Do government-assisted housing programs have to consider mitigating circumstances & evidence of rehabilitation?

Generally, programs are not required to consider mitigating circumstances and evidence of rehabilitation,[1278] but they are encouraged to do so.[1279] Only the Public Housing program—run by your local Public Housing Authority (PHA)—MUST consider mitigating circumstances (that is in cases where the PHA has a criminal record ban in place that is not required by law—see PG. 360 for more information on such bans that are allowed, but not required).[1280]

Good news! THIS GIVES YOU AN OPPORTUNITY TO EXPLAIN THE SITUATION AND PRESENT FACTS IN A WAY THAT WILL PUT YOUR RECORD IN THE BEST POSSIBLE LIGHT—WHICH WILL IMPROVE YOUR CHANCES OF GETTING ACCEPTED.

All PHAs and owners of government-assisted housing are ENCOURAGED to look at the following (and for the Public Housing program, PHAs must look at the following):[1281]

    Every application for housing on a case-by-case basis;
    The seriousness of the offense;
    The time that has passed since the offense;
    The effect that denial of admission would have on the rest of your family;
    The effect that denial of admission would have on the community;
    The extent to which you have taken responsibility for your actions and taken steps to prevent or mitigate bad conduct in the future;
    Evidence of rehabilitation;
    Mitigating circumstances relating to your disability or the disability of any family member; and
    Evidence of your family’s participation or willingness to participate in social services, reentry support, or counseling programs.[1282]
  1. 1278

    24 C.F.R. § 960.203(d); HUD, Public Housing Occupancy Guidebook, ¶¶ 4.6, 4.8, 4.10 (rev. November 2013); see also Lancaster v. Scranton Hous. Auth., 479 F. Supp. 134, 138 (M.D. Pa. 1979), aff’d mem., 620 F.2d 288 (3d Cir. 1980) (applicant has burden of putting forth such evidence).In court cases involving eviction or termination of benefits through the government-assisted housing program, courts have sent cases back for review because of the PHA or landlord’s failure to consider mitigating circumstances. See Hicks v. Dakota Cnty. Comm. Dev. Agency, No. A06-1302, 2007 WL2416872 (Minn. App., Aug. 28, 2007) (“The permissive nature of the [voucher] regulation does not preclude a determination that mitigating circumstances are an important factor that must be considered in a particular case.”); Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467 (2002) (remanding project-based Section 8 eviction case to trial court for a determination of whether landlord properly exercised discretion and considered relevant factors prior to deciding to evict). ↑

  2. 1279

    24 C.F.R. § 982.553. ↑

  3. 1280

    24 C.F.R. § 960.203(d); HUD, Public Housing Occupancy Guidebook, ¶¶ 4.6, 4.8, 4.10 (June 2003); see also Lancaster v. Scranton Hous. Auth., 479 F. Supp. 134, 138 (M.D. Pa. 1979), aff’d mem., 620 F.2d 288 (3d Cir. 1980) (applicant has burden of putting forth such evidence). ↑

  4. 1281

    24 C.F.R. §§ 982.552(c)(2), 5.852; HUD, Occupancy Requirements Of Subsidized Multifamily Housing Programs ¶ 4-7(C)(4) (Rev. November 2013); HUD, Public Housing Occupancy Guidebook, ¶¶ 4.6, 4.8, 4.10 (June 2003); see also One Strike and You’re Out” Screening and Eviction Guidelines for Public Housing Authorities (HAs), PIH 96-16 (HA) (Apr. 12, 1996) 5-6; see also Letter from Mel Martinez, Secretary of HUD, to Public Housing Directors (Apr. 16, 2002), and letter from Michael Liu, Assistant Secretary of HUD to Public Housing Directors (June 9, 2002), both letters are available at http://www.nhlp.org/html/ new/index.htm (in the eviction context HUD has urged PHAs to be guided by “compassion and common sense”). ↑

  5. 1282

    24 C.F.R. § 960.203(d)(ii). This last factor is listed in the context of public housing but could be considered with respect to applications for other federally assisted housing. ↑