Owner Sent Resident Insufficient Recertification Notices

Facts: The sole source of income of a resident of a project-based Section 8 site is public assistance from social services. Her share of the rent amounted to $312 per month as of her last recertification on March 1, 2012.

On Nov. 1, 2012, the owner allegedly personally served her with the first annual recertification notice reminding her of the need to recertify her family income and composition by March 1, 2013. The second recertification notice was served upon the resident on Dec. 1, 2012. The owner served the third annual reminder notice/notice of termination by certified mail on Jan. 2, 2013.

These notices properly warned the resident that her failure to recertify would permit the owner to charge her the full market rent of $1,423 per month, effective March 2013. The owner also served fourth, fifth, and sixth notices as well. Despite all these notices, the resident failed to recertify, and her Section 8 subsidy was terminated. Subsequently, on June 18, 2013, the owner sent the resident a 10-day notice of termination demanding $5,380 in rent arrears, which represented over four months of market rent in the amount of $1,423 per month. No payment was received by the owner, and the resident didn’t move out.

As a result, the owner commenced a nonpayment proceeding to recover rent arrears of $6,803, which accrued following the subsidy termination. The tenant failed to appear on the July 29, 2013, appearance date, and a final judgment was entered in favor of the owner in the sum of $6,803.

The resident’s attorney then asked the court to vacate all judgments entered against the resident because she was unlawfully charged the full contract rent without being properly represented and terminated from the Section 8 program. She argued that the owner’s three recertification reminder notices and 30-day termination notice weren’t properly served upon her, and were deficient in that they didn’t include information required by HUD—specifically, the name and contact information and office hours of the person tasked with recertifying her.

The owner argued that it complied with the HUD Handbook by properly and personally serving all the required notices on time and, indeed, that it went out of its way by serving additional fourth, fifth, and sixth notices upon the resident, which she failed to heed.

Ruling: A New York civil court dismissed the owner’s nonpayment proceeding.

Reasoning: In order to impose penalties on a resident for failing to recertify for her Section 8 subsidy, an owner must provide her with a number of very detailed notices by specific deadlines as mandated by the applicable HUD regulations and Handbook. The regulations define exactly what information must be included in each notice, detailing the annual recertification process for a Section 8 recipient’s eligibility, deadlines, and consequences of failing to recertify. The failure to comply with these notice requirements invalidates any termination of a Section 8 subsidy for failure to recertify, and bars collection of market rent from a tenant in a project-based subsidized unit, thereby requiring dismissal of the proceeding.

The court concluded that although the subsequent three reminder notices properly instructed the resident to mail all required documents for recertification to the owner’s address and state the consequences that would arise from her failure to do so, they all neglected to include some of the information required by the HUD Handbook. Specifically, the notices didn’t (1) state the name of the staff person to contact about scheduling a recertification interview; (2) give the contact information for this person; and (3) give the location, days, and office hours during which the staff person would be available. Furthermore, the third reminder notice, which properly declared that the resident would be charged “market rent,” wasn’t mailed in a timely fashion as it was mailed by certified mail on Jan. 2, 2014, one day late from the required 60-days prior to the recertification date.

• Lambert Houses Redevelopment Co. v. Jobi, May 2014