The procedures in this section are to be used to initiate evictions for cause against individuals who occupy BHA apartments under a use and occupancy agreement. Such individuals usually will be either:
1. Emergency transferees (when they occupy an apartment under a use and occupancy agreement);
2. Applicants for residual tenancy (who occupy an apartment under a use and occupancy agreement); or,
3. Households that occupy an apartment under a court agreement (an Agreement of Judgment) entered in a cause or nonpayment eviction action.
This procedure is not to be used:
1. To enforce court agreements (Agreements for Judgment) in non-payment of rent cases or
2. To initiate eviction for failure to pay use and occupancy 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 the 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 or a nonpayment eviction action 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 comply with the terms and conditions of the use and occupancy agreement entitles the BHA to commence an eviction proceeding 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 UOC-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 Cause for Non-Compliance with Use And Occupancy Agreement
The eviction process is begun promptly after the Manager learns of or receives information which indicates that the occupant has engaged in activity that violates the terms and conditions of the use and occupancy agreement. The Manager begins the eviction process by sending a "Notice of Private Conference for Non-Compliance With Use and Occupancy Agreement" (Form UOC-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 activity or incident which constitutes a violation or breach of the use and occupancy agreement must be 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 date the Resident/occupant receives the notice of private conference and the date the private conference is scheduled, at least seven days is recommended.
At the private conference, the Manager meets with the Resident/occupant and 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 comply with the terms of the use and occupancy agreement. Typical subjects appropriate for discussion include: the person who engaged in the activity is not a member of the household, that the Resident/Occupant had no prior knowedge of the individual's propensity to commit such acts, the incident did not happen as reported or the resident/occupant has a legal defense to the action.
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 but should not delay 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, regarding the occupant's future conduct or the future conduct of a guest or household member. Second, the Manager may seek to obtain an agreement that the resident will vacate the apartment as of a definite date. In this case the Manager should have the resident sign a Surrender and Release. (See Section 12)
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 should make a determination to proceed with eviction and serve the Resident/occupant the notice described in Step 2.
If an agreement is reached, it is important to use the "Agreement as to Compliance With Terms and Conditions of Use and Occupancy Agreement." (Form UOC-02). If an agreement is modified, a new form should be used, and the same procedure followed. 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-Compliance With Use And Occupancy Agreement" (Form UOC-03) and the manager shall proceed with eviction.
Regardless of the outcome of the Private Conference, the Manager should document the conference by completing a "Summary of Private Conference" form (Form UOC-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-compliance With Use and Occupancy Agreement (7 Day Notice to Quit).
The "Notice to Quit for Non-Compliance With Use and Occupancy Agreement" (Form UOC-03) shall be served on the Resident/occupant as soon as practicable after the private conference. The Notice to Quit states the reasons for termination of the use and occupancy agreement. 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 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, except when the resident or remaining member of a resident household has requested a grievance hearing.
If an agreement is not reached regarding future compliance with the use and occupancy agreement within 7 days after the 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 Resident 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 or remaining member of the occupant's household has failed to comply with the terms of the use and occupancy agreement. If the Panel determines that the grievant has breach or violated the terms of the agreement and there is no satisfactory agreement reached as to future complaince, then the Panel should vote to permit eviction of the Resident.
As the case with the Private Conference, the grievance hearing should be an opportunity to seek an agreement with the Resident regarding future compliance or an agreement to voluntarily vacate. 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/occupant has violated the terms of the use and occupancy agreement, then the decision will ordinarily be to proceed with eviction. It is not necessary to serve a new Notice to Quit.
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 grievant chooses to appeal, the court eviction process cannot begin until after the grievance appeal has been 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 Regional Counsel immediately if he/she wants to appeal a Grievance Panel Decision. In the case of an appeal, the court eviction proceeding cannot begin until the grievance process, including the appeal, has been completed and unless the BHA hearing officer decides in favor of the BHA.
Step 5: Transmittal to Legal Department
The file, along with a "Memorandum of Transmittal for Non-Payment Evictions" (Form UOC-06/7), 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 UOC-01)
b. Summary of Private Conference (Form UOC-03)
c. Notice To Quit For Non-Complaince with Use And Occupancy Agreement (Form UOC-04)
d. Copy of Use and Occupancy Agreement, Agreement for Judgment and Agreement as to future compliance with Use and Occupancy (Form UOC-02)
e. Manager's Report on Condition of Apartment (Form UOC-05)
f. Memorandum of Transmittal for Use and Occupancy Eviction (Form UOC-07)
g. Manager's Checklist for Use and Occupancy Evictions (Form UOC-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.