Mark Busch Article: Section 8 Housing Assistance - Critical Information You Need to Know

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May 2, 2016
Mark Busch
Attorney
Mark Busch P.C.

 

(CAVEAT:  The information below is general in nature and is not intended as legal advice for any particular situation.  This is a complicated area of the law and you should consult with an attorney with regard to a specific case.)

What is Section 8 housing?

Section 8 housing is a government assistance program that awards housing vouchers to certain low-income families to help with housing payments.  The programs are administered through local housing authority organizations, which differ from county to county throughout the state. 

 

Does Section 8 apply to manufactured housing parks?

There have been questions recently from MHCO members as to whether Section 8 housing assistance programs apply to manufactured housing facilities.  The short answer is “yes,” parks are required to comply with Section 8 housing requirements.

Why have things changed?

In 2014, the laws in Oregon changed to prohibit landlords from refusing to rent to people based on their source of income.  Before that, landlords could refuse to rent to tenant applicants if they received government rental assistance.  Now that is unlawful.  Landlords cannot refuse to rent to someone solely because they receive Section 8 rental assistance.  (And there are other government rental assistance programs that are equally protected, although Section 8 is the most common.)

Why does the law apply to manufactured housing facilities?

The governing Oregon statute (ORS 659A.421) prohibits discrimination based on source of income in “real property transactions.”  This is defined to include the rental of “vacant land” used as the location for any building intended for occupancy as a residence (i.e., a manufactured home on a rental space).

How does Section 8 work?

The tenant negotiates directly with the landlord to apply for tenancy, and the landlord is entitled to screen tenants using the same rental criteria used for any other tenant applicant (i.e., criminal background, credit history, evictions, etc.).  However, the tenant’s income level must include the amount received from the Section 8 assistance program.  

If approved, the tenant signs the park’s regular rental agreement and other tenancy documents.  But there are several important differences from a non-Section 8 tenancy:

  1. The park will need to fill out and sign one or two short forms for the tenant to submit to the housing authority confirming that the tenant has been approved for tenancy.

 

  1. The local housing authority will conduct an inspection to ensure that the “rental unit” is sufficiently habitable.  In an apartment setting, this would mean that the landlord would be responsible for ensuring that the apartment is fit to live in.  In a mobile home park, it means that the rental space (not the home itself – unless the park owns it) must simply be suitable for occupancy.  In other words, it must have the usual park-provided utility hook-ups for water, sewer, electricity, etc., and must be designed to support the installation of a mobile home in the usual manner.

 

  1. The housing authority will also make a determination as to whether the park’s rent is a “fair market rent.”  If they determine it is not, the housing voucher payment will not be approved.  While landlords cannot be forced to adjust their rents, they should obviously be very careful to not charge a higher rental amount to Section 8 applicants, which would quickly lead to a housing discrimination charge.

 

  1. The park will be required to sign a “Housing Assistance Payments Contract” which will become an addendum to the park’s regular rental agreement.

What terms are in the “Housing Assistance Payments Contract?”

There are a number of terms, but the most important ones relate to termination of the tenancy.  For the most part, landlords can still terminate a tenancy for “good cause” like any other mobile home park tenant.  This can include disturbing the peaceful enjoyment of neighbors, destruction of park property, failing to maintain the rental space, and the failure to pay rent.

However, there are several potential problem areas:

  1. The contract requires landlords to provide a fixed-term lease of at least one year instead of a month to month rental agreement.  Since ORS 90.550 requires at least a 2-year minimum lease term for mobile home park tenants, that would need to be the stated term of the lease.

 

  1. The contract states that tenancy termination must involve a “serious or repeated violation of the lease.”  This could potentially lead to difficulties if the park needed to issue a 30-day notice for something that was a violation of the park rules, but yet does not rise to the level of a “serious or repeated” violation.

 

  1. All termination notices must be additionally served on the housing authority.  While not a significant issue, it does add another layer of administrative burden.

 

  1. The contract form (which is provided by HUD) is not designed for mobile home park tenancies.  It contains certain terms that would not and could apply to a mobile home park tenancy (i.e., “The lease must specify which appliances are to be provided by the landlord”). For this reason, it would be wise to consult with an attorney before signing the HUD contract form.

What if the park simply refuses to sign the “Housing Assistance Payments Contract?”

If the park refused to sign the contract without good reason, it would likely lead to a housing discrimination charge.  However, in certain situations there might be legitimate legal arguments supporting this position.  Consult with an attorney before making this kind of decision.

How is rent paid?

Voucher amounts for rent are paid directly to the landlord by the local housing authority, with the tenant responsible for the remainder of the rent based on a percentage of their income.   

What if the tenant fails to pay their portion of the rent?

Since the failure to pay rent would be a serious violation of the lease, the park could issue a 72-hour notice just like it would with any other tenant.  A copy of the notice would need to be served on the housing authority as well.  (And consult with an attorney on whether the voucher payment should be returned to avoid taking a partial payment and perhaps raising a waiver issue.)

 

Do these rules apply only to new tenants, or are existing tenants covered too?

The statutes specifically state that a landlord cannot “expel” a tenant based on source of income, so the rules would cover both new and existing tenants.  This means that if an existing tenant came to the park with a Section 8 voucher application packet, the park would most likely need to comply.  Again, however, consult an attorney if there are specific circumstances that might lead to a legitimate legal argument to the contrary.

Where can I get more information?

Do an online search for the local housing authority in your county (i.e., __________ County Housing Authority).  Each housing authority’s website has information specific to the county where your mobile home park is located.

Mark L. Busch

Cornell West, Suite 200, 1500 NW Bethany Blvd

Beaverton, OR 97006

(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

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