Phil Querin Q&A: Section 8 Housing: Can It Require Landlord Repairs To The Home?

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July 14, 2015
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question. We have a tenant that rents one of our Studio Apartments, recently she requested to rent one of our mobile homes that just became vacant. She informed us that she was approved for Section 8 and also that there would be an inspection of the Unit.  We would like to know if we would be required to pay for any changes or upgrades due to the result of the inspection.

Answer.  Admittedly, this area of Oregon landlord-tenant law is not my strong suit.  But here is what I understand. For more detail, go to this excellent article by Sybil Hebb, of the Oregon Law Center, here.

 

The Housing Choice Act of 2013 (HB 2639) went into effect on July 1, 2014. While the law says that landlords are not required to accept Section 8 tenants, landlords may not refuse to rent because their source of income is a Section 8 voucher, or any other local, state, or federal housing assistance program. However, an applicant’s (a) past conduct or (b) inability to pay rent, may be taken into consideration, so long as the landlord’s screening protocols are consistent with local, state and federal laws. Landlords must include the value of the applicant’s housing assistance when evaluating their ability to pay rent. See, ORS 659A.421(2)(a)

 

The Section 8 voucher program is a federally program available throughout Oregon. According to Sybil’s article above:

 

“…the program is not achieving its goals: too many tenants struggle to find places where their vouchers will be accepted, and fear of administrative issues causes landlord reluctance to participate. As a result, families have fewer choices and face barriers to success. When vouchers are not accepted, the important public purpose of the housing assistance program is undermined, and the stability of low-income families is threatened. HB 2639 is intended to balance and meet the needs of vulnerable tenants and communities, landlords, and housing authorities.”

 

According to the Fair Housing Counsel of Oregon, “…low-income Oregonians may apply to their local public housing authority or agency for a Section 8 voucher.”  The local housing authority does perform an inspection of the residence. 

 

As for any required repairs, Sybil’s above article includes the following discussion by Jim Straub, Legislative Director for Oregon Rental Housing Association:

 

“Do you have the right to refuse to make repairs without running afoul of the new law? Clearly we are not talking about minor repairs here. If Section 8 requires you to change a broken light bulb or replace a broken switch cover, no reasonable person would see that as a reason to refuse to move forward with the tenancy. Likewise, this isn’t your opportunity to object to the entire law and simply decide ahead of time you aren’t going to make any repairs, then refuse to rent to the otherwise-qualified applicant after the Section 8 inspection. If you did that, the applicant could sue you under the law and, frankly, most any judge will see that as a transparent attempt to use your refusal as a tool for non-participation in the Section 8 process. I’m thinking more of a landlord who, based on Section 8’s exterior paint standards, is asked to repaint their entire property prior to renting to the Section 8 applicant. For some landlords on a budget, especially if we’re talking about pre-1978 paint that requires lead-based paint remediation methods, this Section 8 requirement could be entirely cost prohibitive. What happens then? That’s a good question, and no one really knows the answer right now. What I will say is that if you have an otherwise-qualified Section 8 applicant who you decide NOT to rent to based on a refusal to comply with Section 8’s inspection requirements, be sure you have valid reasons for not making the repairs and moving forward with the tenancy. If you are sued, you will stand in front of a judge and have to justify your decision. If you choose this route, make sure you can defend your reasons for refusing to make the repairs. “I didn’t think I should have to” is probably not going to

 

Probably the biggest thing you want to look for when Section 8 makes inspection repair requirements is whether the recommendation is a habitability issue.[1] You, of course, don’t ever want to refuse to repair a problem that is a habitability concern. Worse, however, would be to have a habitability problem “on the record” for your property that you refuse to repair and then proceed to rent the property to someone else. If injury or damage is caused to those new tenants by the habitability problem, they will be able to make the case that you knew of the problem and rented the property anyway. I can’t think of a faster way to lose a lawsuit than this.”

 

Conclusion.  Here is the take=away from my perspective:  It does not appear that the local Section 8 housing authority will require you to perform repairs that would not otherwise be imposed upon you by Oregon’s habitability requirements. That appears to be the litmus test, according to Mr. Straub.

 

 


[1] Note that Oregon landlord-tenant law specifically identifies specific habitability requirements at ORS 90.320. ~PCQ

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