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Rent it Right
by Janet Portman, Inman News
landlord helpQ: My husband and I have lived in our apartment for 20 years. When he became disabled, we applied for Section 8 assistance. After two years’ wait, we were accepted and got a voucher. But our landlord doesn’t want to participate in the Section 8 program. We can’t afford the rent without help. Is there any way to force the landlord to accept Section 8 money? –Marissa and Bill A: Your options will depend on which state you live in. But first, a little background on the Section 8 federal rent subsidy program: When a family becomes eligible for Section 8 assistance, the local public housing authority (PHA) issues them a voucher, which is simply a document describing the program and the steps the housing authority will take to approve a rental selected by the family.When the family selects a rental, with an owner willing to lease under the program, the family asks the PHA to approve the tenancy. If the rental passes a physical inspection, and the landlord attaches the “Section 8 Addendum” to the lease, the tenancy is created. Tenants pay 30 percent of their income toward the rent; the federal government, through the local housing authority, pays the rest directly to the landlord.

The federal law that established Section 8 does not require landlords to participate in the program. But some states do. In Connecticut, Maryland and Massachusetts, for example, landlords may not refuse to rent to current or new tenants who become or are eligible for Section 8 help.

And in New Jersey, when an existing tenant becomes eligible for Section 8 help, the landlord may not refuse to accept Section 8 money. If you live in one of these states, your landlord’s refusal is against the law.

Alas, you may not live in one of these four states. Tenants in positions like yours have used creative arguments to support their theory that the landlord must participate in the program. One such argument is based on the state’s ban (if there is one) on discrimination on the basis of “source of income.”

Normally, this prohibition prevents a landlord from refusing to rent to someone who receives Supplemental Security Income (SSI) payments, alimony or money from any other legitimate source. Would-be Section 8 tenants can attempt to extend that ban to subsidies to the landlord from the government under Section 8.

An argument of just this kind was recently settled by an appellate court in California, which has a ban on source-of-income discrimination. The court pointed out that the subsidy paid to the landlord was not “income” to the tenant — it was money that went from the federal government to the local housing authority, and then to the landlord. Simply put, it was the landlord’s income, not the tenant’s.

The court also looked at the text of the source-of-income law and considered the effect of its language that a landlord was not to be considered a “representative” of the tenant. The Legislature, reasoned the court, was making it crystal clear that a subsidy to the landlord was different than, say, money paid to a tenant’s conservator.

In the latter circumstance, a landlord could not legally refuse to rent to a conservatee whose support was channeled through a conservator. But, said the lawmakers, a landlord is no such representative.

One hears lots these days about “activist judges,” usually from quarters that disparage tenant rights, but in the California case, the judges were simply doing their job — applying the clear law that the Legislature wrote. If California’s notoriously rancorous state Legislature wants to require participation in Section 8, it can do what other states have done and say so directly.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].

Copyright 2010 Janet Portman
See Janet Portman’s feature, Rules for Showing Leased Properties.

 

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  • Barbara

    I’m not aware that the entire state of Maryland requires Section 8 participation. I know certain counties like Prince George’s and Montgomery counties do. I rent apartments in Baltimore City and they do not require it.

  • Janet

    If I had a long-term tenant that I wanted to retain, I would consider taking Section 8–but only after asking a lot of questions!
    The main question–would taking Section 8 this one time obligate me to continue taking it with future tenants in this same apartment? Or in other rental units that I have?
    Personally, we have had terrible experiences with Section 8–both with bad tenants and with the terrible housing authority.
    We swore that we would never accept Section 8 again!
    Earlier, however, he had some fantastic, hard-working tenants who just couldn’t get ahead–they signed up for Section 8. The Housing Authority, however, said that our duplex wasn’t good enough! It was as good or better than where we ourselves lived–a well-maintained, older unit. However, since it wasn’t just 2-3 years old, our local HA refused to accept it into the program. The tenants had to leave–they were very unhappy, and so were we. We hated to lose them.
    Then later, we had very bad tenants (in newer units)–the HA refused to support us in any way. We had over $6k of repairs on a 3-bedroom unit–and many months of lost rent while the repairs were being done. The HA just moved the deadbeat trashers into another owner’s property, where they did the same thing. They’re probably still in the program, and still trashing properties!
    Is it just our local office that allows this behavior without any repercussions to the bad tenants???
    Luckily, we’re in a state that doesn’t force landlords to participate. If they did force us, I would get totally out of the rental business. There are better and easier investments to get into–with a lot less hassle!!!

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