 of additions can also be prosecuted criminally for fraud.

Section 8 in New York City

NYCHA Section 8

1. Generally

a. The vast majority of Section 8 vouchers in New York City are administered by NYCHA. The City Department of Housing Preservation and Development (HPD) also administers a significant number for families in limited situations.

2. Admission to Program

a. Note that NYCHA has chosen to overlook a broader range of offenses under Section 8 housing than under Public Housing and has set specific ineligibility periods only for sex offenders subject to a lifetime registration requirement, violent felonies, and controlled substances or alcohol-related offenses. (See NYCHA Applications Manual, Exhibit G "Section 8 Program - NYS Penal Code and Traffic Law Sections with respect to Violent Felonies, Controlled Substances and Alcohol-Related Offenses"; Ex. FF, "Standards for Admission: Conviction Factors & End of Ineligibility Periods - Section 8 Housing Assistance Program," and Ex. HH, "Overlooked Offenses - Section 8 Housing Assistance Program," NYCHA Applications Manual, Chap VI, Sec. II, Subsec. E (3).)

NYCHA Section 8
Criminal Conviction	Years After Serving Sentence (including completion of probation/parole and payment of fine)
Subject to a lifetime registration requirement under a state sex offender registration program	Until the convicted person is no longer subject to a lifetime registration requirement
Violent Behavior, Controlled Substances or Alcohol Related Offenses
Class A, B, and C	6 years
Class D and E	5 years
Controlled Substances or Alcohol Related Offenses
Class A Misdemeanors	4 years (5 years if 3+ convictions for Class A m/d or felonies within last 10 years)
Class B or Unclassified Misdemeanors	3 years (4 years if 3+ convictions for m/d or felonies within last 10 years)
Controlled Substances or Alcohol Related Offenses
Violations or DWI	2 years (3 years if 3+ convictions for felonies, m/d, violations or DWI infractions within last 10 years)
Multiple Convictions	Ineligible for longest applicable period.

b. For a list of specific offenses, see NYCHA Applications Manual, Exhibit G "Section 8 Program - NYS Penal Code and Traffic Law Sections with respect to Violent Felonies, Controlled Substances and Alcohol-Related Offenses."

c. McNair hearing (challenging ineligibility for criminal offenses): Same as for NYCHA public housing. (See NYCHA Applications Manual, Chap IX, Sec. VIII, Subsec. B(2).)

d. Practice Tip: CRDs and CGCs [see above re Certificates that Promote Rehabilitation] can be critical mitigation evidence that permits tenants with criminal convictions to obtain Section 8 vouchers.

3. Termination or Eviction

a. These provisions are substantially the same as for the Section 8 program generally, although some special requirements have been instituted by consent decree.

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