How to Evict a Section 8 Tenant?: A Complete Guide
The Section 8 rental assistance program helps tenants afford housing by providing a rent voucher. The program is administered federally by the Department of Housing and Urban Development (“HUD”), and administered locally in NYC by the New York City Housing Authority (“NYCHA”). In many cases, the tenant will be responsible to pay a part of the rent that is not covered by the Section 8 voucher. In NYC, landlords accept Section 8 tenants because, at a minimum, they will receive the rent from the voucher. Sometimes, though, the tenant stops paying rent, or the landlord wants to recover the apartment. How can a landlord evict a Section 8 tenant?
There can be many reasons why a landlord would seek to evict a tenant. It could be non-payment of rent. It could be because of a breach of the lease. It could be because the lease has expired and never been renewed. If a tenant is receiving receiving a Section 8 voucher, it adds complexity to the case. There are more procedural safeguards in the case of a Section 8 tenant.
Situation 1: Where Section 8 Tenant Does Not Have a Valid Lease
We’ll start with this situation since it’s probably the simplest of the variations. Generally, a Section 8 tenant will have had a valid lease at some time, and a Housing Assistance Payment (“HAP”) contract. Although tenants will have to re-certify their files, and have the landlord renew these agreements from time to time, sometimes these documents expire.
When the lease expires, the landlord will generally continue to receive the Section 8 subsidy payment. While the tenant is expected to continue paying their portion of the rent, they may not. It’s often the case that a landlord will seek to evict a tenant in this case when the tenant isn’t paying their portion of the rent.
30 Day Notice to Vacate
Since there is no valid lease, the landlord cannot bring a non-payment action. Thus, a landlord has to commence a holdover action against the tenant. Since a Section 8 tenant is involved, the Notice to Quit that is served on the tenant will also have to be mailed or delivered to NYCHA on the same day that the Notice is served on the tenant.
Notice of Petition and Petition
Assuming the tenant does not vacate after the 30 day notice to vacate is served, the landlord will proceed to file a Notice of Petition and Petition. In addition to serving the Notice of Petition and Petition on the tenant, the landlord will have to either (1) serve a copy of the Notice of Petition and Petition on NYCHA (as if they were serving a tenant) or (2) mail a copy of the Notice of Petition and Petition by overnight mail. Note that mailing a copy of the Notice of Petition and Petition by any means other than overnight mail will be considered defective service, and may lead to dismissal of the holdover case.
What Happens in Court?
After service of the Notice of Petition and Petition, you and the tenant have to appear in court on the date that was set in the Notice of Petition. The first appearance is always an appearance for conference, meaning that you will meet with the court attorney to explore settlement, but the case won’t be presented to the judge for trial. Usually, if a party asks for an adjournment at this first conference, it’s granted without any questions.
If the parties cannot settle at this first conference, the case is adjourned for the parties to return. On this next date, the same thing happens – the case is again conferenced to explore settlement. If no settlement can be reached, the case is marked for trial and, depending on how busy the judge’s calendar is, presented to the judge.
Special consideration is given to Section 8 beneficiaries in that judges will give them enough time to transfer their voucher to another apartment. Thus, as a landlord, rather than going back to court time and time again, it might be worth considering entering into a settlement early on giving the tenant time to find a new apartment to transfer the voucher to. If that time expires, the burden shifts to the tenant to file an Order to Show Cause to get more time to find an apartment.
Situation 2: Where Section 8 Tenant Does Have a Valid Lease
If a landlord is seeking to evict a Section 8 tenant where the tenant has a valid lease, there are a few more procedural requirements that a landlord must comply with. First, there must be a valid ground to evict the tenant.
When there is a valid lease, there are two paths a landlord can take to evict a tenant. The first path is for the tenant’s nonpayment of its share of the rent. Where the Section 8 voucher will pay a portion of the rent, the tenant is responsible for paying the balance. If a tenant does not pay its portion of the rent, the landlord may bring a nonpayment proceeding.
The second path is for the landlord to pursue a holdover case based on the termination or suspension of the Section 8 subsidy. As an example, a tenant may fail to timely or properly recertify their case with NYCHA. In that instance, the landlord will have to investigate with NYCHA whether the subsidy was suspended or terminated and, if so, can commence a holdover proceeding.
A landlord can also commence a holdover proceeding against a Section 8 tenant if the tenant has violated the lease terms and HAP contract. This is probably a more difficult route, and should only be used if absolutely necessary.
Notifying NYCHA of Intent to Evict a Section 8 Tenant
If a landlord is seeking to evict a Section 8 tenant under one of the two stated grounds (nonpayment of tenant’s portion of rent or termination/suspension of Section 8 subsidy), the landlord must involve NYCHA in its case. First, the landlord will have to fill out and serve a Certification of Basis for Eviction before commencing the case. Then, depending on the response from NYCHA, the landlord can commence the eviction case.
NYCHA Certification of Basis for Eviction in Section 8 Eviction Cases
The Certification of Basis for Eviction (“Certification”) is a one page form that a landlord has to prepare and provide to NYCHA that gives them notice of the intent to evict a tenant, and of the landlord’s basis for eviction. If the case is for the tenant’s nonpayment of their portion of the rent, the landlord must clearly indicate the tenant’s monthly share, what months the tenant failed to pay its share, the total amount alleged due, any additional rent that is allowed under the HAP, and the HAP contractual rent amount.
If the certification is based on termination or suspension of the Section 8 subsidy, or an alleged violation of the lease by the tenant, the landlord must explain the basis.
The Certification must be delivered on the tenant and NYCHA no less than twenty-five (25) days than the date an eviction case is commenced. If the certification is mailed to NYCHA, then at least thirty (30) days notice must be provided. The tenant has ten (10) days from the date the Certification is mailed or delivered to respond to NYCHA concerning the allegations.
Within twenty (20) days of receipt of the Certification, NYCHA will issue a written determination of whether it accepts or objects to the landlord’s allegations in the Certification. If NYCHA doesn’t respond or accepts the allegations in the Certification, then the landlord can proceed with the eviction case provided that the landlord serves a copy of the Notice of Petition and Petition on NYCHA by overnight mail. If NYCHA, however, objects to the allegations in the Certification, then the landlord must name NYCHA as a respondent in the eviction case, and serve NYCHA as they would a tenant.
Language that the Petition Must Include
In a case where the Certification was required, particular language and allegations must be included in the Petition, otherwise the case will be dismissed, and the landlord will have to start over. In addition to the usual language found in a Petition (the names of the parties, a specific description of the premises, whether there is a lease, etc.), a petition in a case where the Certification is required will need to include the following statements or include attached documents showing:
- That NYCHA and the tenants were given the landlord’s Certification
- The reason for the eviction proceeding
- NYCHA’s response
- That the grounds in the eviction proceeding are the same as in the Certification
- That the landlord does not seek to recover the subsidy portion of the rent.
Once in court, the same process as described above takes place. The parties will appear for conference with the court attorney to explore settlement. If the case can’t be settled, the case will be adjourned and marked for trial.
The Section 8 housing assistance program can be great for both a landlord and a tenant. For a landlord, it provides the security that rent money will be received. For a tenant, it helps to make housing affordable. Notwithstanding, sometimes disputes arise and a landlord will seek to evict a tenant. Depending on the status of the lease and the HAP, there are different routes a case can travel. At the end of the day, however, in most cases, a landlord will have the right to evict and a tenant will have to move, even if the tenant is receiving Section 8 assistance.
If you would like to learn more about evictions, or need help with an eviction, contact the Law Office of Richard Kistnen, [email protected], or call (718) 738-2324.