Article | Review of Proposed HOME Changes | Part 2 - Tenant Protections

Series Outline

       Part 1 | Rent Limits and Income Determinations

Part 2 | Tenant Protections

       Part 3 | Other Issues

HUD has released a proposed significant overhaul of the HOME regulation in the Federal Register on May 29, 2024. This series discusses the proposed changes. From the release date in the Federal Register, stakeholders have 60 days to comment. To facilitate consideration of comments, this series of articles highlights matters that will have the greatest impact on operations and compliance at HOME properties. Part 1 can be found HERE.  

The full proposed regulation is HERE.

Part 1 of the series is HERE. 

Tenant Protections and Lease Addendum

HUD’s proposed revisions to the HOME program would provide a robust set of tenant protections that HUD feels is appropriate to the HOME program (§ 92.253). These tenant protections are based on HUD CPD’s review of existing HUD programs and a number of State statutes and local ordinances. For example, these included Virginia, Washington, D.C., California, Texas, and Florida. The Military Housing Privatization Initiative was also reviewed. To implement the new tenant protections, HUD is proposing a requirement that all tenants in HOME-assisted rental housing units or receiving TBRA have a new HOME tenancy addendum appended to their lease. This HOME tenancy addendum would include the current and new tenant protections. Through this proposed rule, HUD CPD would replace the current list of prohibited lease terms with a description of the provisions that HUD will include in the HOME tenancy addendum (§ 92.253(a)(4)).

Many PJs have developed their own lease addendum, while others carefully review leases for HOME compliance. The results are inconsistent and do not support legal compliance as well as the proposal. We support a universal HOME addendum that would consistently meet federal tenant rights and VAWA requirements and not leave the pressure on PJs. As this results in some changes to PJ or owner/agent policies, PJs or owners may consider if they agree or want to propose a different approach. 

Lease Contents

The introductory text clarifies that the protections apply to HOME-assisted rental housing and also Tenant Based Rental Assistance (TBRA). The paragraph also clarifies an existing requirement that the tenant lease be in writing and adds a new requirement that the owner provides the participating jurisdiction a copy of the written lease before it is executed and when it is revised. This new requirement gives the PJ the ability to verify that the owner’s lease includes the HOME tenancy addendum and otherwise complies with the revised tenant protections.

1. The proposed rule would require that a tenant’s lease contain more than one convenient method to communicate directly with the owner or the property management staff, including in person, by telephone, email, or through a web portal. This provision would provide tenants with a reasonable way to contact an owner’s property management staff to request any repairs or maintenance that is necessary for the unit or the common areas of the project. (§ 92.253(a)(1))
2. Similarly, the proposed rule would require that a lease provide the PJ's HOME program contact information so that a tenant can contact the PJ. (§ 92.253(a)(2))
3. The proposed rule maintains the requirement that the Violence Against Women Act (VAWA) lease requirements contained in § 92.359(e) be included in a HOME tenant’s lease. (§ 92.253(a)(3)).
4. The proposed rule would establish the requirement that a HOME tenancy addendum, as further described below, is contained in the lease. (§ 92.253(a)(4))
5. The introductory text to proposed § 92.253(b) would establish that the HOME tenancy addendum shall prevail over any conflicting lease provisions. The introductory text would also explain that the lease, the HOME tenancy addendum, the VAWA addendum, and any addenda required by a Federal or State affordable housing program shall constitute the sole agreement between the owner and the tenant.

Property Physical Conditions

The proposed rule would describe tenant protections surrounding the physical condition of the tenant’s unit and the project. The proposed rule would:

1. require that the the owner maintain the physical condition of the unit and the project according to the PJs ongoing physical condition standards listed elsewhere in the regulation. (§ 92.253(b)(1)(i) and § 92.251(f))
2. establish that an owner shall repair and maintain the unit and the common areas.
3. require that owners, as soon as practicable, provide tenants with expected time frames for maintaining and repairing units. HUD believes that this requirement is necessary to ensure transparent communications regarding when units will be repaired. (§ 92.253(b)(1)(ii)(A))
4. require that owners, as soon as practicable, make repairs and perform maintenance on units and common areas in a professional manner and according to the PJ’s property standards. HUD recognizes that repairs cannot always be performed immediately but clarifies that the owner is still obligated to perform required repairs and to do so as soon as practicable. (§ 92.253(b)(1)(ii)(B))
5. prohibit owners from charging tenants for the costs of addressing normal wear and tear or damage to a unit or common areas other than that caused by the tenant’s negligence, recklessness, or intentional acts. (§ 92.253(b)(1)(ii)(C))
6. require that, when a life-threatening deficiency in the physical condition of the tenant’s unit or project impacts the tenant, the tenant shall be promptly relocated into either a housing unit that is decent, safe, sanitary, and in good repair, or placed into physically suitable lodging until repairs on the tenant’s housing unit or project are completed. HUD anticipates that tenant relocation would only be necessary if repairs could not be completed on the day the life-threatening deficiency is identified, in which case the proposed rule would require that the housing unit or lodging used for tenant relocation be provided at no additional cost to the tenant. This proposed rule is proposed because HUD CPD seeks to prevent HOME tenants from remaining in housing that poses a threat to their physical safety and from being subjected to additional costs as a result of physical housing conditions outside their control. (§ 92.253(b)(1)(iii))
7. require that, where the owner controls the utilities, owners provide tenants with uninterrupted utility service in projects. There would be an exception to the proposed requirement for when utility services are interrupted for a reason that is beyond the control of the owner. HUD is proposing this revision to counteract what it identifies as a disturbing trend of so-called “self-help” evictions where owners use their ability to control utilities in a manner that is detrimental to tenants as a means to compel tenants to terminate their tenancy. In many States this “self-help” eviction practice is already illegal, but, by addressing this issue in the proposed HOME tenancy addendum, the proposed rule would prohibit the practice throughout HOME-assisted rental housing and TBRA. (§ 92.253(b)(1)(iv))

Other Tenant Protections

Foster Family Members | The proposed rule explains that a family has the right to reside with a foster child, foster adult, or live-in aide in the unit. The proposed requirement to allow foster children and adults to reside in a unit with a family is similar to the requirements contained in the Section 8 HCV program. The proposed requirement to allow a live-in aide to reside in a unit with a family is part of the nondiscrimination requirements contained in other parts of the HOME regulation. (§ 92.253(b)(2)(i) and § 92.350)

Exclusive Use and Occupancy | The proposed rule would explain that, except for shared housing arrangements in TBRA, the tenant’s household shall have exclusive use and occupancy of their unit. One of the rights of tenancy is the tenants’ exclusive use of their unit. Similar rights are contained in the HUD Section 8 project-based voucher program tenancy addendum, in the lease requirements for public housing tenants, and in other leases used by servicemembers. (§ 92.253(b)(2)(ii))

Entering a Unit | The proposed rule would set out the permitted situations where an owner may enter a tenant’s unit. (§ 92.253(b)(2)(iii)) The proposed rule would:

1. allow an owner to enter a unit during reasonable hours when the owner is performing routine inspections and maintenance, making repairs to the unit, or showing the unit to prospective tenants. Before the owner may enter the unit under this proposed provision, the owner must give the tenant at least 2 days’ notice, which must include the purpose for entering the unit (§ 92.253(b)(2)(iii)(A)).
2. allow an owner to enter a unit at any time, without advance notice, if the owner reasonably believes that an emergency requires entering the unit. (§ 92.253(b)(2)(iii)(B))
3. require that an owner who enters a unit when the tenant and all adult members of the household are absent from the unit must provide a written statement to the tenant explaining the date, time, and purpose of their entry into the unit. (§ 92.253(b)(2)(iii)(C)) 

We suggest that 2 days' notice is longer than many state laws require, and is not spoken to in some other HUD programs. Owners may want to consider if this is too long in non-emergency cases where time is still of the essence or where diagnosis to determine the status of a matter is urgent. Perhaps the 24 hours often required under state law is sufficient.  

Access to Common Areas | The proposed rule would describe a tenant’s rights to reasonable access and use of the project's common areas. This language is proposed to clarify HUD’s existing policy and explicitly prohibit owners from having separate amenities such as gyms, pools, spas, elevators, rooftop gardens, storage areas, and playrooms that only non-assisted tenants can access or use. (§ 92.253(b)(2)(iv))

Tenant Associations | The proposed rule would enforce tenants' right to organize, create tenant associations, convene meetings, distribute literature, and post information at a project. HUD proposes to add these explicit protections to the HOME program because HUD CPD says that it has found that tenant organizations are especially helpful in providing tenants with representation in addressing community-wide issues and that tenant organizations may provide more of a counterweight to owners of larger projects who are not compliant with lease provisions or HUD requirements. (§ 92.253(b)(2)(v))

Supportive Services | The proposed rule would state that a tenant may not be required to accept supportive services offered at the housing unless the tenant is living in transitional housing and such services are required in connection with that housing. This language is proposed to clarify HUD’s existing policy elsewhere in the regulation. (§ 92.253(b)(2)(vi) and the current § 92.253(b)(9))

Required Notices from the Owner

The proposed rule would describe certain notices that must be provided to a tenant by an owner. (§ 92.253(b)(3)) Specifically, the proposed rule would require:

1. that an owner notify a tenant in writing of the specific grounds for any proposed adverse action by an owner. These can be a variety of different actions, including charging a tenant for tenant-caused damages. This proposed requirement is similar to those of other HUD programs such as HUD’s public housing program. (§ 92.253(b)(3)(i))
2. that a tenant be notified within 5 business days of any changes in ownership to the project, including through a foreclosure. This would also require that owners provide tenants with 30 days’ notice of an impending sale or impending foreclosure of the property. These proposed requirements are similar to requirements contained in a variety of State statutes. Requiring that tenants receive notice of this potential change earlier in the process helps better prepare those tenants for these and other disruptive impacts that occur when there is a change of ownership at a project. Changes in project ownership may lead to more extensive changes in properties, including rehabilitation of units or termination of affordability restrictions. As such, reasonable notification requirements would allow tenants to better prepare for any coming changes to their housing. (§ 92.253(b)(3)(ii))

Legal Rights

The proposed rule clarifies the existing lease prohibition against an owner from instituting a lawsuit against the tenant without providing the tenant with notice. (§ 92.253(b)(3)(iii) and § 92.253(b)(4))

The proposed rule would describe and further specify a tenant’s rights to available legal proceedings and remedies. Most of the proposed provisions of this section reflect tenant protections that already exist in the current HOME rule, which are proposed to be revised for to clarify or for inclusion in the tenancy addendum. The proposed rule would renumber and slightly rephrase (for the purposes of the HOME tenancy addendum) the prohibited lease terms from the current § 92.253(b)(1) - (3) to § 92.253(b)(4)(i) - (iii), respectively. (§ 92.253(b)(4))

Right to Independent Legal Representation | The proposed rule would clarify that a tenant has the right to independent legal representation in any legal proceedings regarding the lease. A tenant is not required to appoint the owner as attorney-in-fact as part of the lease and has the right to independent counsel that can assist the tenant in any dispute relating to their lease, including non-binding arbitration or alternative dispute resolution processes that can precede a civil court proceeding. According to HUD, preliminary studies have demonstrated that when a tenant has representation, a court is less likely to execute a warrant of eviction or enter a decision in favor of the owner. While HUD CPD is not proposing to provide HOME tenants with funds to obtain counsel, given the benefits that counsel can provide, HUD believes it is necessary to clarify that tenants always have the right to independent counsel. (§ 92.253(b)(4)(iv))

Right by Trial by Jury | The proposed rule explains that a tenant may not be required to waive any right to a trial by jury or waive the tenant’s right to appeal or otherwise challenge a court decision in connection with a lease. (§ 92.253(b)(4)(iv)(B) and (C))

Legal Fees Not Automatically Owed | The proposed rule would reframe a current prohibited lease term as a tenant protection. The proposed affirmative tenant protection states that a tenant may only be required through the lease to agree to pay the owner’s attorney’s fees or other legal costs if the tenant loses the court proceeding with the owner. (§ 92.253(b)(4)(v) and § 92.253(b)(8))

Interference or Retaliation | The proposed rule would state that an owner may not unreasonably interfere with the tenant’s comfort, safety, or enjoyment of a rental unit or retaliate against a tenant. The proposed rule would further provide that retaliation includes but is not limited to, an owner’s attempts during a tenant’s lease to recover possession of the housing unit in a way that is not consistent with HUD requirements, decrease the services to be provided to the unit, interfere with a tenant’s rights to privacy under State or local law, harass a household or their lawful guests, or refuse to honor the terms of the lease. (§ 92.253(b)(5)(i)).

The proposed rule continues to describe the rights a tenant may exercise without fear of retaliation by an owner. These rights of tenancy that a tenant may exercise include but are not limited to, a tenant’s rights to report inadequate housing conditions of the housing unit or project to the owner, PJ, code enforcement officials, or HUD; the ability to request enforcement of the lease or any protection guaranteed under 24 CFR part 92; and the ability to request or obtain enforcement of any applicable protections under Federal, State, or local law. HUD has noted that several States have also prohibited retaliation against tenants when the tenant has complained to a governmental agency responsible for code enforcement, made a complaint to or filed a legal action against the owner, organized or has become a member of a tenant's organization, or has testified in a court proceeding against the owner. Moreover, HUD CPD believes that establishing this as a right within the lease itself will assist in addressing situations where owners retaliate against persons with disabilities who request reasonable accommodations in HUD-assisted housing units. (§ 92.253(b)(5)(ii))

Confidential Personal Information | The proposed rule would establish confidentiality requirements to safeguard a tenant or applicant’s personally identifiable information. (§ 92.253(b)(6))

Security Deposits vs. Surety Bonds

Security Deposit Protections | The proposed rule would establish new security deposit requirements for HOME-assisted rental housing and TBRA. Under these requirements, security deposits must be refundable and may be no greater than two months’ rent. The proposed rule would also prohibit the use of surety bonds or security deposit insurance in lieu of (or in addition to) security deposits. Additionally proposed is that if an owner charges any amount against a tenant’s security deposit, the tenant must be provided a list of all items charged against the security deposit and be promptly refunded the remainder of the deposit balance. This proposed change is distinct from the current HOME regulation, which does not require refundable security deposits or that the owner identify the individual charges against a security deposit. This proposed change is consistent with various State statutes and other HUD programs and provides another layer of protection for tenants in HOME-assisted rental housing and with TBRA. (§ 92.253(c))

Surety Bonds Prohibition | HUD reports that some PJs have asked if using surety bonds and security deposit insurance in their TBRA programs is appropriate. Others have requested that HUD CPD provide an interpretation that surety bonds or security deposit insurance constitute a security deposit. In response, HUD CPD investigated the nature of surety bonds and security deposit insurance and determined as a matter of law that they are not security deposits within the meaning of the HOME statute nor are they treated as such under state statutes. Moreover, surety bonds or security deposit insurance may disadvantage tenants without necessarily benefitting landlords. HUD believes that surety bonds, security deposit insurance, and similar instruments disadvantage tenants as the tenant pays the cost of purchasing the bond or insurance instead of a security deposit but does not recoup any of the bond or insurance cost upon vacating the unit. In addition, if there is damage to the unit, the bond issuer or insurer may pursue the tenant to cover any repair costs incurred, negatively affecting the tenant’s credit or forcing the tenant to secure legal counsel. In response to these concerns, the proposed rule would prohibit using HOME funds for surety bonds, security deposit insurance, or similar instruments instead of or in addition to a security deposit in units occupied by TBRA. (§ 92.214(a)(10))

Similarly, the proposed rule would also add language in a new paragraph relating to HOME rental housing to prohibit project owners from charging for surety bonds, security deposit insurance, or similar instruments instead of (or in addition to) a security deposit in units. The proposed rule would also explicitly prohibit project owners from charging fees to inspect units or correct deficiencies in the property condition of units or common areas of the project that were not caused by the tenant. The costs associated with normal wear and tear or damage to a unit or common areas of a project that are not the result of negligence, recklessness, or intentional acts by the tenant, must be paid from project operations and not passed on to the tenant. (§ 92.214(b)(3)(i), § 92.214(b)(3)(iii)), and § 92.252(i))

Prohibited Fees

The proposed rule would add a new paragraph that would detail the fees that owners are permitted to charge tenants. (§ 92.214(b)(4))

Termination of Tenancy

The proposed rule would revise the termination of tenancy provisions for both HOME-assisted rental housing and TBRA. Currently, the rules are silent on what protections apply to termination of tenancy for tenants with tenant-based rental assistance, as tenant-based rental assistance is not subject to the termination of tenancy provisions in the current rule. (§ 92.253(d))

The proposed rule would clarify that an owner may not terminate the tenancy of any tenant or household member or refuse to renew the lease of a tenant except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. HUD CPD is proposing this clarification to the current regulation language in response to questions about situations where an owner wishes to evict individual member of a household, not the entire household. HUD CPD recognizes that other HUD programs are more specific about the requirements that apply when expelling a single member of the household and is proposing these revisions to clarify the termination of tenancy requirements that apply to each household member. (§ 92.253(d)(1)(i))

This better supports VAWA birfucation provisions, and we believe that this is good clarification. 

Good Cause | The proposed rule would provide a more detailed explanation of “good cause” to terminate or refuse to renew a tenancy. (§ 92.253(d)(1)(i)(A)-(D))

The proposed rule would clarify that a tenant’s assets or the type of income or assets the tenant possesses is not good cause to terminate or refuse to renew a tenancy. This was clarified in the preamble to the HOTMA Final Rule. In that rule, HUD CPD stated that “[a] HOME PJ may only terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds for good cause, as defined in § 92.253(c), which does not include having the type of assets or an amount of assets in excess of the limitations in § 5.618.” This is the HOTMA-imposed limitations on several rental assistance programs limiting assets to $100,000, as adjusted, or owning real property suitable for occupancy. Because § 92.253 was not part of the HOTMA Final Rule, HUD CPD  proposes to use this opportunity to codify the requirements. (§ 92.253(d)(1)(i)(A)).

The proposed rule would also describe other bases for other good cause, such as when a tenant creates a documented nuisance under applicable state or local law or when a tenant unreasonably refuses to provide the owner access to the unit to allow the owner to repair the unit. HUD CPD holds that these are reasonable grounds for other good cause in other HUD programs, most notably the Section 8 PBV program, and proposes to align HOME requirements with these other programs. (§ 92.253(d)(1)(i)(B))

The proposed rule would establish that other good cause can also include where an owner must terminate a tenancy to comply with an order by a governmental entity or court that requires the tenant vacate the project or unit or a local ordinance that necessitates vacating the project or unit. In these instances, HUD CPD believes it is reasonable for an owner to terminate a tenancy or refuse to renew a lease. Depending upon the nature of the order, under the proposed rule the owner may still be found to violate other HOME program requirements and their written agreement with the PJ. For instance, if a governmental entity or court order to vacate was caused by the owner’s failure to maintain the property condition, then the owner of the HOME rental housing may still be found in violation of the participating jurisdiction’s ongoing property condition standards. (§ 92.253(d)(1)(i)(C)

The proposed rule would clarify that for an owner to establish good cause for a criminal violation of applicable Federal, state, or local law, there must be a record of conviction for a crime during the tenancy period that has a direct bearing on the tenant’s continued tenancy in the HOME rental housing project. This may include a violation of law that affects the safety of persons or property. The proposed rule would also clarify that an owner shall not use a record of arrest, parole or probation, or current indictment to establish a violation. The proposed rule would further clarify that good cause based on a violation of applicable Federal, state, or local law cannot be based on a violation that occurred before tenancy, a violation that does not have a direct bearing on a tenant’s continued tenancy, or a basis other than a record of conviction. An owner may consider any mitigating circumstances relevant to whether the tenant will commit further violations of the lease or applicable Federal, State, or local law. (§ 92.253(d)(1)(i)(D))

60 Day Notice Required | The proposed rule would require that owners provide 60 days’ notice instead of 30 days’ notice before the termination of tenancy. The Department recognizes that this proposed 60-day notice period extends beyond the 30-day notification requirement for nonpayment of rent recently proposed in the proposed rule entitled 30-Day Notification Requirement. Prior to Termination of Lease for Nonpayment of Rent (“30-Day Notice Rule”). One of the proposed changes in the 30-Day Notice Rule is to amend several program regulations to align HUD programs to require written notification of at least 30 days prior to lease termination resulting from nonpayment of rent. However, the programs with regulations that would be amended under the 30-Day Notice Rule do not have the same minimum 30-day statutory notice period that HOME already has. Moreover, the 30-Day Notice Rule was describing termination of tenancy for a specific ground, nonpayment of rent, and not the HOME statutory considerations, which include good cause, as discussed throughout the proposed HOME rule. Recognizing the challenges of obtaining new affordable housing and to reduce the probability that a tenant will become homeless, the proposed rule increases the required notice period to 60 days. HUD believes that this would provide HOME tenants with sufficient time to locate and secure a new rental unit. This increased notice period above the statutory minimum would also allow tenants additional time to object to or cure violations to reverse the termination. HUD believes that the public interest in avoiding increased homelessness significantly outweighs the risk that this proposed change to increase the notice period would disincentivize developers and owners from participating in the HOME program. (§ 92.253(d)(1)(ii) and (42 U.S.C. 12755(b))

We believe this is a significant disincentive on the private sector side to HOME participation. It is also noted that a greater delay than 30 days also often increases the amount of rent owed, which has long-term consequences on a family's credit and landlord history, decreasing their chances of securing housing, both short- and long-term. We do not believe that increasing the time allowed should be assumed to be in the family's interest, or the owner's. Other HUD programs may see the wisdom in applying provisions similar to the existing statutory HOME 30-day rule, but it does not follow that the HOME regulation should now go beyond the statutory requirement to exceed these programs. Finally, unlike other HUD programs, there is no rental subsidy provided to the owner in many HOME units, or vacancy or damage loss claims available under HOME, to help mitigate owner losses. We suggest that owners/agents and PJs with the interest in mind of both families and owners consider this matter and comment.

Copy of Eviction Notice to the PJ | HUD CPD is proposing to require that owners provide the PJ with a copy of the notice to vacate to assist the PJ with monitoring the HOME units or units with TBRA as well as to help the participating jurisdiction answer any questions it receives from the tenant. (§ 92.253(d)(1)(ii))

Exception for Threats | The proposed rule would provide that the 60-day notice period is not required if the termination of tenancy or refusal to renew is due to a direct threat to the safety of the tenants or employees of the housing or an imminent and serious threat to the property. This proposal would codify already existing protections. Determining whether a person poses a direct threat to the safety of the tenants or employees of the housing, or an imminent and serious threat to the property is a fact-sensitive determination. There can be many different factors that an owner may choose to consider when making that determination, such as the nature of the conduct, the tenant’s past conduct, and the evidence that the owner has in their records. Moreover, even if the proposed 60-day notice period is not required, any termination of tenancy or refusal to renew must comply with HOME nondiscrimination rules. (§ 92.253(d)(1)(ii) and section 235 of Division L of the Consolidated Appropriations Act of 2016, Pub. Law 114–113, which revised section 225(b) of the HOME stature (42 U.S.C. 12755(b))

The proposed rule would clarify that terminating or refusing to renew a tenancy must be per Federal, State, local law, and the requirements of the HOME regulation, including those related to fair housing, nondiscrimination, and VAWA. (§ 92.253(d)(1)(iii))

No "Self-Help" Evictions | The proposed rule would clarify that an owner may not perform a constructive or so-called “self-help” eviction. This is where the owner takes actions such as locking a tenant out of their unit or stopping utility services to a tenant’s unit. These actions are already considered a violation of HUD’s current rules, but the proposed rule provides further clarification that an owner may not create a hostile living environment or refuse to make reasonable accommodations in an attempt to cause a tenant to terminate their tenancy. This proposal is consistent with HUD CPD's policy of prohibiting retaliation, as described above. Additionally, an owner’s refusal to provide a reasonable accommodation per Federal requirements would also constitute a violation of the current HOME nondiscrimination requirements and Federal nondiscrimination requirements under applicable Federal civil rights and fair housing laws. (§ 92.253(d)(1)(v), § 92.253(c), and § 92.350)  

HOME TBRA Terminations | The proposed rule would provide the requirements for terminating or refusing to renew the tenancy of a tenant assisted with TBRA. It would establish a requirement that the PJ must adopt written standards for termination or refusal to renew a tenancy in the TBRA program. HUD CPD believes that codifying this requirement would provide both participating jurisdictions and owners with more definitive requirements on  how to acceptably terminate or refuse to renew a tenancy. To that end, HUD is also proposing to require that the written standards for terminating or refusing to renew a tenancy for a tenant assisted with TBRA be included in the lease or rental assistance contract between the PJ and the tenant. As proposed, the written standards included in the lease or rental assistance contract must provide a good cause standard for terminating or refusing to renew a tenancy. The proposed rule does not modify a PJs discretion to provide TBRA to a tenant to lease a new unit even if an owner has terminated the family’s tenancy or refused to renew the lease. (§ 92.253(d)(2)

The proposed rule would include the standard for termination or refusal to renew a tenancy for good cause for TBRA. This proposed good cause standard includes many of the same types of good cause justifications that are proposed for HOME rental housing, including serious or repeated violation of the terms and conditions of the lease; violation of applicable Federal, State, or local law through a record of conviction of a crime that bears directly on continued tenancy; when a tenant creates a documented nuisance under applicable state or local law or when a tenant unreasonably refuses to provide the owner access to the unit to allow the owner to repair the unit; when an owner must terminate a tenancy to comply with an order issued by a governmental entity or court that requires the tenant vacate the project or unit; or a local ordinance that necessitates vacating the residential real property. (§ 92.253(d)(2)(i)(A)-(F) and § 92.253(d)(1)(i))   

The current rule states that owners of HOME rental housing may not exclude an applicant based on holding a housing choice voucher or certificate. The proposed rule would broaden this to include an applicant with Federal or State tenant-based rental assistance. HUD CPD believes that this proposal is consistent with the intent of the HOME statue and it better enables applicants to utilize their Federal or State TBRA. The proposed rule also revises the language in the current rule to further clarify that projects with preferences or limitations for persons with disabilities must be open to all eligible persons with disabilities. HUD CPD also proposes to further clarify that an owner may advertise the project as offering various supportive services, including a description of the specific supportive services available, which may aid persons with disabilities in determining whether the supportive services may meet their needs. (§ 92.253(e) and § 92.253(e)(3)(ii))

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