Many managers of HUD properties have learned the hard way that failing to give an absolutely correct notice prior to terminating a resident’s lease can lead to eviction delays. If a pre-termination notice is not done in exact accordance with HUD requirements, it will be deemed defective and the eviction will be voided – no matter what the lease violation was.
Required Elements of Pre-Termination Notice
24 C.F.R. §247.4 specifies the exact requirements of a pre-termination notice.
- The notice must “state the reasons” for termination “with enough specificity so as to enable the tenant to prepare a defense.”
- The notice must also cite the exact provisions of the lease you claim the resident violated.
- Stating the violations themselves is not enough; the specific sections of the lease must also be cited. It should be noted that while the HUD regulation does not state that the lease sections must be cited, court cases have interpreted the law as requiring the owner to specify which provisions of the lease the resident violated. The cited court case that set this precedent is Fairview Co. v. Idowu, 148 Misc. 2d 17, 559 N.Y.S.2d 925 (Civil Ct. Richmond Co. [1990]). While this case is 30 years old, courts still cite it to this day when deciding if owners meet §247.4(2) specificity rules. The reasoning here is that a tenant cannot adequately prepare a defense if they don’t know the exact provisions of the lease they are accused of violating.
A Checklist of HUD Pre-Termination Requirements
- If the owner proposes to terminate a lease, the owner must give the tenant written notice of the proposed termination.
- For tenants with a disability, the notice must be provided in a form assessible to the tenant (e.g., in Braille or audio form for a tenant with a vision impairment).
- When an owner terminates tenancy, written notice must be provided to the tenant and must:
- State the specific date the tenancy will be terminated;
- State the reasons for the action with enough detail to enable the tenant to prepare a defense (including a citation of specific lease provisions);
- Advise the tenant that remaining in the unit on the termination date specified in the notice may result in the owner seeking to enforce the termination in court, at which time the tenant may present a defense;
- Advise the tenant that he/she has ten (10) days within which to discuss termination of tenancy with the owner (note that this is ten calendar days – not ten business days). The ten day period begins on the day that the notice is deemed effective, which for Section 8 properties, is determined in accordance with state and local laws.
- Advise that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process; and
- Be served on the tenant as described below.
- When terminating tenancy for material noncompliance, the time of service of the termination notice must be in accordance with the lease and state law.
- In the case of a tenant’s nonpayment of rent, the notice must include the dollar amount of the balance due on the rent account and the date of such computation.
Manner of Service for Programs Other than Regular Section 8 Properties (i.e., Section 236, Section 221(d)(3) BMIR, Rent Supplement, Section 202/8, Section 202 PAC, Section 202 PRAC, Section 811 PRAC, Section 8 Loan Management Set-Aside, and Section 8 Property Disposition Set-Aside
- The notice must be served by:
- Sending a letter by first class mail, properly stamped and addressed and including a return address, to the tenant at the unit address; and
- Delivering a copy of the notice to any adult person answering the door at the unit. If not adult answers the door, the person serving the notice may place it under or through the door or affix it to the door.
- The date on which the notice is deemed received by the tenant is the later of:
- The date the first class letter is mailed; or
- The date the notice is properly given.
- Service of the notice is deemed effective once the notice has been both mailed and had delivered.
Owners/Agents (O/As) of HUD properties governed under the programs noted above should maintain a checklist of items to include in pre-termination notices and ensure that all required elements are included in every pre-termination notice.