T Procedural Defenses to Evictions from Federally Subsidized Housing

Transcription

Procedural Defenses to
Evictions from Federally
Subsidized Housing
By Stephen E. Goldberg
Stephen E. Goldberg
Staff attorney
Legal Services of Northern California
619 North St.
Woodland, CA 95695
530.662.1065 ext. 108
[email protected]
T
he U.S. government assists in providing housing for low-income individuals
through various programs that subsidize private developers and landlords.
These programs include
■ subsidized rents,1
■
federally insured or subsidized mortgages or both,2
funds for housing for seniors and persons with disabilities,3
■ assistance for low-income housing in rural areas,4
■
■
federal tax credits for low-income housing providers,5 and
■
internal revenue service bonds for low-income housing providers.6
The rights of tenants in federally subsidized housing are, at least in part, defined by
federal statutes and regulations. Federal law provides for procedural defenses to
eviction action for tenants in federally subsidized private housing; these defenses are
generally unavailable to tenants in market-rate housing. A body of case law has
developed around these federal protection provisions. Case law is generally supportive of tenants’ rights and of the idea that violations of federal requirements are
defenses to evictions from federally subsidized housing. Procedural defenses can be
powerful tools for attorneys representing tenants who live in federally subsidized
housing. Here I discuss procedural requirements for federally subsidized housing.
1See, e.g., Section 8 new construction and substantial rehabilitation programs, former 42 U.S.C. § 1437f(b)(2) and
Section 8 Moderate Rehabilitation program, and former 42 U.S.C. § 1437f(e)(2)(2004).
2Section 221(d)(3) of the U.S. Housing Act, 12 U.S.C. § 1715(d)(3)(2004); Section 236 of the U.S. Housing Act, 12 U.S.C.
§ 1715z-1(2004).
3Low-income housing for seniors and persons with disabilities was formerly funded under Section 202 of the Housing
Act of 1959, 12 U.S.C. § 1701q. Section 202 was replaced by Section 811 of the National Affordable Housing Act of
1990, 42 U.S.C. § 8013(2004), which provides grants for low-income housing for persons with disabilities.
4Section 515 of the Housing Act of 1949, 42 U.S.C. § 1485 (2004).
526 U.S.C. § 42 (2004).
6Id. § 142 (2004).
Clearinghouse REVIEW Journal of Poverty Law and Policy
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745
Procedural Defenses to Evictions from Federally Subsidized Housing
I.
HUD-Subsidized Housing
In 1976 the U.S. Department of Housing
and Urban Development (HUD) enacted
regulations regarding procedures for termination of tenancy for tenants of HUDsubsidized housing. Before the enactment of federal regulations regarding
evictions from HUD-subsidized housing,
advocates argued that tenants in federally subsidized housing were entitled to
increased procedural protection as compared to tenants in unsubsidized housing
because owners of projects that received
assistance from HUD were state actors
and had to comply with constitutional
due process requirements. These arguments were generally successful in
courts.7 In response to those cases, HUD
issued regulations in 1976 to define due
process requirements for evictions from
HUD-subsidized housing. In 1978
Congress passed a statute requiring leases in certain types of HUD-subsidized
housing to contain provisions prohibiting eviction absent good cause and notice
of the reason for termination of
tenancy.8
The HUD regulations regarding requirements for notice of termination of tenancy are now at 24 C.F.R. § 247.4. HUD
Handbook 4350.3 Section 8-13(B)(2)
mirrors the requirements in the regulation.9 Section 247.4 specifically covers
tenancies in Section 221(d)(3) and (d)(5)
and properties in Section 236 and
Section 202.10 The requirements of 24
C.F.R. § 247.4 also apply to
■ Section 8 new construction,11
Section 8 moderate rehabilitation,12
■ Section 8 for state agencies,13
■
■
Section 8 additional assistance,14
project-based Section 8 vouchers,15
■ the Section 811 program,16 and
■
■
Section 8 for disposition of previously
HUD-owned properties.17
A. Contents of the Notice of
Termination of Tenancy
Section 247.4 requires that the notice of
termination of tenancy state) the date of
termination and—specifically enough to
allow the tenant to prepare a defense—the
reasons for termination; the notice also
must state that the owner may enforce the
termination only by bringing a judicial
action, at which time the tenant can present a defense.18 HUD Handbook 4350.3
contains the same requirements and
adds that the notice must advise that the
tenant has ten days to discuss the termination with the owner.19 Both Section
247.4 and HUD Handbook 4350.3 also
require that the notice of termination be
7See, e.g., Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483 (9th Cir. 1974); Joy v.
Daniels, 479 F.2d 1236 (4th Cir. 1973); McQueen v. Drucker, 438 F.2d 781 (1st Cir. 1971); McClellan v. University Heights,
338 F. Supp.374 (D.R.I. 1972); Appel v. Beyer, 39 Cal. App. 3d Supp. 7 (1974); Bonner v. Park Lane Housing Development
Fund Corporation, 333 N.Y.S.2d 325 (N.Y. S. Ct. 1972). One notable exception is the Section 221(d)(4) program, which
provides mortgage insurance to developers. The Sixth Circuit decided that such complexes were not state actors. Hodges
v. Metts, 676 F.2d 1133 (6th Cir. 1982).
812 U.S.C. § 1715z-1b(b)(3)(2004).
9U.S. Department of Housing and Urban Development (HUD) Handbooks are available online at www.hudclips.org.
1024 C.F.R. § 247.2 (2004).
11Id. § 880.607.
12Id. § 881.601.
13Id. § 883.701.
14Id. § 886.128.
15Id. § 983.206(d).
16Id. § 891.430.
17Id. § 886.328.
18Id. § 247.4(a).
19HUD Handbook 4350.3 § 8-13(B)(2)(c)(4) (2004).
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served both by first-class mail and by nated only for good cause.24 Section
247.4(a) and the HUD Handbook require
personal service or posting.20
that the notice of termination of tenancy
1. The Notice Must State the Date
inform the tenant of that good cause. The
of Termination of Tenancy
regulation says that the notice must “state
Under Section 247.4(a) and the HUD the reasons for the landlord’s action with
Handbook, the notice of termination of enough specificity so as to enable the
tenancy must “[s]tate that the tenancy is tenant to prepare a defense.”25 The reguterminated on a date specified there- lation mandates that “adequate notice
in.”21 As explained by the Rhode Island detailing the grounds for termination” be
Supreme Court, “the federal regulation given to the tenant.26 Moreover, due
… require(s) an explicitly stated date for process requires that a notice of terminatermination of the lease.”22
tion of tenancy from most forms of HUDFor example, a notice which stated the subsidized housing state good cause for
date of mailing of the notice and stated eviction with sufficient specificity to
27
that the notice was a ten-day notice of allow the tenant to prepare a defense.
termination of tenancy was inadequate A notice can fail to meet the specificity
because, while it allowed the tenant to requirement in several ways. Courts roudetermine the date of termination of ten- tinely hold that notices that are written in
ancy by adding ten days to the mailing “vague and conclusory” language and that
date, the tenant “was not informed do not state the factual reasons for termiunequivocally when the exact termina- nation of tenancy are inadequate because
tion would occur.”23 A notice which does they do not give enough information for
not state the exact date of termination of the tenant to prepare a defense.28 A
tenancy does not meet the Section 247.4 notice which only recites lease provisions
requirement.
is inadequate because it does not inform
the tenant of specific factual allega2. The Notice Must State—with
tions.29 Courts have identified several
Sufficient Specificity to Allow
specific pieces of information needed for
the Tenant to Prepare a
the notice to be sufficient to allow the
Defense—the Reasons for
tenant to prepare a defense. The dates
Federal regulations mandate that a ten- and times of the alleged incidents which
ancy in subsidized housing may be termi- constitute good cause for eviction must
2024 C.F.R. § 247.4(b); HUD Handbook 4350.3 § 8-13(B)(3)(a).
2124 C.F.R. § 247.4(a)(1); HUD Handbook 4350.3 § 8-13(B)(2)(c)(1).
22Hedco Limited v. Blanchette, 763 A.2d 639, 643 (R.I. 2000).
23Id. at 642.
2424 C.F.R. § 247.3(a); see id. § 247.2 for properties covered by the good-cause regulation.
25Id. § 247.4(a)(2); HUD Handbook 4350.3 § 8-13(B)(2)(c)(2).
26Moon v. Spring Hill Apartments, 11 S.W.3d 427, 433 (Tex. Ct. App. 2000).
2712 U.S.C 1715z-1b(b)(3)(2004); Joy, 479 F.2d at 1242; Anderson v. Denny, 365 F. Supp. 1254, 1260 (W.D. Va. 1973);
Appel, 39 Cal. App. 3d Supp. at 18; Moon, 11 S.W.3d at 433; see also Calder v., Durham Housing Authority, 433 F.2d
998 (4th Cir. 1970); Escalara v. New York City Housing Authority, 425 F.2d 853, 862 (2d Cir. 1970) (each determining due
process requirements after finding that public housing tenancy is a property right protected by due process).
28Moon, 11 S.W.3d at 427; Associated Estates Corporation v. Bartell, 492 S.E.2d 841, 846 (Ohio App. 1985); see also
Cuyahoga Metropolitan Housing Authority v. Younger, 639 N.E.2d 1253, 1257 (Ohio App. 1994); Edgecomb v. Housing
Authority of the Town of Vernon, 824 F. Supp. 312, 315 (D. Conn. 1993); Housing Authority of DeKalb County v. Pyrtle,
306 S.E.2d 9,11 (Ga. App. 1983); Housing Authority of the County of King v. Saylors, 578 P.2d 76, 79 (Wash. App. 1978)
(each interpreting similar regulation for public housing).
29Moon, 11 S.W.3d at 427; see also Billington v. Underwood, 613 F.2d 91, 94 (5th Cir. 1980); Edgecomb, 824 F. Supp.
at 312 (each interpreting similar regulation for public housing); Saint Louis Housing Authority v. Thompson, 657 S.W.2d
390 (interpreting lease provision requiring good cause for eviction). However, one court holds that the failure to cite lease
provisions allegedly violated in a notice does not invalidate a notice which otherwise states the good-cause allegation with
sufficient detail. National Corporation for Housing Partnership v. Scott, 1990 WL 751311 (Va. Cir. Ct. 1990).
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be stated in the notice.30 The identity of
the persons involved in the alleged incidents must be included in the notice.31
Failure to include this specific information means that the notice does not meet
either the federal regulatory requirements or due process.
4. The Notice Must State that the
Tenant Has Ten Days to Meet
with the Owner About
In addition to the notice requirements in
Section 247.4, the HUD Handbook
requires that the notice “[a]dvise the
tenant that he/she has 10 days within
3. The Notice Must State that the
which to discuss termination of tenancy
Tenant Has the Right to Present a with the owner.”35 The notice that the
Defense in Court
tenant has a right to a meeting with the
Section 247.4 further requires that the owner may be put in the same document
notice of termination of tenancy “advise as the notice of termination of tenancy.36
the tenant that if he or she remains in the
leased unit on the date specified for ter- Although the ten-day meeting requiremination, the landlord may seek to ment is in the HUD Handbook and not in
enforce the termination only by bringing the HUD regulations, it should be
a judicial action, at which time the tenant enforceable in court. The U.S. Supreme
may present a defense.”32 One court Court decided in 1969 that the HUD
determined that failure to include this Handbooks were enforceable.37 Courts
language in the notice is a “fatal hold that similar meet-and-confer
defect.”33 In another case, a federal court requirements in other housing programs
enjoined the filing of an eviction action are enforceable.38
in state court because the notice of termi5. Tenants Must Be Given Prior
nation of tenancy did not say that the tenNotice Before Termination of
ant had the right to present a defense to
Tenancy for Other Good Cause
the eviction in court.34
Federal regulations allow four reasons for
termination of tenancy: (1) “material
30Swords to Plowshares v. Smith, 294 F. Supp. 2d 1067, 1073 (N.D. Cal. 2002); Moon, 11 S.W.3d at 427; Pheasant Hill
Estates Associates v. Milovich, 33 Pa. D. & C. 4th 74, 78 (Pa. C.P. 1996); Owner’s Management Company v. Stern, 1995
WL 23152, at *2 (Ohio App. 1995); see also Edgecomb, 824 F. Supp. at 312; Younger, 639 N.E.2d at 1257.
31Swords to Plowshares, 294 F. Supp. 2d 1067 (identity of alleged crime victim); Pheasant Hill Estates, 33 Pa. D. & C. 4th
at 78; Edgecomb, 824 F. Supp. at 315 (names of family members who committed alleged acts); Younger, 639 N.E.2d at
1257.
3224 C.F.R. § 247.4(a)(3); HUD Handbook 4350.3 § 8-13(B)(2)(c)(3).
33Church Street South Limited Partnership v. Harding, 1993 WL 560771 (Conn. Super. 1993).
34Leake v. Ellicott Redevelopment Phase II, 470 F. Supp. 600, 602 (W.D.N.Y.1979).
35HUD Handbook 4350.3 § 8-13(B)(2)(c)(4).
36Sandefur Company v. Jones, 458 N.E.2d 390,392–94 (Ohio App. 1982) (interpreting former regulation that governed
Section 8 Moderate Rehabilitation properties, 24 C.F.R. § 881.607); see also Oklahoma City Housing Authority v. Jeffers,
853 P.2d 1277 (Okla. 1993); District of Columbia v. Willis, 612 A.2d 1275 (D.C. App. 1992) (each following HUD guidance regarding similar public housing section that notice of grievance procedure and notice of termination of tenancy
may be in the same document).
37Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268 (1969); see also United States v. Mead Corporation,
533 U.S. 218 (2001) (holding that authoritative statements from federal agency about federal law are entitled to some
deference based on thoroughness of analysis and reasoning); see also Hedco Limited v. Blanchette, 763 A.2d 639, 642
(R.I. 2000) (notice landlord’s compliance with meet-and-confer requirement in HUD Handbook); Green Park Associates v.
Inman, 467 N.Y.S.2d 500, 501 (N.Y. Civ. Ct. 1983) (landlords must comply with HUD Handbook in terminating tenancy
in HUD-subsidized housing).
38Dial v. Star City Housing Authority, 648 S.W.2d 806 (Ark. App. 1983) (public housing); Williams v. Landura Corporation,
1990 WL 2820 (Ark. App. 1990) (rural housing); see also Intown Management Corporation v. Knowling, 1991 WL 204891
(Conn. Super. 1991) (finding that meet-and-confer requirement in former Section 8 substantial rehabilitation regulation
and lease was mandatory but that notice of opportunity to meet and confer could be in notice of termination of tenancy); Henley v. Hawaii Housing Authority, 990 P.2d 1201, 1203 (Haw. App. 1999) (public housing right to reply to notice
of termination of tenancy).
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noncompliance with the rental agreement”; (2) “material failure to carry out
obligations under any state landlord and
tenant act”; (3) criminal activity or alcohol abuse by a “covered person”; and (4)
“other good cause.”39 Terminations of
tenancy for other good cause have the
additional requirements that the landlord must give prior notice that the conduct at issue may constitute a basis for
termination of tenancy in the future.40
Although no reported cases address this
requirement, failure to give the warning
notice required by the federal regulation
should be a defense to an eviction action
based on other good cause.
C. Service of Notice of Termination
of Tenancy
The notice of termination of tenancy in
HUD-subsidized housing must comply
with federally mandated service requirements.41 The federal regulation and the
HUD Handbook require that the notice of
termination of tenancy be both mailed by
first-class mail and served on any adult
answering the door at the leased dwelling
unit or, if no adult responds, by placing the
notice under or through the door, if possible, or else by affixing the notice to the
door.42 The federal notice regulation is
mandatory.43
Courts find that the federal service regulation is violated if either of the two mandated components of service is not met.
In Fairborn Apartments v. Herman the Ohio
Court of Appeals found that failure to
mail the notice of termination of tenancy
meant that service of the notice was not
effective despite the notice having been
personally served.44 In Leake v. Ellicott
Redevelopment Phase II a federal judge
enjoined the filing of an eviction in state
court because the notice of termination
of tenancy was mailed but not personally
served or posted.45
D. State-Law Requirements for
Notice of Termination of Tenancy
When state law contains requirements
for notice of termination of tenancy
beyond the federal requirements for
HUD-subsidized housing, the notice
must comply with both the federal and
state-law mandates. Section 247.6(c) and
HUD Handbook 4350.3 § 8-13(B)(5)(d)
state that “[a] tenant may rely on State or
local law governing eviction procedures
where such law provides the tenant procedural rights which are in addition to
those provided by this subpart….”46
Cases indicate several ways in which statelaw notice requirements exceed federal
HUD regulations. In each of those cases, the
court holds that landlords must comply
with the federal and state notice requirements. State law may exceed the federal
notice requirement regarding the duration
of the notice. For example, state law may
require a longer period for notice of termination of tenancy than mandated by federal
regulation. In cases where tenancy is being
terminated for other good cause, 24 C.F.R. §
247.4(c) authorizes termination of tenancy
with a minimum thirty days’ notice. If state
law authorizes a longer period of notice of
39A “covered person” is a “tenant, household member, or guest, and any such activity engaged in on the premises by
any other person under the tenant’s control.” 24 C.F.R. § 5.858 (2004).
40Id. § 247.3(a)–(b).
41Id. § 247.4(a)(4); HUD Handbook 4350.3 § 8-13(B)(2)(c)(5).
4224 C.F.R. § 247.4(b); HUD Handbook 4350.3 § 8-13(B)(3).
43Swords to Plowshares, 294 F. Supp. 2d at 1071.
44Fairborn Apartments v. Herman, 1991 WL 10962, at *5 (Ohio App. 1991).
45Leake v. Ellicott Redevelopment Phase II, 470 F. Supp. 600, 602 (W.D.N.Y.1979).
46The regulation and Handbook continue that federal law governs when 24 C.F.R. Part 246 expressly preempts state law.
Nothing in Part 246 expressly preempts state law regarding notice of termination of tenancy. Several courts hold that
defenses to evictions which occur in federally subsidized housing and are not implicated by federal regulations are governed by state law. See, e.g., Greene Avenue Associates v. Cardwell, 743 N.Y.S.2d 842, 854 (2002) (waiver and estoppel
defenses in eviction from Section 8 senior housing case governed by state law); Dunbar Housing Authority v. Nesmith,
400 S.E.2d 296, 299 (W. Va. 1990) (waiver defense in public housing eviction governed by state law).
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749
termination of tenancy, the state law
should prevail.47 An example of such a
state-law requirement is the mandate in
California law that tenants who have lived
in the premises for more than one year
are entitled to sixty days’ notice of termination of tenancy.48
A second example of a state-law requirement that exceeds the HUD notice regulation is the New York state requirement
that notice of termination of tenancy
state the section of the lease allegedly
violated as held in Fairway Company v.
Idowu.49
A third situation where state-law notice
requirements may exceed the HUD mandates is when state law requires an
opportunity to cure lease violations
which are curable, as in Housing Authority
of Everett v. Terry.50 Although Everett
involved public housing, the same analysis should apply to subsidized housing.
One other court noted that landlords of
federally subsidized housing must comply with both federal notice mandates
and a state-law cure or quit requirement.51
A state-law “cure or quit” requirement
can protect tenants in many situations.
For example, allegations such as an
unauthorized guest or an unauthorized
pet should be considered curable because
the unauthorized guest or pet can be
removed from the household.
Another situation where a state-law cure
or quit requirement may apply is an allegation of untimely or incomplete reporting of income. Failure to report may be
cured by complete reporting. Moreover,
the term “fraud,” in regulations requiring the permanent termination of housing assistance for “fraudulent” underreporting of income and requiring
repayment for mistakes not involving
fraud, indicates that proof of fraudulent
underreporting of income requires the
same elements of proof as common-law
fraud.52 The landlord must prove fraudulent intent in order to evict; proving a
mistake in reporting is not sufficient.53
Untimely or incomplete reporting should
therefore be considered a mistake that
the tenant can cure.
II. Rural Housing
The largest and most important rural
housing rental program is the Section 515
program operated by the U.S. Department of Agriculture’s Rural Housing
and Community Development Service
(RHCDS), formerly known as Farmers
Home Administration.54. RHCDS has
issued guidance called Rural Development
Instructions. Requirements regarding
47Ypsalanti Housing Commission v. O’Day, 618 N.W.2d 18, 23 (Mich. App. 2000) (disallowing seven-day notice under
section of public housing statute allowing reasonable notice when state law required thirty days’ notice]; Woodrose
Limited Belmont Development Company v. Debolt, 1991 WL 115990 (Ohio. App. 1991) (requiring notice of termination
of tenancy in U.S. Department of Agriculture’s Rural Housing and Community Development Service property to meet
duration requirement in state law].
48CAL. CIV. PROC. CODE § 1161 (West 2004).
49Fairview Company v. Idowu, 559 N.Y.S.2d 925 (N.Y. Civ. Ct. 1990) (held that, although that requirement derives from
case law and is not in the HUD regulation, a New York court had held that, under 24 C.F.R. § 247.6(c), a landlord of HUDsubsidized housing must comply with the additional state-law requirement).
50See, e.g., CAL. CIV. PROC. CODE §. 1161(3) (West 2004); WASH. REV. CODE § 59.12.030(4) (2004); OR. REV. STAT.
§ 90.410(1)(a)(2004); Housing Authority of the City of Everett v. Terry, 789 P.2d 745 (Wash. 1990) (the Washington
Supreme Court determined that the Washington state-law requirement that tenants be given the opportunity to cure curable lease violations was not preempted by state law).
51Kendall v. Daggett, 911 P.2d 971, 972 n.1 (Or. App. 1996).
52Powell v. District of Columbia Housing Authority, 818 A.2d 188, 195 (D.C. App. 2003); HUD Handbook § 8-17(E)(3);
see also Greene Avenue Associates, 743 N.Y.S.2d at 852, 856–58. The elements of common-law fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. See, e.g., Small
v. Fritz Companies, 30 Cal. 4th 167, 173 (2003).
53Powell, 818 A.2d at 195; see also In re Sweeney, 215 B.R. 97, 104 (E.D. Pa. 1997); Ellis v. Ritchie, 803 F. Supp. 1097
(E.D. Pa. 1997).
54Section 515 of the Housing Act of 1949, 42 U.S.C. § 1985.
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notice of termination of tenancy are at RD
Instruction 1930-C, Exhibit B, Paragraph
XIV. The RD instructions are identical to
the regulations.
The RHCDS regulation and RD instructions mandate that the notice of lease
violation (1) “[r]efer to the relevant provisions in the lease or occupancy agreement”; (2) “[s]tate the violation (of the
lease) with enough information describing the nature and frequency of the problem to enable the tenant or member to
understand and correct the problem”; (3)
[s]tate that the tenant or member will be
expected to correct the lease or occupancy agreement violation by a specified
date; (4) “[s]tate that the tenant or member may informally meet with the borrower or borrower representative to
attempt to resolve the stated violation
before the date of corrective action specified in the notice”; and (5) “[a]dvise the
tenant or member that if he or she has
not corrected the stated violation by the
date specified, the borrower may seek to
terminate the lease or occupancy agreement by bringing forth a judicial action,
at which time the tenant or member may
present a defense.”55
The notice of termination of tenancy must
include the location and regular office
hours during which the tenant or the tenant’s attorney may view and copy the tenant’s file.56 The notice of termination of
tenancy must state the reason and basis for
termination of tenancy.57 The landlord
must also serve the notice of termination of
tenancy on the local RHCDS servicing
office.58 In states where the notice of lease
violation and the notice of termination of
tenancy can be combined, the single notice
must meet the federal requirements for
both notice of lease violation and notice of
termination of tenancy.59
In general, courts ask landlords to comply with the RHCDS requirements as a
precondition of lawful termination of
tenancy. Two cases, Majors v. Green
Meadows Apartments Ltd. and HoglundHall v. Kleinschmidt, determined that the
landlords must comply with federal
notice requirements.60 However, only
one case has addressed a specific federal
notice requirement for RHCDS housing.
That case, Williams v. Landura Corp.,
addresses the former requirement that a
grievance hearing regarding allegations
in the notice of termination of tenancy be
held upon request.61
While the case law is limited regarding
the specific RHCDS requirements, several of the requirements for RHCDS
notices regarding HUD-subsidized
housing are similar to the requirements
for HUD-subsidized housing. The case
law regarding those requirements should
be equally applicable to Section 515
housing.62
RHCDS regulation requires that the
notice of termination of tenancy for
Section 515 housing state the lease provision allegedly violated and that the tenant
be given the opportunity to cure alleged
lease violations before termination of
tenancy.63 These regulations should also
be enforceable in an eviction action.
557 C.F.R. pt. 1930, subpt. C, Exhibit B, para. XIV; RD Instruction 1930-C, Exhibit B, para. XIV.
567 C.F.R. pt. 1930, subpt. C, Exhibit B, para. XIV(C)(4); RD Instruction 1930-C, Exhibit B, para. XIV(c)(4); see Henley, 990
P.2d at 1203 (finding notice of termination of tenancy to be defective because it did not include notice of right to review
relevant documents as required by public housing regulations).
577 C.F.R. pt. 1930, subpt. C, Exhibit B, para. XIV(C)(3); RD Instruction 1930-C, Exhibit B, para. XIV(C)(3).
60Majors v. Green Meadows Apartments, 546 F. Supp. 895, 903 (S.D. Ga. 1981); Hoglund-Hall v. Kleinschmidt, 381
N.W.2d 889, 895 (Minn. App. 1986).
61Williams v. Landura Corporation, 1990 WL 2820 (Ark. App.1990); see also former 7 C.F.R. § 1944.555(c).
62See Hedco, 763 A.2d at 639; Moon, 11 S.W.3d at 427; Appel, 39 Cal. App.3d Supp. at 18.
637 C.F.R. pt. 1930, subpt. C, Exhibit B, para. XIV(B)(1)(c); RD Instruction 1930-C, Exhibit B, para. XIV(B)(1)(a)–(c).
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751
As in HUD-subsidized housing, the A. Section 42 Requires Good Cause
for Eviction
notices of lease violation and termination
of tenancy must comply with both federal
Section 42(h)(6)(B)(I) states that, as a
requirements and any additional statecondition of receiving the tax credits, a
law requirements.64
housing provider must execute with the
state tax credit agency an agreement that
III. Federal Low-Income Housing
“prohibits the actions described in subTax Credits
clauses (I) and (II) of subparagraph
In 1986 Congress enacted the Low- (E)(ii).” Section 42(h)(6)(E)(ii)(I) proIncome Housing Tax Credit (LIHTC). The hibits “the eviction or the termination of
program is codified in 26 U.S.C. § 42. The tenancy (other than for good cause) of an
LIHTC is a dollar-for-dollar personal or existing tenant of any low-income
corporate tax credit for a portion of the unit….”
costs of building low-income housing.65 Two cases conclude that these provisions
In general, a project qualifies for the tax mandate that a notice of termination of
credit if a minimum of 20 percent of its tenancy must state good cause for an
units are rented to households with an eviction in LIHTC properties.68
income at or below 50 percent of the area
median income, or a minimum of 40 More recently, the Court of Appeals of
percent of its units are rented to house- Maryland in Carter v. Maryland Management
holds with an income at or below 60 per- Company also concludes that Section
cent of the area median income for a 42(h)(6)(E)(ii) requires good cause for
period of at least fifteen years.66 The tax eviction from properties subsidized with
credits are awarded by state housing federal tax credits.69
credit agencies.67
The Internal Revenue Service (IRS)
There are two arguments why the notice recently decided that evictions from
of termination of tenancy in properties LIHTC properties could be only for good
financed with federal low-income hous- cause. In Revenue Ruling 2004-82 (July
ing tax credits must state good cause for 29, 2004) Answer 5, the IRS states,
eviction: (i) the federal statute 42 U.S.C. “Section 42(h)(b)(B)(I) requires that an
§ 42 requires good cause for eviction, and extended low-income commitment
(ii) projects financed with low-income include a prohibition during the extendhousing tax credits are state actors and ed use period against (1) the eviction or
are therefore required by constitutional the termination of tenancy (other than
due process principles to state good cause for good cause) of an existing tenant of
any low-income unit (no-cause eviction
for eviction.
protection)….”70
647 C.F.R. pt. 1930, subpt. C, Exhibit B, para. XIV(C)(1); RD Instruction 1930-C, Exhibit B, para. XIV(C)(1); Woodrose
Limited Belmont Development Co. v. Debolt, 1991 WL 115990 (Ohio App. 1991).
6526 U.S.C. § 42(b).
66Id. § 42(g)(1)–(8).
67Id. §§ 42(m) et seq.
68Cimarron Village Townhomes v. Washington, 1999 WL 538110 (Minn. App. 1999) (the Minnesota Court of Appeals
specifically concluded that the “unambiguous” meaning of Section 42 was that good cause is required for evictions from
properties financed with federal low-income housing tax credits; see also Cimarron Village v. Washington, 659 N.W.2d
811, 815 (Minn. App. 2003). The second Cimarron Village case is a later proceeding between the same parties. The second decision assumes without discussion that the first decision is correct that good cause is required for eviction from
Low-Income Housing Tax Credit (LIHTC) properties and then addresses the standard for good cause for eviction from
LIHTC projects.
69Carter v. Maryland Management Company, 835 A.2d 158, 163–65 (Md. App. 2003).
70INTERNAL REVENUE BULLETIN 2004-35 (Aug. 30, 2004).
752
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Revenue Rulings are “official interpretation[s]” by the IRS.71 As an official interpretation of a federal government agency,
IRS rulings are entitled to at least some
deference.72 Moreover, the legislative
history of 26 U.S.C. § 42(h)(6)(E)(ii)(I)
indicates that Congress intended that
tenants in LIHTC properties be evicted
only for good cause.73 The published
decisions on the issue combined with
Revenue Ruling 2004-82 argue strongly
that tenants in LIHTC properties are
entitled to a termination notice that
states good cause for eviction.
B. State Action
In certain situations, private actors may
be considered state actors bound by constitutional requirements because there is
“such a close nexus between the State and
the challenged action that seemingly private behavior may be fairly treated as that
of the state itself.”74 These situations
include when the private entity is
“entwined with governmental policies or
when government is entwined in its
management or control” and when the
private entity is “delegated a public function by the State.”75 LIHTC projects are
arguably state actors because they are
entwined with the state and because it is
performing a public function.
The only court to address the question
decided that a LIHTC property is a state
actor because such a property is entwined
with the state.76 This conclusion is consistent with other courts which have
examined other types of privately owned
federally subsidized housing.77 In Appel
v. Beyer the court relied on the favorable
tax status afforded to the project, the regulatory agreement with the Federal
Housing Administration, and the tenant
regulations and eligibility requirements.
Each of these factors exists for a tax credit
property. The project owners must sign and
record a regulatory agreement, the project
may accept only low-income households
for subsidized units, and eligibility for tax
credit units must be recertified annually.78
Moreover, participation in the tax credit is
based on distribution of a limited number
of tax credits to those applicants selected on
specified standards by the state tax credit
committee. This state approval further
entwines the government in the operation
of the tax credit project and supports a finding of state action.79
Most important, the LIHTC project receives
favorable tax treatment—a factor relied
upon by several courts in finding that privately owned federally subsidized lowincome housing providers are state
actors.80 Based on this authority and gov-
7126 C.F.R. § 601.601(d)(2) (2004).
72See, e.g., Aeroquip-Vickers Inc. v. Commissioner of Internal Revenue, 347 F.3d 173, 181 (6th Cir. 2003); Omohundro
v. United States, 300 F.3d 1065, 1067–68 (9th Cir. 2002).
73Revenue Ruling 2004-82 (July 29, 2004) Answer 5; Marc Jolin, Good Cause Eviction and the Low Income Housing Tax
Credit, 67 UNIVERSITY OF CHICAGO LAW REVIEW 521, 541–46 (2000).
74Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295 (2001).
75Id. at 295.
76Bowling Green Manor Limited Partnership v. Kirk, 1995 WL 386476 (Ohio App. 1995). In the companion cases, the
Ohio Court of Appeals found that the LIHTC projects at issue were state actors because they had to follow the rent restrictions, follow annual determination of tenant income and annual project certification requirements in Section 42, and
record a restrictive covenant containing the terms of the tax credit program.
77Appel, 39 Cal. App. 3d Supp. at 7 (a California court found that a project financed under Section 221(d)(3) of the
National Housing Act was a state actor because of its interdependent relationship with the government)
78See also Geneva Towers Tenants Organization, 504 F.2d at 487–88 (stating that private providers of federally subsidized
housing are “in a joint undertaking” with the government); Anast v. Commonwealth Apartments, 956 F. Supp. 792, 798
(N.D. Ill. 1997) (mandatory compliance with eligibility and rent restrictions made Section 8 Substantial Rehabilitation project a state actor); Gorsuch Homes v. Wooten, 597 N.E.2d 554, 558 (Ohio App. 1992).
79See Joy, 479 F.2d at 1239.
80Appel, 39 Cal. App. 3d Supp. at 7; see also McClellan v. University Heights, 338 F. Supp. 374, 380 (D.R.I. 1972) (relying on
favorable tax treatment to find that a Section 221(d)(3) project is a state actor); Bonner, 333 N.Y.S.2d at 328 (N.Y. S. Ct. 1972).
■
March–April 2005
753
ernment involvement in the operation of
LIHTC projects, such projects arguably
are entwined with the state and are therefore state actors.
vate housing provider.86 That responsibility for determining who is eligible for
and receives tax credit units makes the
operators of the units state actors.87
Courts consistently hold that the provision of low-income housing as in LIHTC
projects is a government function.81
Several other federal and state courts
agree that the provision of public housing
is a government function; this makes the
private provider a state actor.82
Furthermore, several courts hold that,
when the government assigns to a private
entity the obligation to determine who is
eligible for government benefits, that
private entity is a state actor.83 As one
court explains, “a private entity that has
been assigned the entire responsibility
for a state-created service” is a state
actor.84
A tax credit property having been determined to be a state actor to which due
process requirements apply, the next
question is whether termination of tenancy implicates a property right protected by due process and, if so, what process
is due to protect that property right.88
Courts throughout the United States uniformly hold that a tenancy in government-subsidized low-income housing is
a property right and that tenants in such
housing are entitled to a tenancy termination notice which states good cause for
eviction.
The federal statute requires that the units
financed with federal tax credits be made
available only to eligible low-income
people.85 The responsibility to determine which people actually receive the
benefit of the subsidized units and how
much rent is charged to tenants in the
subsidized units is delegated to the pri-
In order to have a property right for purposes of due process, “a person clearly
must have more than an abstract need or
desire for it. He must have more than a
unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.”89 That government-subsidized low-income housing is such a
property right has been universally
accepted.90
81McQueen v. Drucker, 438 F.2d 781, 784–85 (1st Cir. 1971) (the First Circuit stated that landlords of federally subsidized housing were “helping the state realize its … general goal of providing good quality housing at rents which can be afforded by those
of low and moderate income….”); Appel, 39 Cal. App. 3d Supp. 13 (“[T]he government has chosen to attract the participation
of private persons in carrying out a specific government purpose.”).
82See, e.g., Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919, 924–25 (11th Cir. 1982), cert. denied, 459 U.S. 971
(1982); Christian v. Silver Maples Limited Dividend Housing Associates, 1986 U.S. Dist. LEXIS 27154, at *5 (E.D. Mich. 1986);
Anderson v. Denny, 365 F. Supp.1254, 1259 (W.D. Va. 1973); Belvoir Cliffs Apartments v. Bembry, 383 N.E.2d 1170, 1176 (Ohio
App. 1978); Appel, 39 Cal. App. 3d Supp. at 13. A notable contrary decision is Hodges v. Metts, 676 F.2d 1133 (6th Cir. 1982),
where the Sixth Circuit held that a Section 221(d)(4) property did not perform a public function by providing low-income housing.
83See, e.g., Catanzano v. Dowling, 60 F.3d 113 117–19 (2d Cir. 1995) (finding that a private entity which determines eligibility
for Medicare home health services is a state actor); Kramer v. Heckler, 737 F.2d 214, 218 (2d Cir. 1984).
84J.K. v. Dillenberg, 836 F. Supp. 694, 699 (D. Ariz. 1993).
8526 U.S.C. § 42(g)(1)–(2) (2004).
8626 C.F.R. § 1.42–.45 (2004) (describing record keeping, income certification, and rent determination requirements to be done
by private landlords and oversight by the state tax credit agency).
87See Lattimore v. Northwest Cooperative Homes Association, 1992 WL 118383, at *7 (D.D.C. 1992), where the court held
that a Section 8 cooperative that made decisions regarding who was eligible for admission into the program and who received
Section 8 benefits was a state actor.
88Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 8–11 (1978).
89Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
90See, e.g., Bowling Green Manor, 1995 WL 386476, at *4–5 (tax credit property); Appel, 39 Cal. App. 3d Supp. at 15–16;
Geneva Towers Tenants Organization, 504 F.2d at 488–91; Joy, 479 F.2d at 1241; Christian, 1986 U.S. Dist. LEXIS 27154, at *9,
*11; but see Gray v. Pierce County Housing Authority, 97 P.3d 26 (Wash. App. 2004) (tenant in housing owned by housing
authority and not federally financed public housing did not have property right in tenancy because lease stated that tenancy
could be terminated with twenty days’ notice and housing authority did not lead tenants to believe they had an expectation of
continued tenancy).
754
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March–April 2005
Tenants have a property right because of
their reasonable expectation to reside in
the tax credit unit for an indefinite period. As explained in Bowling, “the terms of
the restrictive covenant [and] the clear
statutory purpose of providing long[]term low-income housing” mean that
tenants in tax credit projects have a property right protected by due process.91
Moreover, tenants of tax credit projects
are not to be evicted when their income
rises. Instead, if a household’s income
rises to more than 140 percent of the
maximum income for the unit, the next
available unit in the complex is to be
rented to a qualified low-income
family.92 This strongly supports an
expectation of indefinite tenancy.
Tenancy in low-income housing is similar to receiving welfare benefits, which
are unquestionably property rights protected by due process.93 There can be little question that tenancy in a low-income
housing unit financed with federal tax
credits is a property right of the tenant.
Tenancy in a tax credit project having
been established as a property right, what
process is due to such tenants must be
determined. For tax credit units, one
court determined that, because the landlord was “for all intents and purposes, the
private landlord of federally subsidized
public housing,” the landlord must give a
tenancy termination notice stating good
cause for eviction, and the landlord must
prove that good cause at trial.94 Many
other courts agree that, for governmentsubsidized low-income housing, landlords must give such written notices and
prove the good cause at trial.95 The case
law is clear.
IV. Federal Low-Income
Housing Bonds
The IRS issues bonds distributed by
states for production of low-income
housing in addition to tax credits for lowincome housing.96 The federal statute
regarding low-income housing bonds, 26
U.S.C. § 142, does not address procedural protection for tenants, and no available
cases have addressed tenant protection
provisions in properties financed with
low-income housing bonds. Advocates
may argue that such complexes are state
actors. The argument would be similar to
the argument why LIHTC properties are
state actors.97
V. HOME
The federal Home Investment Partnership
Program (HOME) involves funds which
are distributed to states for production of
low-income housing. States then distribute those funds to developers. The federal
statute governing the HOME program
mandates that tenancies from HOME
properties may be only for good cause and
that the notice of termination of tenancy
must state the grounds for termination of
tenancy.98
VI. Other Sources of Good-Cause
Eviction Protection
Other sources can provide for procedural
protection, including good-cause eviction. One is recorded covenants which
accompany some financing sources. For
example, properties that receive federal
low-income housing tax credits must
sign and publicly record a regulatory
agreement with the state tax credit
91 Bowling Green Manor, 1995 WL 386476, at *4–5.
9226 U.S.C. § 42(g)(2)(D)(ii).
93Appel, 39 Cal. App. 3d Supp. at 16; see Goldberg v. Kelly, 397 U.S. 254 (1970).
94Bowling Green Manor, 1995 WL 386476, at *5.
95Appel, 39 Cal. App. 3d Supp. at18; Mitchell v. Poole, 203 Cal. App. 3d Supp. 1, 2–3 (1988); Gallman v. Pierce, 639 F.
Supp. 472, 483–85 (N.D. Cal. 1986); Joy, 479 F. 2d 1236 at 1242; Anderson, 365 F. Supp. at 1260.
9626 U.S.C. § 142(d).
97See Bowling Green Manor, 1995 WL 386476, at 4; Appel, 39 Cal. App. 3d Supp. at 7.
9842 U.S.C. § 12755 (2004).
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755
agency.99 The recorded regulatory
agreement may have tenant protection
provisions beyond those clearly stated in
federal or state law.
a management agreement as a condition
of local financing, and that management
agreement mandated that eviction be
only for good cause.
Some properties receive multiple funding sources. For example, some LIHTC
properties also receive federal HOME
funds.100 In such cases, landlords
should be required to comply with procedures for all funding sources. In practice,
this means that landlords in such properties should follow rules with the most
tenant protection provisions.
Rental agreements for subsidized properties should be thoroughly read to
determine if they create any additional
rights for tenants. At least on occasion,
rental agreements require eviction only
for good cause.
Overall the advocate representing a client
in a subsidized housing case must check
state statutes and regulations, local ordiMoreover, state agencies that distribute nances, and local recorders’ offices to
and oversee certain federal funding exhaust possible sources of tenant prosources, including LIHTC and low- tection measures.
income housing bonds, may have their
own regulations with tenant protection VII. Effect of Notice that Does
provisions.
Not Comply with Subsidized
Some projects may receive funding from
both state and federal programs. This is
particularly true of Section 8 funds for
state housing programs and may be true
for other funding sources. State housing
programs may have additional tenant
protection provisions. For example, two
California state programs, the Rental
Housing Construction Program and the
California Housing Finance Agency, have
detailed notice requirements and give
tenants the opportunity for an administrative hearing prior to termination of
tenancy.101
Local jurisdictions may fund low-income
housing properties to supplement federal or state financing. Local jurisdictions
may require additional tenant protection
provisions as a condition of local funding. These provisions may come from a
number of sources, including local ordinances and recorded covenants. For
example, one local jurisdiction required
Housing Requirements in
Eviction Proceedings
Courts have taken varying approaches in
eviction actions where the notice of termination of tenancy does not comply
with federal notice requirements. In
order to litigate properly such an eviction
action based on notice that does not meet
federal requirements, advocates should
be familiar with the range of possible
responses.
The most tenant-friendly response by
courts is that proper notice that meets
federal mandates is a jurisdictional
requirement for an eviction action.
Courts in at least three states—New York,
New Jersey, and Rhode Island—hold that
notice meeting federal requirements is a
prerequisite for jurisdiction over an
eviction action.102 Notably courts in at
least three jurisdictions determined that
compliance with federal notice requirements was not a jurisdictional require-
9926 U.S.C. § 42(h)(6) (2004).
100See IRS Revenue Ruling 2004-82 Part D for an explanation of some issues surrounding properties that receive both
LIHTC and Home Investment Partnership Program funding.
101See 25 CAL. CODE REGS. tit. 25, § 8307 (West 2004) (Rental Housing Construction Program eviction procedures); CAL.
HEALTH & SAFETY CODE § 51066 (West 2004), 25 CAL. CODE REGS. tit 25, § 11406 (West 2004) (California Housing Finance
Agency).
102Jackson Terrace Association v. Paterson, 589 N.Y.S.2d 141 (N.Y. Dist. Ct. 1992); Central Brooklyn Urban Development
Corp. v. Copeland, 471 N.Y.S.2d 989, 992 (New York); Riverview Towers Associates v. Jones, 817 A.2d 324, 327 (N.J. App.
Div. 2003); Housing Authority of Newark v. Raindrop, 670 A.2d at 1092 (N.J. App. Div. 1996) (New Jersey); Hedco, 763
A. 2d at 643 (Rhode Island).
756
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March–April 2005
ment for an eviction action.103 Other
tenant friendly courts hold that the failure to serve a notice which meets federal
requirements justifies dismissal of the
eviction action.104 A third tenantfriendly response when the notice of termination of tenancy does not meet federal requirements is to enter judgment in
favor of the tenant.105 Besides advocating these tenant-friendly responses
based on federal law, advocates may argue
that state-law requirements mandate
that the tenant win when a notice of termination of tenancy is legally insufficient.106
Despite the additional hurdle for tenants
imposed in these states, other decisions
clarify that certain notice defects are
considered prejudicial. Several decisions
hold that the failure to give notice which
does not contain sufficient information
to allow the tenant to prepare a defense is
not harmless error because that failure
prejudices the tenant’s ability to prepare
and present a defense.109 Two courts
decided that noncompliance with a preeviction grievance procedure was prejudicial and merited judgment for the tenant.110 One case decided that failure to
include that the tenant had the right to
defend an eviction action in court was
Other court responses to tenancy termi- prejudicial and justified judgment for the
nation notices which do not meet federal tenant.111
requirements are less tenant-friendly.
Courts in at least three states— Courts in two other jurisdictions—
Connecticut, Georgia, and Arkansas— Massachusetts and Tennessee—decided
decided that strict compliance with fed- that actual notice of the reasons for tereral requirements was unnecessary and mination of tenancy was sufficient
that tenants must show prejudice to pre- regardless of the contents of the notice of
vail based on the notice defect.107 termination of tenancy.112 The most tenAnother court raised but did not decide ant-hostile court reaction to notice which
the issue of whether notice which did not does not meet federal requirements
meet federal requirements could be comes from South Dakota. The South
harmless error.108
Dakota Supreme Court twice held that the
opportunity to appear and present a
103Pheasant Hill Estates, 33 Pa. D. & C. at 76–77; Fairborn Apartments, 1991 WL 10962, at *5 (Ohio); Waimanalo Village
Residents’ Corporation v. Young, 956 P.2d 1285, 1294–95 (Haw. App. 1998).
104Swords to Plowshares, 294 F. Supp. 2d at 1074 (federal court granting tenant’s motion to dismiss eviction action
regarding HUD-subsidized housing located on federal property); Pheasant Hill Estates, 33 Pa. D. & C 4th at 78 (granting
demurrer); Owner’s Management, 1995 WL 23152, at *2; Cuyahoga Metro Housing Authority, 639 N.E.2d at 1258
(affirming judgment of dismissal).
105Waimanalo Village, 956 P.2d at 363; Fairborn Apartments, 1991 WL 10962, at *5–*6; Hoglund-Hall, 381 N.W.2d at
895–96 (Minnesota); Saint Louis Housing Authority v. Thompson, 756 S.W.2d 390 (Mo. App. 1983) (Missouri); Saylors,
578 P.2d at 79; Appel, 39 Cal. App. 3d Supp. at 16 (California).
106See, e.g., Baugh v. Consumers Associates, 241 Cal. App.2d 672, 674 (1st Dist. 1966) (California case law that notice
of termination of tenancy must strictly comply with legal requirements); Wrenn v. Sutton, 65 Cal. App. 2d Supp. 823, 824
(App. Dep’t Super. Ct. 1944) (complaint that does not allege service of legally sufficient notice is subject to demurrer).
107Jefferson Garden Associates v. Green, 520 A.2d 173, 183 (Conn. 1987), Hill v. Paradise Apartments, 357 S.E.2d 288,
290 (Ga. App. 1987); Henderson v. Colony West Limited, 332 S.E.2d 331, 332–33 (Ga. App. 1985); Smith v. Hendrix, 290
S.E.2d 504, 506–7 (Ga. App. 1982); Lewis v. Housing Authority of Texarcana, 1985 WL 9585, at*1 (Ark. App. 1985).
108Moon, 11 S.W. 3d at 434–35 (Texas).
109Mara v. Brown, 2002 WL 1050034 (Conn. Super. 2002); Konesni v. Catlett, 1995 WL 681541, at *4 (Conn.
Super.1995); see also Moon, 11 S.W. 3d at 434–35 (not deciding whether prejudice from defective notice must be proven
because failure to include sufficient information in the notice to allow tenant to prepare a defense is always prejudicial).
110Glastonberry Housing Authority v. Martinez, 1995 WL 621849, at *2 (failure to allow tenant to inspect file); Dial, 648
S.W.2d at 807–8 (failure to allow tenant meeting with management is prejudicial).
111Church Street South Limited Partnership, 1993 WL 560771, at *2; contra Smith, 290 S.E.2d at 506 (failure to state
that tenant may present a defense in court and to include exact date of termination of tenancy is not prejudicial).
112Spence v. O’Brien, 446 N.E.2d 1070, 1076 (Mass. App. 1983); Dogwood Apartments v. Hall, 1993 WL 38004, at
*3–*4 (Tenn. App. 1993).
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March–April 2005
757
defense at a state court eviction proceed- general state-law principles applicable to
ing was sufficient regardless of the con- any eviction action.114
tents of the notice of termination of ten■ ■ ■
ancy.113
One other distinct situation is when a Tenants in most types of federally subsicourt decides that federal notice require- dized housing have procedural rights
ments are complied with but a greater regarding termination of tenancy beyond
state-law notice requirement is not met. those available to other tenants.
In two cases, courts based its decision on Attorneys can stress these rights in
the effect of the defective notice by using defending evictions from federally subsidized housing.
113Arnold Murray Construction v. Hicks, 621 N.W.2d 171, 176 (S.D. 2001); S.B. Partnership v. Gogue, 562 N.W.2d 754,
758–59 (S.D. 1997).
114Woodrose Limited, 1991 WL 115990, at *2; Fairview Company, 559 N.Y.S.2d at 930.
758
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T Procedural Defenses to Evictions from Federally Subsidized Housing

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