The Housing Choice Voucher Program is the federal government’s major program for assisting low-income tenants, the disabled and the elderly to afford safe and sanitary housing in the private market. This program allows the participants to find their own housing which may include single family homes, townhomes, or apartment communities, but does not currently include other forms of housing options like mobile home parks or RV parks. Participants are free to choose any housing that meets the requirements of the program and are not limited to units located in subsidized housing projects and may even include the residence where they currently reside. The housing provider must agree to accept participate in this program, abide by certain terms and conditions that are part of the HAP contract, accept that voucher which will verify the total amount of rent to be paid, and the housing must meet minimum health and safety standards by passing an inspection.
Section 8 is one of those federally funded programs under which some low-income tenants may receive ongoing rental assistance in the form of housing assistance vouchers that will guarantee payment from Section 8 of a portion of the tenant’s rent for the term of the voucher. That term is typically one year but can be extended indefinitely if the tenant’s household continues to meet the income and other requirements of the program. Some Section 8 housing providers require the lease to be renewed on an annual basis and others allow the voucher to continue on a month-to-month basis.
Available vouchers are fairly limited as compared to the community’s needs and applicants may wait years to obtain one. As of this date, Maricopa County has four (4) open waiting lists for vouchers for Maricopa County and Apache Junction, and five (5) where the waiting list is closed. These waiting lists do not serve Chandler, Glendale, Phoenix, Scottsdale, and Tempe.
Vouchers may also be available through Section 8 programs in other parts of the State. At this time the following waiting lists exist:
Pinal County – waiting list closed
Cochise County – waiting list closed
Glendale Housing Authority – waiting list closed
Tempe Housing Authority – waiting list closed
Douglas Public Housing Authority – waiting list closed
City of Chandler – waiting list closed
Mesa Housing Authority – waiting list closed
Winslow Public Housing Authority – one waiting list open
Flagstaff Housing Authority – one waiting list open
Yuma County – two waiting lists open
Eloy Housing Authority – two waiting lists open
City of Tucson – four waiting lists open
Housing Authority of the City of Yuma – four waiting lists open
After an applicant gets on a waiting list, the applicant may wait several years before he/she can obtain an interview for a voucher, but the applicant is permitted to keep that voucher indefinitely unless it is cancelled by the tenant or by Section 8 based on a decision that the person no longer meets the qualifications to retain the voucher. Voucher holders also have the ability to transfer their vouchers to different jurisdictions, as long as the new jurisdiction has the capacity to pay their rent. Portable vouchers are one way that tenants may find available housing in other cities or even other states if they are willing and able to relocate.
How Section 8 Qualifies Tenants
Once an applicant gets to the top of a waiting list, the person is invited to a Section 8 office for an eligibility interview. If that person does not respond, the next person in line is called until one of the people on the list responds. Many applicants do not respond for a variety of reasons, including the fact that they have changed addresses, moved to a different area, or no longer need a voucher.
When the applicant is interviewed, his/her eligibility for a housing voucher is determined by the Public Housing Agent (“PHA”) based on the total annual gross income and family size. Vouchers are limited to US citizens and specified categories of non-citizens who have eligible immigration status. In general, the household seeking assistance will have an income that does not exceed 50% of the median income for the county or metropolitan area in which the family chooses to live.
By law, a PHA must provide 75% of its voucher to applicants whose incomes do not exceed 30% of the area median income. Median income levels are published by HUD and vary by location. The PHA serving your community can provide you with the income limits for your area and family size.
During the application process, the PHA collects information on family income, assets, and family composition. It then verifies this information with other local agencies, the wage earners’ employer and bank, and then uses the information to determine program eligibility and the amount of the housing assistance payment.
PHAs may also establish local preferences for selecting applicants from their waiting lists. For example, PHAs may give a preference to a family who is (1) homeless or living in substandard housing, (2) paying more than 50% of its income for rent, or (3) involuntarily displaced. There are also vouchers available only to certain categories of tenants, like those who have served in the military. Families who qualify for any such local preferences move ahead of other families on the list who do not qualify for any preference. Each PHA has the discretion to establish local preferences to reflect the housing needs and priorities of its particular community.
What Happens Next
After the PHA qualifies an individual or household, Section 8 gives the person a voucher. At that time the person goes into the community and tries to identify housing that is appropriate for his/her needs. The person will then submit an application to the property where he/she wants to live, and the property will then screen the applicant as it would all other residents for e.g. criminal background, prior housing history, and credit.
HOWEVER: The City of Tucson and the City of Phoenix and the City of Tempe have passed ordinances under which a landlord is NOT allowed to refuse an applicant solely because the applicant has a voucher. Each of the cities have provided some guidance on their interpretation of a landlord’s policy that an applicant must have verifiable income of at least a certain amount (typically 2 to 3 times the monthly rent). That guidance is that the landlord should limit that requirement solely to the amount the tenant’s portion of the monthly amount. HUD recently put out some additional guidance on this issue as part of their guidance on screening applicants and they support this policy. However, because there is no clear rule on this issue, some landlords still require housing choice voucher applicants to verify legal income of at least a minimum amount and that is not tie to simply their portion of the rent.
Typically, persons who receive vouchers are required to identify eligible housing within sixty days. This is sometimes extended for another sixty days for good cause.
Inspections
The Inspection: Assuming that the applicant meets the screening requirements, the parties then notify the PHA of their joint interest in renting a dwelling, and Section 8 then schedules an inspection of the dwelling unit to ensure that it complies with Section 8’s housing quality standards (“HQS”). At various times those inspections be delayed up to sixty (60) days after Section 8 is notified by the parties of their intent to rent. The PHAs have recently attempted to conduct those inspections within a few days after the PHA is notified, but when they actually occur is dependent on the availability of Section 8 inspectors. Once the tenant has been approved, Landlords cannot rent the requested unit to another person while they are waiting for an inspection and Section 8 will not pay the landlord for any wait time while the unit is off the market. There is no clear guidance as to whether a Landlord that currently has a policy that requires any applicant to take possession an available unit within a specific period of time is enforceable on Section 8 tenants.
At the inspection, the inspector will use the checklist provided at https://www.hud.gov/sites/dfiles/OCHCO/documents/52580.PDF to determine whether the property meets Section 8’s HQS criteria. If the inspection fails, then the landlord must repair the identified issues within two weeks and have it reinspected before the applicant can enter into a rental agreement. If the issues cannot be cured within that time, the contract will not be approved, and the tenant cannot move in with Section 8’s assistance.
The major reasons why a unit fails inspection are ungrounded outlets, no utilities (however, this does not mean that a landlord is obligated to include utilities as part of the rent for Section 8 tenants), broken or cracked windows, door and window jambs are damaged or won’t close properly, smoke alarms do not work, damaged flooring/tripping hazards, pest infestations, water leaks and poorly maintained bathrooms. Please note that Section 8 may require the utilities to be on in the name of the Landlord for inspection purposes and there is no clear guidance as to whether the Landlord is required to agree to that policy if they do not normally put those utilities in their name between tenants.
Rent Reasonableness: The inspection department is also responsible for determining “rent reasonableness” for the unit. What rent is reasonable for a particular unit may depend upon the zip code in which the unit is located, the age of the property, the number of bedrooms and the unit location. It will also hinge on the amount of rent that the property charges non-Section 8 residents for the same apartment type and style. Before Section 8 will approve a unit, properties must submit to Section 8 three actual leases that they have entered into with non-Section 8 tenants over the last twelve months and the rent for those units must average the same or higher rent than what is being sought for the specific unit being offered to the voucher holder. The property is NOT required to lower its rent in order to allow a voucher holder to live there. There is currently no clear guidance as to whether the Landlord may redact the tenant identities on the copy of leases provided to that agency.
Entering Into a Lease
The Lease. Section 8 must approve, in advance, the lease between the voucher holder/applicant and the property. That lease must have the same start and ending dates as the HAP i.e. Section 8 contract that the property and Section 8 will enter into at the same time. It is illegal for a landlord to require any special criteria or increased rent that applies only to voucher recipients. There is no clear guidance on whether Section 8 can require the Landlord to change the date of an existing lease if the tenant qualifies for a voucher during the term of an existing lease.
The lease must not contain certain provisions that are prohibited by state or federal law. Those provisions are identified on the voucher and on the Section 8 administrative plan for each Section 8 agency. The lease must include all charges, including any administrative fees, pet fees, storage/garage/parking fees, deposits, etc unless the HAP provider specifically authorizes in writing that the parties may enter into a separate addendum for special charges (note that current Quadel Phoenix appears to be permitting this type of addendum). A landlord is prohibited from entering into any other arrangements with the voucher recipient that has not been fully disclosed and approved by the agency. This means that all sides deals, even if offered by the tenant, are illegal and not enforceable.
Concessions/Holding Deposits/ Security Deposits. If the property is offering rental concessions those concessions must be reported to Section 8 prior to entering into the lease and the HAP contract. If, for example, the property is offering one-month free rent, Section 8 will adjust the monthly rent on the contract to reflect this. Properties cannot give the concession to the tenant without Section 8’s prior approval. If the property requires the applicant to pay a holding deposit or security deposit, the Landlord is not required to waive this policy or allow the tenant to pay it after they move in.
Continuing the Relationship
Initial Contract Payment from Section 8. Section 8 has up to sixty days after entering into the contract to make its first rent payment to the property. If the initial payment is not received within that sixty-day period, the property is entitled, upon written demand, to obtain late fees from Section 8. It is currently unclear whether a landlord’s current policy of requiring all move-in fund to be paid prior to taking possession is enforceable for voucher recipients.
Subsequent Section 8 Rent. Following that initial rent payment, Section 8 is supposed to pay the voucher holder’s rent on the first of every month as long as the voucher holder is under a lease agreement (including a month-to-month tenancy after the initial lease expires).
Late Fees. If Section 8 does not pay this subsequent rent on time, then properties can obtain late fees from Section 8, upon written demand, as long as the delayed rent payments were due to Section 8 error. If Section 8’s late payments are due to issues caused by the voucher holder (such as failure to provide information that Section 8 has requested), some agencies have determined that the property can obtain those late fees from the tenant.
Tenant Lease Violations. The property is required to provide Section 8 with copies of all lease violation notices that it issues to the tenant. This includes notices involving non-payment, material breaches, health and safety notices, material falsifications, and immediate terminations. If the tenant is evicted, Section 8 must be promptly notified. Proof that the notice was emailed is acceptable and should be noted on the violation notice. A voucher recipient is prohibited from altering the makeup of the household without approval by Section 8. This means that a landlord is not allowed to amend the lease to add or remove any leaseholders or occupants without Section 8 approval.
Evictions. Tenants may be evicted for violating the terms of their lease agreements with the landlord, including non-payment of their rent portion. They may not be evicted due to Section 8’s failure to pay its portion of the tenant rent. There are no special notice requirements and no special language required on that 5-day nonpayment notice.
Interim Inspections. A tenant may request an interim inspection at any time and if requested Section 8 will conduct it. If the unit fails any inspection, Section 8 will notify the property in writing of any deficiencies and will give the property thirty days to cure the HQS violation. If the violation is cured before the end of the thirty-day period, the tenant and landlord can sign off on a notice of cure and Section 8 will not need to reinspect. If Section 8 does not receive this sign off before the end of the thirty-day period, then another inspection will occur.
Rent Abatement. If the property fails the second HQS inspection, Section 8 will abate its portion of the rent for the unit until the deficiency is cured and the property will forever lose the rent that has been abated. If an abatement lasts more than 180 days, Section 8 will cancel the contract. This termination does not cancel the lease but the tenant may serve the landlord with a breach notice that may authorize the termination of the lease under state law if those breaches are not cured pursuant to law. During any rent abatement period, the tenant continues to be responsible for paying his/her share of the rent as long as he/she continues to live in the unit; however the landlord may not seek to require the tenant to pay Section 8’s share of the rent during this abatement period.
Lease Renewals. If a property enters into a new lease agreement with a tenant following the expiration of the original lease agreement, then the property must also enter into a new contract with Section 8 for that lease, and the lease renewal and new contract must have the same starting and ending dates and Section 8 must approve any rent increase. Section 8 is not legally responsible for its portion of a tenant’s rent under a lease renewal unless there is also a new contract in place between Section 8 and the landlord. As a reminder, some agencies permit the lease to renew on a month to month basis indefinitely. The renewal process can take months so the Landlord is encouraged to send in any renewal offer to Section 8 at least 90 days prior to the lease ending date.
Month-to-Month Tenancies. If, after the end of the initial lease term, the tenant remains as a month-to-month tenant and Section 8 does not require a new contract and will continue paying the same portion of the tenant rent that it did under the original contract. However, the property may not charge the voucher holder/tenant month-to-month fees during this month-to-month tenancy because doing so constitutes an impermissible rent increase to the tenant that Section 8 has not approved, even if those month-to-month fees are specifically identified in the original lease agreement unless the agency approved of that specific lease term.
Additional Charges to Tenant. If a landlord charges or receives from a tenant anything above the amount that Section 8 has agreed to under its contract with the landlord, Section 8 considers this to be fraud on the part of the landlord (and the tenant, if the tenant pays any additional amount) and Section 8 can refer the matter for criminal or civil prosecution for fraud. This is also grounds for terminating the tenant’s assistance and for banning the property from participating in the Section 8 program.
These impermissible charges may not include charges for optional items such as garage rent, pet rent and pet deposits, and fines for lease violations. Impermissible charges apply only to payments offered or required to fixed amounts identified in the lease such as fixed utility and rent payments as long as the agency agrees and this may require a separate addendum.
Rent Increases/Adjustments. After the initial one-year occupancy Section 8 will consider requests for rent increases or other adjustments. These requests for increased rent must be submitted at least sixty days before the lease ends. The best practice is to submit the requests 90 days before the lease naturally ends, as those requests are frequently lost.
Section 8 is required to approve or disapprove such requests within ten days after they receive all of the information required to evaluate the rent adjustment. If Section 8 approves a rent adjustment that adjustment can be effective the first day of the month after it is approved; however, no adjustment can go into effect without a signed contract amendment between the landlord and Section 8 and a new lease or lease amendment between the landlord and tenant.
There may be times when the tenant’s circumstances change during the term of the lease and Section 8 can perform an interim adjustment. A landlord will be notified of any changes to what portion of the rent Section 8 will pay versus the portion that the tenant is responsible for. That will not modify the total amount of rent that is owed.
Bedbugs. Upon receiving notice that a tenant has bedbugs the landlord must have a licensed pest control company inspect each room of the unit, provide Section 8 with documentation of the inspection results, and arrange for prompt treatment by a licensed pest control company.
The tenant must be provided, in writing, a document with all pre-treatment requirements and is required to fully comply by allowing the treatment and following those instructions. In general, the landlord is responsible for paying for the bedbug treatments unless the tenant has failed to cooperate with the treatment protocol or admits to having brought the bedbugs into the community – even if the lease states that the cost of treatments may be passed along to the tenant.
Mold. Section 8 will inspect if a tenant complains of mold; however no deficiency will be noted unless the inspector personally sees or smells mold. If mold is in the apartment, the property is responsible for eliminating it and eliminating the causes of the mold accumulation, such as water leaks. If Section 8 does not see or smell mold the tenant may arrange for a mold inspection by a private company at the tenant’s expense. If the private company confirms the presence of the mold, the landlord will be responsible for reimbursing the tenant for the inspection costs and remediating the mold.
Changes in Property Ownership/Management. Changes must be reported to Section 8 in writing as soon as possible. If changes are reported on or after the twentieth day of the month, the Section 8 portion of the rent will likely be paid to the former owner and/or management company. If you begin managing a property where there is a voucher in place, it is your responsibility to immediately notify Section 8 and to provide all necessary paperwork to become qualified as a landlord under that program.
Terminating the Relationship
Notifying Section 8. Both the landlord and tenant are required to notify Section 8, in writing, when the tenant submits a Notice to Vacate or the landlord serves the tenant with a Notice of Non-Renewal. Copies of either document must be sent to Section 8. Please note that either party may choose to nonrenew a Section 8 and that no special reason is required by the landlord, as long as the nonrenewal is not retaliatory under ARS 33-1381.
Abandonment. If a tenant abandons the property and Management posts a Notice of Abandonment on the premises, a copy must be sent to Section 8.
Move-Out Statement/Security Deposit Accounting. If the landlord is withholding the tenant’s security deposit after move-out due to damages beyond normal wear and tear, the landlord must provide a copy of that Security Deposit Accounting to Section 8 within fourteen days of the move-out. That Security Deposit Accounting may include an itemization of all damages, associated costs to repair, and photos of the damages. Section 8 is not responsible for these charges but may elect to remove the tenant from the Section 8 program if the tenant damages the unit beyond normal wear and tear.
SUMMARY: These issues can be very confusing and the rules and procedures are subject to not only various interpretations but also periodically change. This guidance document is not to be substituted for legal advice. You are encouraged to discuss your specific situation with an attorney.
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