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lawyer ohio
The appellate court found nothing in the statutory provisions governing the Section 8 housing choice voucher program, 42 U.S.C.A. ?1437f(o), its implementing regulations, 24 C.F.R. ?982, or the HUD guidelines for the program set forth in the Housing Choice Voucher Program Guidebook, that supported Jennings' claim that she is entitled to succeed to the tenancy rights in the apartment her mother leased from plaintiff. In the absence of an affirmative grant of such a succession right in the federal statutes and regulations, the court concluded that this right should not be implied.
Jennings argued that she was a “remaining member of the tenant family?with whom plaintiff entered into a Section 8 tenancy, and therefore, the landlord could only evict her in accordance with the Section 8 statute and regulations. However, even assuming Jennings became part of the tenant family when she moved in with Guy and was entitled upon Guy's death to continue in the Section 8 program as a “remaining member of the tenant family,?this does not mean she also succeeded to Guy's leasehold and that plaintiff was required to accept her as a tenant. The right that 42 U.S.C.A. ?1437f(d)(1)(A) reserves to landlords to select their tenants is not affected by the statutes, regulations and HUD Guidelines defining the terms “tenant family,?“single person family,?and “remaining member of a tenant family,?see 42 U.S.C.A. ?1437a(b)(3), 24 C.F.R. ?982.4(b), 24 C.F.R. ?902.201(c), for purposes of determining eligibility to receive assistance under the Section 8 program. See U.S. Dep't of Housing and Urban Dev., Housing Choice Voucher Program Guidebook, at 5.2.
This conclusion is also supported by the Supreme Court of Virginia's decision in Carter v. Meadowgreen Assocs., 597 S.E.2d 82 (Va ..2004), cert. denied,544 U.S. 963, 125 S.Ct. 1727, 161 L. Ed.2d 606 (2005), which held that a son who had been residing in a leased property with the consent of the landlord was not permitted to succeed to his mother's Section 8 tenancy upon her death. At the time of the named tenant's death, she was in holdover status as a month-to-month tenant of a three-bedroom apartment. The landlord informed the tenant's son that, as the sole remaining occupant, he did not qualify for such a large apartment, but could apply for a smaller unit. The son filled out an application for a smaller unit, but was denied because of his poor credit history. The son argued, based upon the Section 8 provision setting forth the “Declaration of Policy?to aid low-income families in obtaining safe and affordable housing and his status as the “remaining member of a tenant family,?that he succeeded to his mother's tenancy rights. The court rejected this argument, reasoning that the Section 8 statutory scheme does not override Virginia law on the succession of a tenancy. The court explained:
Congress included many provisions in the statutes governing “Section 8 housing?to regulate landlord-tenant relationships, but made no express provision for the devolution of a tenant's leasehold interest upon the tenant's death···· The definition of “families?sets forth the classes of persons intended to be benefited by the statutory scheme. Congress did not, however, undertake a total re-writing of state landlord-tenant law as it may apply to “Section 8 housing.?We may assume that where the federal law is silent, the intent of Congress was to leave the applicable state law undisturbed. The trial court did not discuss Carter, presumably because the parties failed to bring this decision to its attention. Instead, the court relied upon a New York trial court decision, Morrisania II Assocs. v. Harvey, 527 N.Y.S.2d 954, 956-58 (N .Y. Civil Ct., Bronx Cty.1988), which conflated the right of a “remaining member of a tenant family?to continue receipt of Section 8 benefits with the right to succeed to the tenancy that the decedent had entered into with the landlord. See also NSA N. Flatbush Assocs. v. Mackie, 632 N.Y.S.2d 388 (N.Y. Civil Ct., Kings Cty.1995). However, the New York Court of Appeals has subsequently distinguished between the issue of whether an occupant of a subsidized apartment has succession rights to a Section 8 housing subsidy as a surviving family member, which is “governed solely by Federal law [,]?and the issue of whether the occupant is “entitled to continued possession of the premises,?which is governed by “State law.?Evans v. Franco, 710 N.E.2d 261, 262 (N.Y.1999). Thus, the New York trial court opinion relied upon by the trial court apparently no longer has any precedential value even in New York. Furthermore, Carteret Housing Authority v. Gilbert, 301 N.J.Super.. 109, 112 (Law Div.1997), which the trial court also relied upon, is based on the erroneous premise derived from the New York trial court opinion that the federal statutes and regulations governing eligibility for Section 8 low income housing assistance subsidies establish a right to succeed to a tenancy subsidized under that program.
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