The procedures in this section are to be used to initiate evictions for non-payment of use and occupancy against:
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Emergency transferees (when they occupy an apartment under a use and occupancy agreement);
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Applicants for residual tenancy (who occupy an apartment under a use and occupancy agreement); and,
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Households that occupy an apartment under a court agreement (an Agreement of Judgment) entered in a cause eviction.
This procedure is not to be used:
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To enforce court agreements (Agreements for Judgment) in non-payment of rent cases or
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To initiate eviction for cause against household who occupy premises under use and occupancy agreements.
There are primarily three situations in which a household will occupy an apartment under a use and occupancy agreement. The first occurs when an existing BHA Resident is transferred from one apartment to another as the result of an emergency transfer and BHA decides not to enter into a new lease with the Resident because there is reason to believe the Resident or a household member or guest has caused the emergency situation, i.e. fire, flood or other serious damage. (See Section 7 below.) The second occurs when the remaining member or members of a Resident household are seeking to become BHA tenants under the Residual Tenancy Policy. (See Section 6 below.) The third, occurs when a former Resident is permitted to remain in a BHA apartment under an agreement for judgment entered in a cause eviction and the Resident is required to pay use and occupancy so long as he or she remains in the apartment. The failure of the occupant(s) to make such payments entitles the BHA to commence an eviction proceeding for failure to pay use and occupancy to regain possession of the premises.
Among the forms which are included with this procedure is a "Manager's Checklist For Use and Occupancy Evictions" (Form UO-06). The checklist serves as a guide to the various steps to be followed under this procedure. The checklist should be consulted and used from the very beginning of the procedure in each case.
Step 1: Private Conference for Non-Payment of Use And Occupancy
The eviction process is begun on the 7th day of the second month of delinquency by the manager sending a "Notice of Private Conference for Non-Payment of Use And Occupancy" (Form UO-01) to the Resident/occupant. The notice should be delivered to the Resident/occupant in the manner most likely to reach him or her in the quickest time frame. In hand delivery is the preferred method for delivering any notice to the Resident/occupant. In hand delivery can be to the Resident or any adult present at the apartment. In the alternative the notice may be left under the apartment door and sent by first class mail or by certified and first-class mail. A certification of delivery must be made on the section of the notice entitled "Certificate of Service." The Resident/occupant is invited to attend a private conference at a date and time specified in the notice. The amount of the use and occupancy owed is also specified. If the time of the conference is inconvenient for the Resident/occupant, he or she may call and arrange for an alternate time within a few days (2-3). While no particular time period is required by law between the time the Resident/occupant receives the notice of private conference and the time the private conference is scheduled, at least seven days is recommended.
At the private conference, the Manager meets with the Resident/occupant and the his/her representative, if any. This is an opportunity for the Resident/occupant to explain or refute the BHA's information that he/she has failed to pay use and occupancy. Typical subjects appropriate for discussion include: accounting errors or payments the Resident/occupant claims to have made, but were not received by the BHA, use and occupancy set at the wrong level, unusual financial hardship, or serious violations of the State Sanitary Code.
If the condition of the apartment becomes an issue at this or any later stage of the process, the Manager should make a personal inspection. Any condition observed by the Manager which violates the State Sanitary Code must be corrected prior to sending the case to the Legal Department.
From the BHA's standpoint, there are two purposes served by the private conference. First, the Manager may seek to settle with the Resident/occupant and get written agreement, if possible, on the amount of use and occupancy actually owed. Second, the Manager may seek to obtain an agreement from the Resident/occupant that he or she will resume paying full use and occupancy and will either pay off the amount owed immediately or pay an additional sum of money on a monthly basis to pay off the amount owed. Such agreements should be realistic in light of the Resident/occupant's financial ability. Managers shall make only one agreement with the Resident/occupant for the payment of use and occupancy owed. If the Resident/occupant fails to comply with the agreement for any reason, the Resident/occupant shall be served with a "Notice To Quit for Non-Payment of Use And Occupancy" (Form UO-03).
If an agreement is reached, it is important to use the "Agreement as to Amount of Use And Occupancy Owed and Schedule for Repayment" (Form UO-02). If an agreement is modified, a new form should be used, and the same procedure followed. Managers should encourage individuals who receive public assistance, Transitional Assistance to Families with Dependent Children (TAFDC), to arrange for direct payment of the amount agreed to be paid. When the amount owed is paid, the amount of the direct payment can be reduced to the amount of monthly use and occupancy payment. The Manager is also free to accept and the Resident/Occupant may offer Emergency Assistance (E.A.) as a means of paying the rent owed. However, E.A. should be accepted only if it will pay the outstanding balance in full or if the E.A. payment in combination with other payments made at the time the E.A. agreement is signed will result in the outstanding balance being paid in full.
If the Resident/occupant fails to appear at the private conference or if the Resident/occupant comes to the private conference and no agreement is reached, the Manager must make a determination based upon his or her best information of the amount of use and occupancy that is actually owed by the Resident/occupant. If the Resident/occupant has made no agreement to repay, the manager should make a determination to proceed with eviction and serve the Resident/occupant the notice described in Step 2.
Regardless of the outcome of the Private Conference, the Manager should document the conference by completing a "Summary of Private Conference" form (Form UO-03). This form should also be completed if the Resident/occupant failed to appear at the conference. This document may provide the Legal Department with valuable information when preparing the case for Housing Court. A copy of the summary should be delivered to the resident, and the Certificate of Service on the copy for the Resident/occupant's file should be completed.
Step 2: Notice To Quit For Non-Payment of Use and Occupancy (7 Day Notice to Quit).
The "Notice to Quit for Non-payment of Use and Occupancy" (Form UO-03) shall be served on the Resident/occupant as soon as practicable after the private conference. The Notice to Quit states the amount of use and occupancy determined to be outstanding. When the eviction is against an emergency transferee the Manager must indicate on the Notice To Quit both the address of the apartment the Resident occupies under the use and occupancy agreement and the address of the apartment on the Resident's lease.
The Notice to Quit is the notice form which actually terminates the right of Resident/occupant to remain in the apartment that he/she occupies under the use and occupancy agreement. It should normally be served personally on the Resident/occupant or an adult member of the Resident/occupant household. The BHA is free to proceed to court at the end of the 7 day period. However, the BHA will normally not proceed to court if the Resident/occupant has paid the use and occupancy or entered into an agreement during the 7 day period.
If all use and occupancy is not paid or an agreement is not reached for installment payments within 7 days after Notice to Quit is served, the right of the household to remain in the premises is terminated.
Step 3: Grievance Procedure (Emergency Transferees and Remaining members of tenant households Only)
Only emergency transferees and remaining members of tenant households listed on the TRS are entitled to a grievance panel hearing under these procedures. All written requests for a grievance hearing received by Managers or received directly from a Resident go to the Grievance Panel Coordinator who shall schedule a hearing within the time period provided in the BHA "Tenant Grievance Policies and Procedures" or BHA lease. The Grievance Panel Coordinator shall notify the Resident and the Manager of the date, time and place of the hearing.
The Grievance Panel, following the BHA "Tenant Grievance Policies and Procedures" and its own procedures, shall hear the grievance and make a determination as to whether the emergency transferee(s) or remaining member(s) of the occupant's household has failed to make payment on use and occupancy. If the Panel determines that the grievant has failed to make such payments and there is no satisfactory agreement reached as to repayment, then the Panel should vote to permit eviction of the Resident for non-payment of use and occupancy.
As the case with the Private Conference, the grievance hearing should be an opportunity to seek an agreement with the Resident as to the amount of use and occupancy and a schedule for repayment. All considerations discussed in Step 1 above, apply equally at this stage of the process.
After the hearing, the Grievance Panel will notify the Resident and the manager of its decision in writing. If it finds that the Resident is in arrears on use and occupancy payments, then the decision will ordinarily be to proceed with eviction. It is not necessary to serve a new Notice to Quit.
Following the Grievance Hearing, if the decision is in favor of the BHA, the Grievant has a right to appeal the decision of the Grievance Hearing Panel to the BHA Administrator or her designee, a BHA hearing officer. If the occupant chooses to appeal, the court eviction process cannot begin until after the grievance appeal has been heard and decided. If the Grievance Panel decides in favor of the grievant, the Manager may appeal to the Administrator or her designee, if the Panel's decision is arbitrary, capricious or contrary to law. The Manager should contact his/her Regional Counsel immediately if he/she wants to appeal a Grievance Panel Decision.
Step 4: Inspecting the Apartment
Before any non-payment case is forwarded to the Legal Department the manager shall inspect the subject apartment to determine whether there are code violations. If code violations are present they must be corrected before the case is referred to the Legal Department. The Legal Department will not normally commence an eviction action while there are outstanding code violations. The Manager will then complete a form entitled "Manager's Report to Legal Department on Condition of Apartment" (Form UO-04) indicating the results of the inspection as well as a summary of any information available (such as past work orders and reports of maintenance defects from staff and residents) as to past code violations for the Resident/occupant in the subject apartment.
The inspection step serves two purposes. One is to provide the Legal Department with a good indication of the condition of the apartment during the period when the use and occupancy was not being paid. The other purpose is to expedite the correction of code violations so that the apartment meets code standards by the time the case goes to court.
If conditions in an apartment are sufficiently bad, the Resident/occupant can file claims based on those conditions against the BHA as part of the court eviction action. In such a case, the BHA could end up owing money to the Resident/occupant, rather than the Resident/occupant owing the BHA.
Step 5: Transmittal to Legal Department
The file, along with a "Memorandum of Transmittal for Non-Payment Evictions" (Form UO-07), shall then be forwarded to the Legal Department for the commencement of an eviction action. At a minimum, the following must be in the file.
a. Notice of Private Conference (Form UO-01)
b. Summary of Private Conference (Form UO-03)
c. Notice To Quit For Non-payment of Use And Occupancy (Form UO-04)
d. Copy of Use and Occupancy Agreement, Agreement for Judgment and Agreement as to Amount of Use and Occupancy (Form UO-02)
e. Manager's Report on Condition of Apartment (Form UO-05)
f. Memorandum of Transmittal for Use and Occupancy Eviction (Form UO-07)
g. Manager's Checklist for Use and Occupancy Evictions (Form UO-06)
h. Military Affidavit
Files not containing each of the appropriate items will be returned to the development for completion; thereby, slowing down the eviction process.