Loading...
HomeMy WebLinkAbout1976-03-09; Housing Authority; Resolution 621 2 3 4 5 6 7 8 9 10 11 12 15 14 15 16 17 18 19 20 21 22 23 24 25 26 •27 28 29 30 31 32 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