Transitional Housing Participant Misconduct Act (THPMA)
It’s very common to live in transitional housing after release from prison or jail. As described on PG. 344, transitional housing programs are temporary programs that offer temporary housing and services. They usually have requirements you have to meet before you can move in, and there are usually waitlists. Some transitional housing programs offer services like job training, counseling, GED programs, and computer classes. Some transitional housing programs are intended for people with specific needs such as mental illness, addiction treatment and recovery (see PG. 351), disabilities (PG. 419), or domestic violence support (see PG. 348).
In this section, we explain a special law called the Transitional Housing Participant Misconduct Act (THPMA). Just because you live in transitional housing does NOT mean that the THPMA applies to you, so read carefully!
If a resident and a transitional housing provider have an agreement for that person to live in the housing unit, the transitional housing provider MUST follow California’s formal eviction process in civil court (these cases are called “unlawful detainer” actions under the law). If a transitional housing provider removes you without going through the formal court process, that housing provider could be subject to legal liability. If possible, talk to an lawyer or advocate at a legal aid organization about your rights (see a list of legal aid organizations across California, beginning on PG. 1127).
THE THPMA IS THE EXCEPTION TO THE GENERAL RULE:
The THPMA is a California state law and says owners of transitional housing can evict you more quickly than a normal eviction procedure ONLY IF the following 3 requirements are met:
- You committed “participant misconduct or abuse”;
- You have lived in the transitional housing program for less than 6 months; AND
- You signed a WRITTEN CONTRACT with the transitional housing provider when entering the program that explicitly stated that the THPMA applied, with information about your rights and the procedure for using the THPMA to kick someone out more quickly.
What is a tenant?
A tenant is a person who lives on land or in a property that is rented from a landlord.
ALL of these factors need to be true, and most of the time, they are not, so REMEMBER—generally you have the same rights as a tenant facing eviction, which means usually a transitional housing provider has to go through the court process to evict (remove) you.
Under the THPMA, a transitional housing program is any program designed to assist homeless persons to live independently in permanent housing with all the following components:
- Residency requirements from 30 days to 24 months.
- Provides comprehensive social service programs incl. individualized case mgt. and may include other services such as alcohol/substance abuse counseling, self-improvement training, employment and training, and living skills.
- Provides temporary housing with structured setting and rules participants need to comply with to remain in program.
KEY DEFINITION: “Homeless person” = This law defines a homeless person as an individual or family who lacks a fixed, regular, and adequate place to sleep at night, or lived in any temporary housing, shelter, or institution, which includes sites not ordinarily used or designed for regular sleeping. This definition also covers any person living with the transitional housing program participant.
An operator may use the faster, expedited THPMA restraining order/injunction process only for (1) program misconduct, or (2) abuse, defined below.
- Program misconduct—is an intentional violation of the transitional housing program’s rules and regulations. The intentional violation must “substantially interfere with the orderly operation of the program,” and involve one of the following acts:
- Drunkenness on site;
- Unlawful use or sale of drugs;
- Destruction of property (against the operator, other program participants, employees, or people living within 100 feet of the program site); or
- Violence or threat of violence and harassment (against the operator, other program participants, employees, or people living within 100 feet of the program site).
- Abuse—is intentionally or recklessly causing, or attempting to cause, bodily injury or sexual assault; or placing someone else in reasonable fear of “imminent serious bodily injury” (against yourself, the operator, other program participants, employees, or people living within 100 feet of the program site).
Even in these situations, the transitional housing provider may NOT use the expedited THPMA removal process against a participant in the program for 6 months or more, UNLESS a restraining order (permanent injunction) or temporary restraining order (TRO) is already pending or in force against you. If the operator hasn’t started a THPMA action within 6 months of your participation in the program, then the operator must either (1) go through the form eviction (“unlawful detainer”) court process, and/or (2) use a traditional civil harassment restraining order process to remove you.
If the above requirements are all met, a transitional housing program operator may:
- Use the formal eviction/”unlawful detainer” court process (see the GENERAL RULE on PG. 436—the THPMA gives the transitional housing owner two options for evicting someone); OR
- If program misconduct or abuse: Use the Temporary Restraining Order (TRO)/injunction process under the THPMA.
The TRO process is a 2-step process:
STEP 1: The transitional housing program operator must file an application for an immediate temporary restraining order (TRO) until a hearing can take place. This immediate TRO may include orders that you (the program participant) refrain from misconduct, or it may exclude you from participating and living at the transitional housing program site, and stay at least 200 feet away from the site of abuse (defined above, PG. 437) was alleged.
STEP 2: There is a hearing on permanent injunction—usually within in 5 days of the program operator filing the TRO. For the judge to issue a permanent injunction (permanent restraining order) at the hearing, there must be clear and convincing evidence of program misconduct or abuse by the participant.
These types of orders are defined below:
- Exclusion Order: An exclusion order says that you are not allowed to participate or live at the program site.
- Stay Away Order: A stay away order says that you cannot be within 200 feet of the transitional housing program site or other program sites that it runs.
A transitional housing program operator may only ask for exclusion and stay away orders for “abuse,” NOT for “program misconduct” (defined above on PG. 437). These orders can last for up to 1 year after the hearing, and the operator can ask the court to renew the restraining order after that (NOTE: the operator must ask for an extension of the exclusion or stay away order at least 3 months before the original one expires).
The program operator may also be able to get an immediate exclusion or stay away order from the court in a temporary restraining order (TRO) hearing—but only if it’s an emergency. It can only be considered an emergency if it’s necessary to protect another participant, employee, or person living within 100 feet of the program site from “imminent serious bodily injury.”
Before the hearing, through a TRO, the transitional housing program operator may have you immediately removed from the unit.
After the hearing, the transitional housing program operator may take immediate possession of the unit and consider it “abandoned.” If there are other people living in the unit (for example, your family members), but those other people were not named in the restraining order petition, then the program operator may only remove you, and anyone actually named in the petition. A copy of the order will also be given to the local police.
If you violate the conditions of the restraining order (also called a permanent injunction), the transitional housing program operator may:
- Serve you with a 3-day “notice to quit”—meaning you have 3 days to get you and your belongings out of the transitional housing program; and after the 3 days are up, the operator can start a formal eviction process in court (an “unlawful detainer’ action – learn more about these eviction lawsuits on PG. 398 above).
- File a “contempt” action in court along with a request (called a “petition”) to modify the exiting restraining order to include an exclusion order (EVEN IF the original action was based only on “program misconduct”),
- Finally, if you “willfully disobey” the court’s restraining order, you could be charged and possibly convicted of a criminal misdemeanor.
- Below, we have copied the instructions from the California Courts for someone who is participating in a transitional housing program covered by the THPMA and who receives restraining order papers.
You can download all forms related to the THPMA on the California Superior Court’s website at http://www.courts.ca.gov/forms.htm?filter=TH.
The California Courts have published instructions for people who are facing removal from transitional housing under the THMPA. Those instructions are available on court form TH-210, available online at http://www.courts.ca.gov/documents/th210.pdf, and also copied below for your reference.
1. Legal advice. If you are served with an Order to Show Cause and Temporary Restraining Order ["OSC/TRO"] and a Petition, you should seek legal advice right away. The OSC/TRO should list the name, address, and phone number of the Legal Services Office in the county where the petition is filed. You may be able to get legal services by contacting this office. If you do not have an attorney, you can also call the attorney's referral service of your local bar association for help.
2. Read the Instructions. Whether or not you choose to talk to an attorney, you should read all of these instructions and the other papers you have received.
3. Obey the Order. Read the papers served on you very carefully. The Petition tells you what orders the program opera- tor is asking the court to make. The OSC/TRO tells you when to appear in court and may contain a temporary order telling you that you cannot do certain things. YOU HAVE TO OBEY THE ORDER. IF YOU DO NOT OBEY THE COURT'S ORDERS, CRIMINAL CHARGES MAY BE FILED AGAINST YOU. IF YOU ARE FOUND IN CONTEMPT OF COURT FOR NOT FOLLOWING THE COURT'S ORDERS, THE COURT CAN CHANGE THE ORDERS TO FORCE YOU TO MOVE OUT OF THE PROGRAM'S HOUSING.
4. Review the facts. Read the description of the facts on the Petition very carefully. This is where the program operator tells the judge what he or she thinks happened. If you do not agree with the facts on the petition or you think it would not be fair for the court to grant orders against you, GO TO THE HEARING. The place and time of the hearing are on the first page of the form named "Order to Show Cause and Temporary Restraining Order."
5. Respond to the court. If you want to fight the petition you should file a Participant's Response. YOU DO NOT HAVE TO PAY A FEE TO FILE THIS FORM. A blank copy of the Response should have been given to you with the OSC/TRO. You can also file and serve statements signed by people who have personal knowledge of the facts. These are called "declarations." You can type these declarations on form MC-031 and attach them to your Response. If you do not know how to prepare a declaration, you should see an attorney.
6. Serve a copy on program operator. After you have filed the Participant's Response with the superior court clerk, a copy must be delivered personally or by mail to the program operator or the program operator's attorney.
You cannot serve the program operator yourself. Service may be made by a licensed process server, the sheriff's department, or any person 18 years of age or older, other than you. The person should complete and sign a Proof of Personal Service form. (A blank copy should have been given to you with the OSC/TRO.) You should take the completed form back to the court clerk or bring it with you to the hearing.
7. Extensions. If you need more time to find an attorney or to prepare your Response, you must ask the judge for a continuance (extension) by the hearing date shown on the OSC/TRO.
8. Opposing the Petition. If you wish to fight the lawsuit, you should file a Participant's Response and also go to the hearing. If you have any witnesses, they also must be present. If you do not attend the hearing, the court may make "permanent" orders against you that will last up to one year. If you can't file and serve a Response (or find an attorney who will), SHOW UP AT THE HEARING ANYWAY. At the hearing, explain your difficulties to the judge, and ask to be allowed to tell your side of the case.
See Cal. Civ. Proc. Code § 527.6. ↑