In an express response to the Supreme Court’s recent decision canceling the power of the Centers for Disease Control and Prevention (“CDC”) to impose an eviction moratorium, the US Department of Housing and Urban Development (“HUD”) announced steps to at least slow down a threatened wave of evictions. Specifically, it published an interim rule (the “Interim Rule”) authorizing a 30-day notice requirement for evictions due to nonpayment of rent from certain public housing and HUD-assisted housing, and requiring that any such eviction notice include detailed information concerning the availability of emergency rental assistance (“ERA”). On the same day, HUD published a joint Notice (the “Notice”) from its Offices of Housing and Public and Indian Housing, implementing the 30-day eviction notice and specifying the content of the ERA notice. The 30-day eviction notice requirement takes effect on November 8, 2021.
HUD’s action does not prevent housing providers from evicting tenants. As noted, it only applies to evictions for nonpayment of rent, only requires owners to give tenants 30-days’ notice before they are evicted, and applies to a relatively narrow group of public and HUD-assisted housing. According to HUD, the action was necessary because “in the immediate aftermath of the judicial vacatur of the CDC eviction moratorium, [HUD] needs to act to prevent a wave of preventable evictions.” 86 Fed. Reg. at 55696. To justify its action, HUD explained that the notice period would provide time for families to apply for ERA to prevent evictions, and pointed to the harm to HUD’s overall mission resulting from unnecessary evictions. Id. at 55696-97.
According to the Interim Rule and the Notice, the 30-day notice requirement largely applies to properties that receive project-based assistance. These include Section 8 Project-based Rental Assistance (including Section 8 New Construction, Substantial Rehabilitation, State Housing Agency Program, Rural Housing Section 515/8, and Rental Assistance Demonstration, among others), Section 202 PAC/PRAC/SPRAC, and Section 811 Project Rental Assistance. Notice at 5. It also applies to PHAs administering the Public Housing program, including PHAs that participate in the Moving to Work Program and to families residing in public housing units covered by an Annual Contributions Contract. Id. It does not apply to PHAs that administer only the Housing Choice Voucher (“HCV”) Program, or to families assisted by the Project-Based Voucher program. Id.
HUD’s notice requirement is just the latest in its efforts over the last 18 months to prevent evictions as a result of economic dislocations caused by the COVID-19 pandemic and should come as no surprise. Now that the Supreme Court has shut down the CDC’s eviction moratorium, HUD is testing its powers to prevent additional evictions. HUD’s approach—to impose longer eviction notice requirements and to provide additional information to tenants with respect to the availability of emergency rental assistance—may help to finally connect tenants to the assistance that will allow them to remain in place. So far, the threatened tsunami of evictions has failed to materialize and HUD’s new eviction notice requirement may help to keep it that way.