HomeMy WebLinkAbout1976-03-09; Housing Authority; Resolution 621
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RESOLUTION NO.62
A RESOLUTION OF THE CITY OF CARLSBAD HOUSING
AUTHORITY AMENDING THE GRIEVANCE HEARING PROCEDURE
OF THE CITY OF CARLSBAD HOUSING AUTHORITY AND
INCORPORATING NEW RULES AND REGULATIONS
BE IT RESOLVED by the City of Carlsbad Housing Authority
as follows:
That the City of Carlsbad Housing Authority does hereby
amend the City of Carlsbad Housing Authority Grievance Procedure,
as approved in Resolution No. 31, to incorporate the rules and
regulations as published in the August 7, 1975 Federal Register,
Chapter VIII, Part 866 Subpart B, titled: Grievance Procedures
and Requirements, a copy of which is attached.
PASSED, APPROVED, AND ADOPTED at a meeting of City of
Carlsbad Housing Authority this ninth day °f March '
1976 / by the following vote to wit:
AYES: easier, Frazee,Lewis, Packard, Skotnicki.
NOES:
ABSENT:
Robert C. Frazee, #hairman
ATTEST:
)
T~
Robert J.Cole^Secretary
[seal)
t?« •*! ' »f
THURSDAY, AUGUST 7, 1975
PART II:
Low Income Housing
LEASE AND GRIEVANCE
PROCEDURES
33402 '
TITLE 24—HOUSING AND URBAN
DEVELOPMENT
CHAPTER VIII—LOW INCOME HOUSING,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
(Docket No. R-75-3441
PART 866—LEASE AND GRIEVANCE
PROCEDURES
Dwelling Leases, Procedures and
Requirements
• On June 19, 1973, a Notice was pub-lished in the FEDERAL REGISTER <38 P.R.
15988-9) stating that a review and evalu-
ation was being made of Circular RHM7465.8. dated February 22. 1971, titled
"Requirements and Recommendations to
be Reflected in Tenant Dwelling Leases
for Low-Rent Public Housing Projects",soliciting comments from interested or-
ganizations and persons, and advising
that at the conclusion of the study pro-posed regulations with proposed changes
would be published in the FEDERAL REG-
ISTER for written comment prior to final
adoption by the Department. On Novem-
ber 6, 1974, a Notice of Proposed Dwell-
ing Leases, Procedures and Requirements
was published in the FEDERAL REGISTER
(39 F.R. 39285) in -accordance with the
June 19, 1973 Notice. More than sixty
comments were received in joint response
to this November 6, 1974 Notice and to
its companion Notice, Grievance Proce-
dures, which was published at the same
time..All comments have received full and
careful consideration. In each of the
many sections of the regulation where
tenant advocates and Public HousingAgencies (PHAs) submitted commentsreflecting diametrically opposed views,
the Department has adopted a provisionwhich, in its opinion, is equitable to both
tenants and the PHAs.
Certain changes were made in the pro-
posed regulation in response to comments
received. Other comments suggestingclianges were considered but were notadopted by the Department. All signifi-cant changes and all significant sug-gested changes which were consideredimt not adopted are discussed below. The
references to the new section numbers
^vjiich have been adopted are followed by
«'parenthetical notation of the sectiori
number of the provision as published
November 6, 1974 for the convenience of
the reader.
1. §866.2 'no prior section number).
In response to comment suggesting that
the time for implementation of the newlease requirements be specifically spelledout, the Department has included this
new'section.
2. 5 8G6.3 <no prior section number).
Some comments from tenant representa-
tives urged that provisions of the lease
be worked out jointly by the PHA andtheir tenants. The suggestion has not
been adopted by the Department, but the
new 5 8GG.3 grants the tenants the right
to \\'ritten comment on the PHA's pro-
posed lease which the PHA is required toconsider prior to formal adoption of thenew lease by the PHA. PHAs arc expected
RULES AND REGULATIONS
to consider all comments submitted to
them pursuant to § 808.3 with care andwith due concern for the Congressional
admonition In the USHAct requiring
sound management practices.
3. §866.4(a> <§410.53<a». This sec-tion, which sets forth the requirements
for Identification of the parties und the
premises, has teen expanded to provide
for the terrn of the lease and to requirespecific identification of the members of
the household who will reside in the
dwelling. Comments received indicated
that some state laws require that *thelease contain a specific term. Other com-
ments pointed out the necessity for iden-
tifying the members of the family ex-
pected to reside in the dwelling in order,
among other things, to enable the PHA
to ascertain family composition for pur-
poses of determining the appropriaterent and size of dwelling.
4. ?866.4<b> (410.53 (b),and <c)).The
section provides for rent, amenities to besupplied without charge by the PHA, spe-
cial charges to be made for excess utility
consumption, repairs and similar mat-
ters, and for incorporation of the pro-
visions of the section into the lease.
In response to comments taking op-
posing views, the Department has deter-
mined to recast the subparagraphs of the
regulation as published and to consoli-
date the provision into a single sub-
paracraph. The regulation as adoptedseparates defintively rent from other
charges. Comment from certain PHAs
endorsed the proposal in the rule as pub-
lished to consolidate special charges andrent because in the qurisdictions in which
these PHAs operate collection of the spe-
cial charges and delinquent rent can be
accomplished in a single action in court.Moreover, these PHAs recited difficulties
in collection of the special charges from
tenants, whether large or small, unless
the charges are specifically made part
of the rent. Even though the regulationseparates special charges from the rer.t,
the Department intends that PHAs con-
tinue to make vigorous efforts to collect
the special charges utilizing the lease and
grievance procedures and the courts. Ad-
ditionally, the retaliation is not intended
to prevent PHAs from collecting both the
special charges and the rent in the same
court action where the jurisdiction per-mits. The Department believes that thispolicy consistent with the Congressionalconcern about increasing operating costs.In response to comments received from
tennnt advocates, the Department wishes
to point out that failure of PHAs to assess
and collect charges for tenant-caused
damage can lead to uncontrolled disre-
spect for the property and ultimately to
.serious deterioration of the living en-
vironment.Comment from some tenant advocates
asserted that any amount or any charge,
reg-.uCJe.ss of its equity, which raises the
total payment to an amount above 25%of family income constitutes a violationof the 25';.'. statutory ceiling rent provi-
sion. The Department's view is that as-
sessment of the special charges, regard-
less of whether the assessment results in
a payment exceeding the 25% ceiling
limitation, does not violate the statute.
The charges for excess consumption of
utilities are consistent with the concern
of Congress, the Executive Brunch andthe country as a whole with the conserva-tion of energy. . ;
The Department has moved the two
optional provisions contained in 5 410.59
from that section to this. Although aornecomments sought to prohibit PHAs from
including these two provisions, which
permit late payment penalties and secu-rity deposits at the option of the PHA,
the Department has determined to retain
them. In PHA formulation of their leases
pursuant to this regulation, it is ex-pected that PHAs will consider tenant
comment pursuant to § 86G.3 concerning
these provisions.
5. §866.4<c> (§410.53(e)). The para-
graph provides for rental redetermina-
tions. Many comments were received con-
cerning this provision, nearly all directedto expansion of its provisions and taking
diametrically opposite positions. The De-
partment has determined to adopt theversion published in November 1974 with
some editorial revision, because it be-
lieves the flexible provision appearing in
the November 1974 publication is desir-
able.
6. S866.4(e)(3) (H10.53(g)(3)). The
paragraph provides for the obligationsof the PHA and the particular clause re-lates to the PHA's responsibility for re-
pair of the premises. As published in
November 1974 tha sentence read "to
"make necessary repairs, alterations andimprovements to the premises necessi-tated by normal wear and tear". The
regulation now reads: "to rrtake neces-
sary repairs to the premises." After con-
sideration of nil comments the Depart-
ment decided upon the new language
because it believes that while the re-sponsibility -of the PHAs is to maintain
the projects in good repair, "alterations
and improvements" will not ordinarily
be required. The limitation as to "normalwear and tear" was deleted because itwas recognized that the responsibility of
the PHA would extend to other types ofdamage, e.g.. caused by tenants or stormdamage. Other provisions of the regula-tion, (68 866.4(b), 866.4(f) (9> and ilO)866.4<h>(2», permit PHAs to collectfrom the tenants the amount of the re-pair charge, including overhead costs,
when the damage or disrepair is tenant-
caused.7. |8G6.4(fM9> (5 410.53th) tlOM and
5 866.4<f)(10) (§ 410.53ih>Ul». The
first subsection provides for the tenant's
obligation to refrain from and cause his
household and puests to refrain from de-
stroying, defacing, damaging or remov-
ing any part of the premises or project.The second and companion section pro-vides for the tenant's obligation to pay
reasonable charges for the repair of the
proje.-t buildings, facilities or common
ureas caused by the tenant, his household
or guests. The regulation publi.-Jiod in'
November 1974 required the tenant to
refnxln from "deliberately or negligently"
destroying, defacing, etc. the project and
RDERAL REGISTER, VOl. 40, NO. 153—THURSDAY, AUGUST 7, 1975
to pay reasonable charges for damages"intentionally or negligently caused" bythe tenant, household or guests. Com-
ments received pointed out the difficulty
PHAs face in establishing the facts con-
cerning the deliberate, intentional or
negligent nature of the acts proscribed.
The Department recognized that part of
the premises, the dwelling unit, is under
the dominion of the tenant, the conse-quences of which must be taken into con-
sideration by hearing officers, hearing
panels or a court, in fixing responsibility.
The Department believes that the latter
consideration should alleviate some of
the concern expressed by PHA comment
concerning the difficulty of proof of thecause of the disrepair. The regulation as
adopted omits reference to the deliberate,
intentional or negligent nature of the
act because it is intended that the ob-
ligation not be restricted solely to such
instances, but is intended to apply to all
tenant caused damage other than ordi-
nary wear and tear.
8. Section 866.4(f) (12) (no prior sec-
tion) . The section provides for the ten-
ant's obligation to refrain from illegal
or other activity which impairs the phys-
ical or social environment of the project.
The Department has added this new pro-
vision in response to comments received
from PHAs and a tenant organization.
The provision is intended principally to
prohibit trafficking in narcotics and
prostitution, but is intended also to in-
clude other illegal activity such as manu-
facture of explosives or illegal possession
of firearms (mentioned in comments re-ceived) and similar matters, as well as
other activities which impair the social
environment .'of housing projects.
9. Section 866.4(h) (§ 410.530)). The
section requires that the lease provide
for the rights of the PHA and the tenant
in the event of defects which are hazard-ous to life, health or safety. The proposedrule published in November 1974 de-
scribed the condition of the dwelling as
"damage rendering the premises unin-
habitable." The regulation as adopted
describes the condition of the dwellingas one containing "defects hazardous tolife, health or safety." The Departmentbelieves that the latter language moreprecisely expresses the original intent of
the subsection as published. In response
to comment the regulation as adopted
also clarifies the Department's original
intent that the alternative accommoda-
tions offered by the PHA must be stand-
ard accommodations.
10. §866.4(i) (§453.<k>). The pro-
vision provides for preoccupancy andpretermination inspections. In fhe
regulation as adopted the Department
has added a provision requiring the ten-
ant or his representative to inspect the
premises prior to occupancy and requir-
ing that the inspection report by the
PHA be signed by both the PHA and the
tenant or the tenant's representative.
The Department has also added a pro-
vision to make clear that the PHA is
not required to make provision for ten-
ant participation in pretermination in-
RULES AND REGULATIONS
spcctions where the tenant vacates with-
out notice to the PHA.
11. §866.4(j) (§410.53(1)). The sub-
section provides for entry of the prem-ises during occupancy. The Department
has added a provision defining reason-
able advance notification to the tenant
and has provided for written notice to
the tenant for necessary entry while
the tenant and all adult members of
the household are absent. Comments re-
ceived indicated doubt that entry for the
purpose of performing extermination
services was included among the reasons
for entry. Extermination services are in-
tended to be included within the term
"routine inspection and maintenance."
Other changes in the subsection are
editorial.12. §866.4(1) (§ 410.53(n». The sub-
section provides for termination of the
lease. In the regulation as adopted the
Department has determined to requirethat the lease may not he terminated
other than for serious or repeated viola-
tions of material terms of the lease or
for other good cause. The Department's
determination was made in full consider-
ation of some comments which recom-
mended expansion of the grounds for
lease termination contained in the No-
vember 1974 Notice and other comments
which recommended that the grounds
contained in the November 1974 Noticebe defined more narrowly. In the De-
partment's view the adopted regulation
reflects an equitable resolution of the
opposing views of tenants and PHAs. Inresponse to the Congressional concernfor prompt eviction procedures and asimilar PHA concern expressed in the
comments, the regulation provides for a
14 day notice in the case of failure to
pay rent. In response to both PHA aridtenant comment expressing concern thattenants who create or maintain a threatto the health or safety of other tenantsor PHA employees be promptly evicted,
the regulation provides for a reasonable-
time notice in such instances. The thirty
day notice has been retained in all othercases.The regulation also omits the require-
ment that the PHA advise the tenant ina private conference of the reason for thetermination: The Department believes
that the provision requiring the PHA
to advise the tenant of his right to makereply to the termination notice is suffi-
cient to permit the tenant to request aprivate conference.13. § 866.5 § (410.55). The section pro-
vides for posting of PHA policies rulesand regulations. The regulation asadopted provides for more extensive dis-tribution of the PHA's policies rules and
regulations. The Department believes
PHAs should'provide thorough, effective
distribution of PHA policies, rules and
regulations so that all tenants may haveknowledge of their content.
14. §86C.4(d) <$410.53<f)). The sec-
tion provides for the tenant's right to use
and occupancy of the dwelling. Com-
ments from tenant advocates criticizedthe requirement that tenants obtain the
consent of the PHA before Including
3310.1
foster children as members of the house-
hold and providing live-in care of a mem-
ber of the tenant family not otherwise
originally Included in the lease. The De-partment has determined to make no
change in the regulation as published.
The provision is included not to restrict
the care of foster children and live-incare arrangements per se, but rather Ui
assure that PHAs are kept notified of
changes in family size in order to provide
for relocating tenants where practicableand avoid overcrowding in violation ofFederal and local laws and regulations.
15. §§86G.4(e) (3), (4;, (5), <6t and
866.4(g) (§§ 410.53(g) and (410.53U)).The provisions relate respectively to thePHA's obligations concerning mainte-
nance and a permissive provision per-
mitting the PHA and the tenant to agreeto maintenance by the tenant. Some ten-
ant advocates objected to the inclusion
of any provision which would permit the
PHA to require the tenant to perform
any service or provide any amenity. TheDepartment has determined to retainthese provisions. Since the beginning of
the public housing program in the later
1930's it has been traditional to permit
tenants and PHAs to agree that certainservices and amenities, mainly in single
family residences, be undertaken by the
tenants and the" tradition has worked to
the satisfaction of both parties. For ex-
ample, tenants have been pleased to beable to treat lawns, shrubs and gardens
as their own. and PHAs have encouraged
this kind of individual responsibility. The
provision is not intended to shift mainte-nance burdens properly the PHA's con-cern to the tenants. Inclusion of the pro-
vision must be made by them in good
faith and in accord with local practice.
Other changes that have been made
are of an editorial or minor technical
nature.
The Secretary has determined that
this amendment does not have a sub-
stantial environmental impact and a
finding of inapplicability is available forpublic inspection in* the office of theRules Docket Clerk, Roam 10245, 451 7thStreet SW., Washington, D.C. 20410, dur-ing regular business hours.Accordingly, Title 24 is amended byadding a new Part 866—Lease and Griev-ance Procedures, Subpart A—DwellingLeases, Procedures and Requirements', to
read as follows:
Subpart A—Dwelling Leases, Procedures andRequirements
866.1 Purpose and Scope.
866.2 Time of Implementation of Lease Pro-
visions.866.3 Tenants' Opportunity for Comment.
866.4 Lease Requirements.
86C.5 Posting of Policies, Rules and Regula-
tions.
8G6.6 Prohibited Lease Provisions.
Authority: Section 8 of the United States
Housing Act of 1937. 42 U.S.C. 1408: Sees
5(b) and,G(c) of the United States HousingAct of K'37, as amended 42 U.SC. 14l!7c nud
1437d; Sec. 20t(b) of the Housing and Com-
munity Development Act of 1974, 42 U.S.C.1437 note; Section 7(d) of the Department.of Housing and Urban Development Act. 42
U.S.C. 3535(d).
FEDERAL REGISTER, VOL. 40, NO. I S3—THURSDAY, AUGUST 7, 197S
Subpart A—Dwelling Leases, Procedures: and Requirements
§ 866.1 Purpose and scope.
The purpose of this Subpart Is to pre-
scribe the provisions that shall be in-
corporated in leases by public housing
agencies (PHAs) for dwelling units as-
sisted under the United States Housing
Act of 1937 in projects owned by or leased
to PHAs and leased or subleased by PHAsto the tenants. This Subpart is appli-
cable to all such dwelling leases entered
into directly by PHAs with tenants, and
is not applicable to section 23 and sec-
tion 10'c) leased housing projects, the
section 23 Housing Assistance Payments
Program, and the. section 8 Housing As-
sistance Payments Program, where the
owners enter into leases directly with the
tenants. This Subpart is not applicable
to the Low-Rent Housing Homeowner-ship Opportunities Program (Turnkey
III), to the Mutual Help Homeownership
Opportunities Program, or to Indian
Tribal Housing Authorities.
§ 866.2 Time of implementation of
lease provisions.
The provisions of this Subpart shall
be adopted by each PHA within six
months from the effective date of these
regulations. After it is adopted the lease
shall be implemented for each tenant
as follows: -
(a) At admission for new tenants;
(b) At the next regularly scheduled
reexamination of income for present
tenants;
(c) Immediately for any tenant so
requesting, whose next regularly sched-
uled reexamination of income is later
than six months after the date of adop-
tion;
(d) At the time of transfer for any
tenant moving from one dwelling unit
in a project to any other dwelling unitin a.project.
§ 8663 Tenants' opportunity for com-
ment.
Each PHA shall provide at least 30
days' written notice to tenants setting
forth the proposed changes in the lease
and providing the tenants an opportu-
nity to present written comments which,
subject to the requirements of this regu-
lation, shall be taken into consideration
by the PHA prior to the formal adoption
of any new lease by the PHA.
§ 866.1 Ix^asc requirements.
A lease shall be entered into between
the PHA and each tenant of a dwelling
unit which shall contain the provisions
described hereinafter.
<a» Identification of parties and prem-
ises. The names of the parties to the
leases and the identification of the prem-
ises leased shall be set forth, including:
(1) The term of the lease and pro-visions for renewal, if any;
(2) The members of the household who
will reside in the unit.
fb) Payments due undi-r the lease. (1)
The lease shall state the amount fixed asrent, specifying the utilities and quanti-
ties thereof and the services and equip-
RULES AND REGULATIONS
ment furnished by the PHA without ad-
ditional cost.
(2) The lease shall provide for charges
to tenants for maintenance and repair
beyond normal wear and tear and for
consumption of excess utilities. The lease
shall state the basis for the determina-
tion of such charges (e.g., by a posted
schedule of charges for repair, amountscharged for utility consumption in excess
of the allowance stated in the lease, etc.).
The imposition of charges for consump-
tion of excess utilities is permissible only
if such charges are determined by an in-
dividual check meter servicing the leased
unit or result from the use of major
tenant-supplied appliances.
(3) At the option of the PHA, the
lease may provide for:
(i) Payment of penalties for late pay-
ments.(ii) Security deposits which shall notexceed one month's rent or such reason-
able fixed amount as may be required
by the PHA. Provision may be made for
gradual accumulation of the security
deposit by the tenant. Subject to ap-
plicable laws, interest earned on security
deposits may be refunded to the te'nant
on vacation of the premises or used for
tenant services or activities.
(4) The lease shall provide thatcharges assessed under paragraph (b)
(2) and (3) of this section shall not be-
come due and collectible prior to the
first day of the second month following
the month ih which the charge is made.
(c) Rent redeterminations. The lease
shall provide for redetermination of
rentals which shall include:
(1) The frequency of regular rental
redetermination and the basis for interim
redetermination;
(2) An agreement by the tenant tofurnish such information and certifica-tions regarding family composition and
income as may be necessary for the PHA
to make determinations with respect to
rent, eligibility, and the appropriateness
of dwelling size;
(3) An agreement by the tenant to
transfer to an appropriate size dwelling
unit based on family composition, upon
appropriate notice by the PHA that such
a dwelling unit is available.
(d) Tenant's right to use and occupy.The lease shall provide that the tenant
shall have the right to exclusive use and
occupancy of the leased premises whichshall include reasonable accommodationof the tenant's guests or visitors and,with the consent of the PHA, may in-clude care of foster children and live-in
care of a member of the tenant's family.
(e) The PHA's obligations: The lease
shall set forth the PHA's obligations un-
der the lease which shall include the
following:
(1) To maintain the premises and the
project in decent, safe und sanitary con-dition;
(2) To comply with requirements of
applicable building codes, housing codes,
and HUD regulations materially affecting
health and safety;
13) To make necessary repairs to the
premises; . •
(4) To keep project buildings, facilitiesand common areas, not otherwise as-signed to the tenant for maintenance and
upkeep, in a clean and safe condition;
(5) To maintain in good and safe
working order and condition electrical,
plumbing, sanitary, heating, ventilating,
and other facilities and appliances, in-
cluding elevators, supplied or required
to be supplied by the PHA;
(6) To provide and maintain appro-
priate receptacles and facilities (except
containers for. the exclusive use of an
individual tenant family) for the deposit
of ashes, garbage, rubbish and other
waste removed from the premises by the
tenant in accordance with paragraph
(f) (7) of this section; and
(7) To supply running water and rea-
sonable amounts of hot water and rea-sonable amounts of heat at appropriate
times of the year (according fb local cus-
tom and usage) except where the build-
Ing that includes the dwelling unit is not
required by law to be equipped for thatpurpose, or where heat or hot water is
generated by an installation within the
exclusive control of the tenant and sup-
plied by a direct utility connection.
<f) Tenant's obligations. The lease
shall provide that the tenant shall beobligated:
(1) Not to assign the lease or to sub-
lease the premises;
(2) Not to provide accommodations
for boarders or lodgers;(3) To use the premises solely as a
private dwelling for the tenant and the
tenant's household as identified in the
lease, and not to use or permit its use
for any other purpose;
(4) To abide by necessary and reason-able regulations promulgated by the PHA
for the benefit and well-being of the
housing project and the tenants which
shall be posted in the project office and
incorporated by reference in the lease;
(5) To comply with all obligations im-
posed upon tenants by applicable pro-
visions of building and housing codesmaterially affecting health and safety;
(6) To keep the premises and suchother areas as may be assigned to himfor his exclusive use in a clean and safe
condition;(7) To dispose of all ashes, garbage,rubbish, and other waste from the prem-ises in a sanitary and safe manner;(8) To use only in a reasonable man-ner all electrical, plumbing, sanitary,heating, ventilating, air-conditioningand other facilities and appurtenancesincluding elevators;(9> To refrain from, and to cause his
household and guests to refrain from
destroying, defacing, damaging, or re-
moving any part of the premises or
project;(10) To pay reasonable charges (other
than for wear and tear) for the repairof damages to the premises, project
buildings, facilities or conjmon areas
caused by-the tenant, hi.s household or
guests;(11> To conduct himself and cause
other persons who nre on the premiseswith his consent to conduct tlu-msolves in
a manner which will not disturb his
KDERAL REGISTER, VOL 40, NO. 153—THURSDAY, AUGUST 7, 1975
Jieichbors' peaceful enjoyment of theiraccommodations and will be conducive tomaintaining the project in a decent, safeand sanitary condition:
<12> To refrain from illegal or other
activity which impairs the physical or
social environment of the project.
<g) Tenant maintenance. The lease
may provide that the tenant may aeroethai, the tenant shall perform seasonal
maintenance or other maintenance tasks,
as permitted by the nature of the designand construction of the dwelling <e.g.single 'family, duplex, row bouse> and
according to local custom, provided that
the agreement, is marie in good faith andnot for the purpose of evading the obliga-tions of the PHA. If such agreement isreached, the lease shall specify the tasks
to be performed by Uie tenant.
<h> Defects hazardous to We, health,or safety. The lease shall set forth the
rights and obligations of the tenant and
the PHA in the event that the premisesare damaged to the extent that condi-
tions are created which -arc hazardous tolife, health, or safety of the occupantsand shall provide that:
<1> The tenant shall immediatelynotify project management of thedamage;
<2) The PHA shall be responsible for
repair, of the unit within a reasonable
time. Provided, that if the damage was'caused by the tenant, tenant's household
or guests, the reasonable cost of the re-
pairs shall be charged to the tenant;
<3) The PHA shall offer standard alter-native accommodations, if available, incircumstances where necessary repairs
cannot be made within a reasonabletime; and
(4) Provisions shall be made for abate-ment of rent in proportion to the serious-
ness of the damage and loss in value as a
dwelling in the event repairs are not
made in accordance with safeparagraph<2> of this paragraph or alternative ac-
commodations not provided in accord-
ance with subparagraph <3> of this para-graph, except that no abatement of rent
shall occur if the tenant rejects the alter-
native accommodation or if the damagewas caused by the tenant, tenant's house-hold or guests.
(i) Pre-cccupancv andpre-termination
inspections. The lease shall provide thatthe PHA and the tenant or his represent-
ative shall be obligated to inspect the
premises prior to commencement of oc-cupancy by the tenant. The FHA will fur-nish the tenant with a written statement
of the condition of the premises, the
dwelling unit, and the equipment pro-vided with the unit. The statement shallbe signed by the PHA and the tenant,
and a copy of the statement shall be re-
tained by the PHA in the tenant's folder.The PHA shall be further obligated to in-spect the unit at the time the tenant
vacates the unit and to furnish the
tenant a statement of any charges to bemade in accordance with subparagraph
ib) of this paragraph. Provision shall
be made for the tenant's participation in
the latter inspection, unless the tenant
vacates without notice to Use PHA.
RULES AND REGULATIONS
i.f) Entry at premises during tcnancu.
The lease shall set forth the circum-
stances under which the PHA may enterSie premises during the tenant's posses-sion thereof, which shall include that:
<1> The PHA shall, upon reasonable
advance notification to the tenant, be
permitted to enter the dwelling unit dur-ing reasonable hours for the purpose ofperforming routine inspections andmaintenance, for making improvementsor repairs, or to show the premises for
re-leasing. A written statement specify-
ing the purpose of the PHA entry de-livered to the premises at least two days
before such entry shall be considered
reasonable advance notification:(2) The PHA may enter the premises
at any time without advance notifica-
tion when there is reasonable cause tobelieve that an emergency exists; and
(3) In the event that the tenant and
aB adult members of his household areabsent from the premises at the time ofentry, the PHA shall leave on the prem-
ises a written statement specifying the
date, time and purpose of entry prior
to leaving the premises.
(k) Notice procedures. The lease shall
provide procedures to be followed by thePHA and tenants in giving notice one
to the other which shall require that:
(1) Except as provided in paragraph
(j) of this section notice to the tenant
shall be in writing and delivered to the
tenant or to an adult member of thetenant's household residing in the dwell-ing or sent by prepaid first-class mail
properly addressed to the tenant; and
x f 2) Notice to the PHA shall be In writ-tog, delivered to the project office or the
PHA central 'office or sent by prepaid
Sist-class mail, properly addressed.(I) Termination of the lease. The lease
shall set forth the procedures to be fol-
lowed by the PHA and by the tenant in
terminating the- lease which shall
provide:(1) That the PHA shall not terminate
or refuse to renew the lease other than
for serious or repeated violation of ma-
terial terms of the lease such as failureto make payments due under the lease orto fulfill the tenant obligations set forth
- in I 866.4 (f) or for other good cause.
(2) That the PHA shall give written
notice of termination of the lease of:
(i) 14 days in the case of failure to
pay rent;fii) a reasonable time commensurate
•with the exigencies of the situation in
the case of creation or maintenance of
a threat to the health or safety of other
tenants or PHA employees; andiiii) 30 days in all other cases.
43) That the notice of termination to
the tenant shall, state reasons for the
termination, shall inform the tenant ofhis right to make such reply as he maywish and of his right to request a hear-ing in accordance with the PHA's griev-
ance procedure.
(m) Grievance procedures: The lease
shall provide that all disputes concerning
the obligations of the tenant or the PHA
shall be resolved in accordance with the
33405
PHA grievance procedures which shall
comply with Subpart B of this Part.'n> Provision /or modification!;: The
lease .shall provide that modification ofthe lease must be accomplished by awritten rider to the lease executed byboth parties, except for paragraph (c)
of this section and § 866.5.(o) Signature clause. The lease shallprovide a signature clause attesting that
the lease has been executed by the
parties.
§ 866.5 Posting of policies, rules anil
regulations.
Schedules of special charges for serv-ices, repairs and utilities and rules and
regulations which are required to be in-
corporated in the lease by referenceshall be publicly posted in a conspicuous
manner in the Project Office and shall
be furnished to applicants and tenants
on request. Such schedules, rules andregulations may be modified from time
to time by the PHA provided that the
PHA shall give at least 30-day written
notice to each affected tenant settingforth the proposed modification, the rea-
sons therefor, and providing the tenant
an opportunity to presenT written com-
ments which shall be taken into con-sideration by the PHA prior to the pro-posed modification's becoming effective.
A copy of such notice shall be:
'a) Delivered directly or mailed toeach tenant; or(b) Posted in at'least three (3) con-
spicuous places within each structure or
building in which the affected dwelling
units are located, as well as in a con-spicuous place at the project office, if
any, of if none, a similar central busi-
ness location within the project.
§ 866.6- Prohibited lease provisions*^
Lease clauses of the nature described
below shsEPnot be incuded irf new leases
between a PHA and a tenant and shall
be deleted from existing leases either byamendment thereof or execution of a
new lease:(a) Confession ofr judgment. Prior
consent by the tenant to any lav/suit thelandlord may bring against him in con-
nection with the lease and to a judgment
in favor of the landlord.
(b) Distraint for rent or other charges.Agreement by the tenant that landlord
is authorized to take property of the ten-
ant and hold it as a pledge until thetenant performs the obligation which the
landlord has determined the tenant hasfailed to perform.(c) Exculpatory clauses. Agveement by
the tenant not to hold the landlord or
landlord's agent liable for any acts or
omissions whether intentional or negli-
gent on the part of the landlord or thelandlord's authorized representatives or
agents.
(d) Waiver of legal notice by tenant
prior to actions Jor eviction or moneyjudgments. Agreements by the tenant
that the landlord may institute suit with-*
out any notice to the tenant that the suit
has been filed, thus preventing the tenant
from defending against the lawsuit.
FEDERAL REGISTER, VOt. 40, NO. 153—THURSDAY, AUGUST 7, WSb
n 1 ,;
33106
(c) Waiver ol legal proceedings. Au-
thorization to the landlord to evict the
tenant or hold or sell the tenant's pos-
sessions whenever the landlord deter-
mines that a breach or default has oc-
curred without notice to the tenant or
any determination by a court of the
rights and liabilities of the parties.
<f ) Waiver of jury trial. Authorization
of the landlord's lawyer to appear in
court for the tenant and waive the right'
to a trial by jury.
(if.) Waiver of right to appeal judicial
error in legal proceeding. Authorization
to the landlord's lawyer to waive the
right to appeal for judicial error in any
suit or to waive the right to file a suit in
equity to prevent the execution of a judg-
ment.
(h) Tenant chargeable with cost of
legal actions regardless of outcome. Pro-
vision that the tenant agrees to pay at-
torney's fees or other legal costs when-
ever the landlord decides to take action
against the tenant even though the court
determines that the tenant prevails in
the action. Prohibition of this type of
provision does not mean that the tenant
as a party to the lawsuit may not be ob-
ligated to pay attorney's fees or other
costs if he loses the suit.
Effective date. This Part is effective on
August 7, 1975.
H. R. CRAWFORD,
Assistant Secretary for
Housing Management.
lFRDoc.75-2O7e9 Filed 8-«-75;8:45 am]
[Docket No. R-75-344)
PART 865— LEASE AND GRIEVANCE
PROCEDURES
Grievance Procedures and Requirements
On June 19, 1973 a notice was pub-
lished in the PEDEHAL REGISTER (38 P.R.
15988-9) that a review and evaluation
was being made of Circular RHM 7465.9,
dated February 22, 1971 entitled "Griev-
ance Procedures in tow-Rent Public
Housing Projects," soliciting comments
from interested organizations and per-
sons, and advising that at the conclusion
of the study proposed regulations with
proposed changes would be published in
the FEDERAL REGISTER for written com-
ment prior to final adoption by the De-
partment. On November 6, 1974, a No-tice of Proposed Grievance Procedures
and Requirements was published in the
FEDERAL REGISTER (39 F.R. 39287-89) in
accordance with the June 19, 1973 No-
tice. More than -sixty comments were
received In joint response to the Griev-
ance Procedures and Dwelling Lease
Procedures which were published at the
same time. All comments have received
full and careful consideration.
Certain chances have been made in
the proposed regulation in response to
comments received. Other comments
suggesting changes have been considered
but were not adopted by the Depart-
ment. All important changes and all Im-
portant suggested changes which were
considered but not adopted are discussed
below. The references to the new section
RULES AND REGULATIONS
numbers which have been adopted are
followed by a parenthetical notation of
the section number of the provision as
published November 6, 1974, for the con-
venience of the reader.
1. §866.50 (5410.61) The section de-
fines the purpose and scope of the regu-
lation. As adopted the regulation omits
reference to grievances involving policy
and procedure in accordance with the
determination that the grievance proce-
dure is not intended as a forum for initi-
ation or negotiation of policy changes
between tenants and the PHA.
2. §866.51 (§410.62) The section pro-
vides the applicability of the procedures
prescribed. The regulation as revised per-
mits PHAs, in jurisdictions which re-
quire that a tenant be given a hearing
in court containing the elements of due
process, to exclude terminations of ten-
ancy or evictions based upon the tenant's
creation or maintenance of a threat to
the health or safety of other tenants or
PKA employees. Comments received from
PHAs and tenant organizations urged
that in such cases eviction shall be
promptly accomplished. The previous ex-
clusion of terminations or evictions based
on nonpayment of rent has been deleted
on the grounds that PHAs are adequately
protected by the provision requiring ten-
ants to pay rent into an escrow account
in order to utilize the grievance proce-
dures (Sec. 866.55). Additionally, refer-
ence to summary eviction proceedings
has been omitted. Comments received
pointed out that in some jurisdictions
eviction actions termed as summary in
fact contain those procedural due proc-
ess protections deemed to be required.
The required elements of due process are
defined in Sec. 866.53.
3. Sec. 866.52 (No prior provision) This
new section requires that each PHA
adopt a regulation in accordance with
the Subpart within 90 days.'Another new
section, Sec. 866.59, provides for a waiver
of the requirement for adoption of the
requirements of this Subpart to permit
PHAs to retain their present griev-
ance procedure under prescribed circum-
stances.
4. Sec. 866.55 (Sees. 410.64,410.65). The
section provides for the procedures to
be followed to obtain a hearing and for
the appointment of hearing officers and
hearing panels. The regulation as
adopted requires that complainants sub-
mit grievances to informal settlement in
accordance with 5 866.54 as a condition
precedent to a hearing. Comments re-
ceived^from PHAs and some tenant ad-
vocates stated that the majority of griev-
ances can be settled by informal confer-
ence without the necessity of resorting to
a hearing procedure. The Department has
therefore determined to require that all
complaints be first submitted in the in-
formal procedure. The hearing officer or
hearing panel may waive this require-
ment for good cause shown. Many con-
flicting suggestions were received con-
cerning the method of selection of hear-
ing officers and hearing panels. The De-
partment has determined that the pro-
cedure for selection contained in the reg-
ulation as adopted presents an equitable
.
selection "method for both the tenant and
the PHA and will permit maximum flexi-
bility to PHAs and their tenants.
6. § 866.57 (§8410.67,410.68) The sec-
tion relates to the decision of the hearing
officer or the hearing panel. The regu-
lation as adopted authorizes an addition-
al basis for PHA reversal of the decision
of the hearing officer or hearing panel,
i.e., that the grievance does not- concern
a PHA action or failure to act in accord-
ance with or involving the complainant's
lease. The additional ground for reversal
implements the determination that the
grievance procedure is not intended as a
forum for negotiation of policy changes.
The regulation as adopted deletes the
provision contained in the proposed reg-
ulation as published in November 1974
which required the PHA, in the event of
an appeal from a decision of the hear-
ing officer or hearing panel to agree by
stipulation or otherwise, to limit its de-
fense to grounds originally relied upon
in its proposed disposition of the com-
plaint. Comments received protested the
inequity of confining the PHA to grounds
relied upon in the grievance procedure in
de novo proceedings in court. There the
tenant is free to raise any issue permitted
by the court, and PHAs in fairness,
should be free to counter any new matter.
The Department has determined that the
requirement is inequitable and has de-
leted it.
Other changes made are for clarity, or
are editorial.
The Secretary has determined that this
amendment does not have a substantial
environmental impact and a finding of
inapplicability is available for public in-
spection in the office of the Rules Docket
Clerk, Room 10245, 451 7th Street, S.W.,
Washington, D.C. 20410, during regular
business hours.
Accordingly, 24 CFR Part 866 is
amended by adding a new Subpart B—
Grievance Procedures and Requirements,
to read as follows:
Subpart B—Grievance Procedures andRequirements
Sec. -f -866.50 Purpose and Scope.
866.51 Applicability.
866.52 Requirements.866.53 Definitions.866 54 Informal Settlement of Grievances.
866.55 Procedures to Obtain a Hearing.
866.56 Procedures Governing the Hearing.
866.57 Decision of the Hearing Officer orHearing Panel.866.58 PHA Eviction Actions.866.59 Use of Existing Grievance Proce-
dures.
AUTHORITY1: Section 8 of the United States
Housing Act of 1937, 42 U.S.C. 1408: Sees. 5
(b) and 6(c) of the United States HousingAct of 1937. as amended. 42 U.S.C. 1437c and1437d. Sec. 201 (b) of the Housing and Com-munity Development Act of 1974. 42 U.S.C.1437 riotc; Section 7(d) of the Departmentof Housing and Urban Development Act, 42
U.S.C. 3535(d).
Subpart B—Grievance Procedures and
Requirements
§ 866.50 Purpose and scope.
The purpose of this Subpart is to set
forth the requirements, standards and
criteria for a grievance procedure to be
FEDERAL REGISTER, VOL 40, NO. Ill—THURSDAY, AUGUST 7, 1975
• r
established and implemented by public
housing agencies-(PHAs) to assure that
PHA tenants arc afforded an opportunity
for a hearing if the tenant disputes with-
in a reasonable time any PHA action or
failure to act involving the tenant's lease
with the PHA or PHA regulations which
adversely affect the individual tenant's
rights, duties, welfare or status. The
grievance procedure provided by this
Subp.irt shall be incorporated in the
dwelling leases identified as subject to the
provisions of Section 866.1 of Subpart A.
§866.51 Applicability.
(a) The PHA grievance procedure
shall be applicable to all individual griev-
ances as defined in S 866.53 of this Sub-
part between the tenant and the PHA,
Provided, that in those jurisdictions
which require that, prior to eviction, a
tenant be given a hearing In court con-
taining the elements of due process, as
defined in §866.53(d>, the PHA may
exclude from its procedure any grievance
concerning an eviction or termination of
tenancy based upon a tenant's creation
or maintenance of a threat to the health
or safety of other tenants or PHA em-
ployees.
(b) The PHA grievance procedure
shall not be applicable to disputes be-
tween tenants not involving the PHA or
to class grievances. The grievance pro-
cedure is not intended as a forum for
initiating or negotiating policy changes
between a group or groups of tenants and
the PHA's Board of Commissioners.
§ 866.52 Requirements.
Within ninety days of the effective
date of this Subpart each PHA shall
adopt a regulation affording each ten-
ant an opportunity for a hearing on a
grievance as defined in § 866.53 in ac-
cordance with the requirements, stand-
ards, and criteria contained in this Sub-
part with such modifications as are re-
quired by State law. The regulations
shall be made a part of all tenant
dwelling leases.
§ 866.53 Definitions.
For the purpose of this Subpart, the
following definitions are applicable:
(a) "Grievance" shall mean any dis-
pute which a tenant may have with re-
spect to PHA action or failure to act in
accordance with the individual tenant's
lease or PHA regulations which ad-
versely affect the individual tenant's
rights, duties, welfare or status.
(b) "Complainant" shall mean any
tenant whose grievance is presented to
the PHA or at the project management
office in accordance with § 866.54 and
5866.55'at.
<c> "Elements of due process" shall
mean an eviction action or a termina-
tion of tenancy in a State or local court
in which the following procedural safe-
Kuard.s are i p'tuircd:
• <1> Adequate notice to the tenant of
the grounds for terminating the tenancy
and for eviction: •
' 2) Op|M>rtnnity for the tenant to ex-
urnine all relevant documents, records
and regulations of the PHA prior to the
RULES AND REGULATIONS
trial for the purpose of preparing a
defense;
13) Hiisht of the tenant to be repre-
sented by counsel;
(4) Opportunity for the tenant to re-
fute the evidence presented by the PHA
including the right to confront nnd cross-
examine witnesses and to present any
affirmative legal or equitable defense
which the tenant may have:(5) A decision on the merits.
(d> "Hearing officer" shall mean a
person selected in accordance with
5 866.55 of this Subpart to hear griev-
ances and render a decision with respect
thereto.
<e> "Hearing panel" shall mean a
panel selected in accordance with
§ 866.55 of this Subpart to hear griev-
ances and render a decision with re-
spect thereto.
tf> "Tenant" shall mean any lessee
or the remaining head of the house-
hold of any tenant family residing in
housing accommodations covered by
this Part.
§ 866.51 Informal settlement of firiev-
anre.
Any grievance shall be personally pre-
sented, either orally or in writing, to
the PHA office or to the office of the proj-
ect in which the complainant resides so
that the grievance may be discussed in-
formally and settled without a hearing.
A summary of such discussion shall be
prepared within a reasonable time and
one copy shall be given to the tenant
and one retained in the PHA's tenant
file. The summary shall specify the
names of the participants, dates of
meeting, the nature of the proposed dis-
position of the complaint and the spe-
cific reasons therefor, and shall specify
the procedures by which a hearing under
5 866.55 may be obtained if the com-
plainant is not satisfied.
§ 866.55 Procedure to obtain a hearing.
(a) Request lor hearing. The com-
plainant shall submit a written request
for a hearing to the PHA or to the proj-
ect office within a reasonable time after
receipt of the summary of discussion
pursuant to § 866.54. The written re-
quest shall specify:
(1) The reasons for the grievance;
and
(2) The action or relief sought.
(b) Selection of Hearing Officer or
Hearing Panel. Grievances shall be pre-
sented before a hearing officer or hear-
ing panel. A hearing officer or hearing
panel shall be selected as follows:
(1) The hearing officer shall be an
impartial, disinterested person selected
jointly by the PHA and the complain-
ant. If the PHA and the complainant
cannot agree on a hearing officer, they,
shall each appoint a member of a hear-
ing panel and the member so appointed
shall select a third member. If the mem-
bers appointed by the PHA and the com-
plainant cannot agree on a third mem-
ber, such member shall be appointed by
an independent arbitration organization
such as the Center for Disputes Settle-
ment of the American Arbitration Asso-
^ - 33107
ciatuf!1?; or by any other third party
agreed upon by the PHA and the
complainant.
<2) In lieu of the procedure snt forth in
paragraph 'a) of this section a PHA may
provide for the appointment of hearing
officer or hearing panels by any method
which is approved by the majority of
tenants 'in any building, group of build-
ings, or project, or group of projects *o
which the methods is applicable) voting
in an election or meeting of tenants held
for the purpose.
(c) Failure to request a hearing. If the
complainant does not request a hearing
in accordance with this paragraph, then
the PHA's disposition of the grievance
under ? 866.54 shall become final. Pro-
vided, that failure to request a hearing
shall -not constitute a waiver by the com-
plainant of his right thereafter to contest
the PHA's action in disposing of the com-
plaint in an appropriate judicial pro-
ceeding.
(A) Hearing Prerequisite. All grievances
shall be personally presented either or-
ally or in writing pursuant to the infor-
mal procedure prescribed in § 866.54 as
a condition precedent to a hearing under
this section. Provided, that if the com-
plainant shall show good cause why he
failed toproceed in accordance with
$ 866.54 to the hearing officer or hearing
panel, the provisions of this subsection
may be waived by the hearing officer
or hearing panel.
(e) Escrow deposit. Before a hearing
is scheduled in any grievance involving
the amount of rent as defined in § 866.4
(b) of Subpart A of this Part which the
PHA claims is due, the complainant shall
pay to the PHA an amount equal to the
amount of the rent due and payable as
of the first of the month preceding the
month in which the act or failure to act
took place. The complainant shall there-
after deposit the same amount of the
monthly rent in an escrow account
monthly until the complaint is resolved
by decision of the hearing officer or hear-
ing panel. These requirements may be
waived by the PHA in eitenuating cir-
cumstances. Unless so waived, the failure
to make such payments shall result in
a termination of the grievance proce-
dure, Provided, that failure to make pay-
ment shall not constitute a waiver of any
right the complainant may have to con-
test the PHA's disposition of his griev-
ance in any appropriate judicial proceed-
ing-
(f) Scheduling of hearings. Upon com-
plainant's compliance with paragraphs
(a), (d) and (e) of this section, a hearing
shall be scheduled by the hearing officer
or hearing panel promptly for a time
and place reasonably convenient to both
the complainant and the PHA. A written
notification specifying the time, place
and the procedures governing the hear-
ing shall be delivered to the complainant
and the appropriate PHA official.
§ 866.56 Procedures (lovcming the
Iieuriitfx. t
(a) The hearing shall be held before
a hearing officer or hearing panel, as
appropriate.
FEDERAL REGISTER, VOL. 40, NO.' 153—THURSDAY, AUGUST 7, 197S '
.33108
<b> The complainant shall be afforded
a fair hearing providing the basic safe-
guards of due process which shall
include;
< 1 > The opportunity to examine before
the hearing and. at the expense of the
complainant, to copy all documents, rec-
ords and regulations of the PHA that
nre relevant to the hearing. Any docu-ment not so made available after request
therefor by the complainant may not be
relied on by the PHA at the hearing;
(2) The right to be represented by
counsel or other person chosen as his or
her representative;(3) The right to a private hearing un-
less the complainant requests a public
hearing;
(41 The right to present evidence and
arguments in support of his or her com-
plaint, to controvert evidence relied on by
the PHA or project, management, and to
confront and cross-examine all witnesses
on whose testimony or information the
PHA or project management relies; and
(5> A decision based solely and ex-
clusively upon the facts presented at the
hearing.
(c) The hearing officer or hearing
panel may render a decision without pro-
ceeding \vith the hearing if the hearing
officer or hearing panel determines that
the issue has been previously decided in
another proceeding.
(d) If the complainant or the PHA
fails to appear at a scheduled hearing,the hearing officer or hearing panel may
make a determination to postpone the
hearing for not to exceed five business
days or may make a determination that
the party has waived his right to a hear-
ing. Both the complainant and the PHA
shall be notified of the determination by
the hearing officer or hearing panel, Pro-
'vided, that a, determination that the
complainant has waived his right to a
hearing shall not constitute a waiver ofany right the complainant may have to
contest the PHA's disposition of the
grievance in an appropriate judicialproceeding.
(e) At the hearing, the complainantmust flrst make a showing of an entitle-
ment to the relief sought and thereafter
the PHA must sustain the burden of jus-
tifying the PKA action or failure to act
against which the complaint is directed.
(f) The hearing shall be conducted
informally by the hearing officer or hear-
ing panel and oral or documentary evi-r
dence pertinent to the facts and issues
raised by the complaint may be received
RULES AND REGULATIONS
without regard to admis.sibility under therules of evidence applicable to judicialproceedings. The hearinK officer or hoar-
ing panel shall require the PHA, the com-plainant, counsel and. other participants
or spectators to conduct themselves in an
orderly fashion. Failure to comply withthe directions of the hearing officer or
hearing panel to obtain order may resultin exclusion from thn proceedings or ina decision adverse to the interests of the
disorderly party and granting or denial
of the relief sought, as appropriate.
<B> The complainant or the PHA may
arrange, in advance and at the expense
of the party making the arrangement,
for a transcript of the hearing. Any in-
terested party may purchase a copy of
such transcript.
§ 86ft.57 Decision of the hearing officer
or hcuring panel.
(a) The hearing officer or hearing pa-
nel shall prepare a written decision, to-
gether with the reasons therefor, within
a reasonable time after the hearing. Acopy of the decision shall be sent to the
complainant and the PHA. The PHA shall
retain a copy of the decision in the ten-
ant's folder. A copy of such decision, with
all names and identifying references de-
leted, shall also be maintained on file
by the PHA and made available for in-
spection'by a prospective complainant,
his representative, or the hearing panel
or hearing officer.
(b) The decision of the hearing officer
or hearing panel shall be binding on the
PHA which shall take all actions, or re-
frain from any actions, necessary to carry
out the decision unless the PHA Board of
Commissioners determines within a rea-
sonable time, and promptly notifies the
complainant of its determination, that
(1) The grievance does not concern
PHA action or failure to act in accord-
ance with or involving the complainant's
lease on PHA regulations, which adverse-
ly affect the complainant's rights, duties,
welfare or status;
(2) The decision of the hearing officer
or hearing panel is contrary to applicable
Federal, State or local law, HUD regula-
tions or requirements of the annual con-
tributions contract between HUD and
the PHA.
(c) A decision by the hearing officer,
hearing panel, or Board of Commission-
ers in favor of the PHA or which deniesthe relief requested by the complainant
In whole or in part shall not constitute a
waiver of, nor affect in any manner
.
ateverwhatever! any rights the complainant
may have to a trial de novo or judicialreview in any judicial proceedings, which
may thereafter be brought in the matter.
§ 866.58 PMA rvirlion action*.
If a tenant has requested a hearing in
accordance with § 866.55 on a complaint,
involving a PHA notice of termination of
the tenancy and the hearing officer orhearing panel upholds the PHA's action
to terminate the tenancy, the PHA shall
not commence an eviction action in a
State or local court until it has served
a notice to vacate on the tenant, and inno event shall the notice to vacate be
issued prior to the decision of the hear-
ing officer or the hearing panel having
been mailed or delivered to the complain-
ant. Such notice to vacate must be in
writing and specify that if the tenantfails to quit the premises within the ap-
plicable statutory "period, or on the
termination date stated in the notice of
termination, whichever is later, appro-
priate action will be brought against himand he may be required to pay court costs
and attorney fees.
§ 8f»<i.59 Use of existing grievance pro-
cedures. *
If a PHA has adopted a grievance
procedure in accordance with the re-
quirements of Circular RHM 7465.9,
dated February 22, 1971 entitled "Griev-
ance Procedure in Low-Rent Public
Housing Projects" prior to the effective
date of this Subpart and desires to retain
such procedure, the Secretary or his
designee may waive adoption of a griev-
ance regulation in accordance with this
Subpart, Provided, that the PHA requests
such waiver within six months of the
effective date of this Subpart, and Pro-
vided further, that the PHA provides evi-
dence satisfactory to the Secretary or his
designee that the affected tenants were
adequately represented in the develop-
ment of the prior procedure and that
the affected tenants concur in the PHA's
request to retain the existing procedures.
After the effective date of this Subpart asstated below no amendment to existing
grievance procedures adopted in accord-
ance with the requirements of Circular
RHM 7465.9 shall be permitted.
Effective date. This part is effective on
August 7,1975.
H. R. CRAWFORD,
Assistant Secretaryfor Housing Management.
(PR DOC.7&-20790 Filed &-fr-75;8:45 am]
FEDERAL REGISTER, VOL. 40, NO. 153—THURSDAY, AUGUST 7. 1975