VIII. TERMINATING TENANCY - LEASE PROVISIONS
The regulations at 24 CFR 5.858, 5.859 and 5.860 set forth required provisions that Owners must incorporate into their leases that provide for termination of tenancy. Owners have the discretion to terminate the tenancy and the lease must provide grounds for terminating the lease for the following:
Drug-related criminal activity engaged in on or near the premises, by any tenant, household member, or guest, and any such activity engaged in on the premises by any other person under the tenant's control. (See the definitions of premises, guest and other person under the tenant's control.) The definitions below are in accordance with the regulations at 24 CFR 5.100.
1) Premises – means the building or complex or development in which the public or assisted housing dwelling unit is located, including common areas and grounds.
2) Guest – means a person temporarily staying in the unit with the consent of a tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant.
3) Other person under the tenant's control – means a person who, although not staying as a guest in the unit, is, or was at the time of the activity in question, on the premises because of an invitation from the tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant. (Examples of other persons under the tenant's control include party attendees, regular visitors, and people who provide a commercial service to a household member on a regular and frequent basis, such as an in-home nursing care provider.) Absent evidence to the contrary, a person temporarily and infrequently on the premises solely for legitimate commercial purposes is not under the tenant's control -- for example, the pizza delivery man.
A determination made by the Landlord that a household member is illegally using a drug.
A determination made by the Landlord that a pattern of illegal use of a drug by a household member interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.
Criminal activity by a tenant, any member of the tenant's household, a guest or another person under the tenant's control:
a) that threatens the health, safety, or right to peaceful enjoyment of the premises of other residents (including property management staff residing on the premises); or
b) that threatens the health, safety, or right to peaceful enjoyment of their residences of persons residing in the immediate vicinity of the premises.
If the tenant is fleeing to avoid prosecution, custody or confinement after conviction for a crime or an attempt to commit a crime that is a felony under the laws of the place from which the individual flees or that, in the case of the State of New Jersey, is a high misdemeanor.
If the tenant is violating a condition of probation or parole imposed under Federal or state law.
A determination made by the Landlord that a household member's abuse or pattern of abuse of alcohol threatens the health, safety, or right to peaceful enjoyment of the premises of other residents.
In accordance with the regulation at 24 CFR 5.861, the Landlord may terminate tenancy and evict the tenant through judicial action for criminal activity by a covered person if the Landlord determines that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested, or convicted for such activity and without satisfying a criminal standard of proof of the activity. HUD encourages, but does not require, Landlords to take into account individual circumstances when making a determination to terminate tenancy; such circumstances might include, among other things, the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, and whether the leaseholder, if not the wrongdoer, took all feasible steps to prevent the offending action from occurring and has removed the offending person from the lease or otherwise banned the offending person from the premises in the future.
IX. INFORMATION REGARDING SEX OFFENDERS
In the screening of applicants, Owners must perform the necessary criminal history background checks to determine the applicants' suitability for Federally-assisted housing. Therefore, Owners should contact national and state sex offender registry agencies. Owners are required to prohibit admission of all sex offenders who are subject to a lifetime registration requirement under a state sex offender program. In accordance with Federal law, any individual who is a sex offender subject to a lifetime registration requirement under state law shall not be admitted to Federally-assisted housing. Owners have the discretion to "screen out" applicants who the Owner determines to be unsuitable under the Owner's established standards for admission (for example, sex offenders who are not subject to a registration requirement under state law).
In accordance with the regulation at 24 CFR 5.905(b), an Owner of Federally-assisted housing that is located in the jurisdiction of a PHA that administers a Section 8 or public housing program under an Annual Contributions Contract with HUD may request that the PHA obtain information necessary to determine whether a household member is subject to a lifetime registration requirement under a state sex offender registration requirement.
Households already living in Federally-assisted housing units are not subject to the provisions in the regulations at 24 CFR 5.856. Neither the statutory nor regulatory requirements specifically address sex offenders currently living in Federally-assisted housing.
X. CONDUCTING BACKGROUND CHECKS
Owners of Federally-assisted housing may request the PHA in the area where the project is located to obtain criminal background information concerning a "household member" for applicant screening, lease enforcement, or eviction. Prior to performing or requesting a PHA to conduct a background check, Owners must obtain signed written consent forms from the applicant or household member. Additionally, before a background check is conducted the Owner must provide the PHA with its selection criteria. The PHA will screen for admission based on the Owner's selection criteria. All criminal background checks conducted must be done consistently for every applicant and/or resident.
Upon request of the Owner, the PHA must request the criminal conviction records in the states where the applicant resides and has resided. The regulation at 24 CFR 5.903(a) authorizes PHAs administering Section 8 (including State Housing Finance Agencies that administer a Section 8 contract under an Annual Contributions Contract (ACC)) to obtain criminal conviction records from a law enforcement agency. Owners and PHAs may rely on the applicants' declarations regarding their residences and any other information. The PHA's determination with regard to the screening and admission of applicants is based upon the criminal conviction record and the Owner's standards for prohibiting admission. All findings of criminal background or sex offender status used to make determinations must be documented. If the Owner's selection criteria are not clear, the PHA should contact the Owner for clarity. The PHA will make a determination based on the information provided by the Owner. Any decisions based on "reasonable belief" or other "determination" of the owner, the reason for the belief or determination should be documented. This documentation should not be only of specific behavior but that the behavior would (or does) interfere with the health, safety, or peaceful enjoyment of other residents.
If, after a criminal background check has been conducted, it is discovered that the applicant or tenant provided false information, the Owner may deny admissions to the applicant or may evict the tenant in accordance with its standards for admissions screening or for termination of tenancy. However, the household must be notified by the PHA/Owner of the proposed action to be based on the information and must provide the subject of the record, and the applicant or tenant, with a copy of such information, and an opportunity to dispute the accuracy and relevance of the information obtained from any law enforcement agency.
Owners may use sources other than the PHA for the purpose of conducting background checks of criminal conviction records. The Owner may conduct his/her own background search of criminal records, or may secure a contractor. The Owner may not charge the applicant/tenant a fee for these background searches. In those cases where the Owner conducts his/her own criminal background searches or uses sources other than a PHA, the Owner will make the determination, in accordance with the Owner's standards for admission, if the applicant/tenant meets the screening criteria.
If there is any information discovered, and the applicant or tenant has not revealed the information, the applicant or tenant may be subject to violation. Information withheld during the application process could be grounds for denying admission. Tenants who provide false information or withhold information may be in violation of the lease agreement.
Owners and PHAs have the discretion to contract out their screening activities, but will be responsible for the action and decisions made by their contractors. HUD does not prescribe the manner in which the PHA determines its source for obtaining this information. The criminal records must be requested from the appropriate law enforcement agency, National Crime Information Center (NCIC), police departments, or other law enforcement agencies that hold criminal conviction records.
Police officers and other security or management personnel that apply to rent subsidized units are subjected to the same screening criteria as other applicants.
PHAs that obtain criminal records are not responsible for updating the criminal history of an applicant or tenant. Criminal records are to be managed in accordance with the requirements in the regulations at 24 CFR 5.903(g) requiring the PHA to insure that, "…any criminal record received by the PHA from a law enforcement agency is maintained confidentially; not misused or improperly disseminated; and destroyed, once the purpose for which the record was requested has been accomplished." When destroying records of criminal background checks in accordance with 24 CFR 5.903(g), notation should be made in the tenant file of the date the records were destroyed and that the reason was for purposes of confidentiality.
