Remaining Widow Doesn't Qualify for Elderly Housing

Facts: A Section 202 site that provides supportive housing for the elderly sought to evict the wife of a deceased resident. She moved into the unit with her husband in May 2004 and lived there continuously for the past 14 years. Her husband, the tenant of record and head of household, died in September 2013 when his wife was 55 years old. She is currently 60 years old. HUD regulations define “elderly” as 62 years of age or older at the time of initial occupancy.

The owner asked the court for a judgment without a trial on the grounds that the widow can’t remain in the unit after the death of her husband because she doesn’t meet the definition of “elderly.” The owner also asked the court for use and occupancy charges, not under any provision of law, but because it “cannot afford to lose this much income and remain operational” as a not-for-profit Housing Development Fund Corporation.

The widow claimed that the owner, by referring to her as the “tenant,” “spouse,” and “co-head [of household]” in correspondence with the Department of Social Services (DSS), by accepting shelter payments made by DSS on her behalf for two years, and by accepting documents for recertification, has waived its right to proceed against her as a licensee.

Ruling: A New York court ruled in the owner’s favor.

Reasoning: The court found that the site is designated by law as housing for the elderly and this designation couldn’t be waived. In this case, the site’s actions didn’t create a tenancy for the widow by waiver. The purpose of the Section 202 program is to provide housing for the “very low income elderly,” and all units in the project must be made available to individuals who meet this definition. And an “elderly person” is defined as “a household composed of one or more persons at least one of whom is 62 years of age or more at the time of initial occupancy.”

The Housing Act of 1959 was amended in 1990 and further narrowed the class of people that Section 202 housing is meant to benefit. Whereas “elderly families” previously included “the surviving member or members of any family . . . who were living, in a unit assisted under this section, with the deceased member of the family at the time of his or her death,” the amendments made clear that at least one member of the household must at all times be 62 years of age or older.

The owner also pointed out that, in addition to federal law, a HUD Regulatory Agreement, the deed, a Land Disposition Agreement, and a HUD Use Agreement limit occupancy of the premises to persons who are 62 years of age or older. All of these documents, which were executed in 1995, limit occupancy to elderly families and individuals as defined by Section 202 of the United States Housing Act, as amended in 1990.

• Eugene Smilovic Hous. Dev. Fund Corp. v. Lee, October 2018