Don’t Omit Details in Pre-Termination Notice

Showing that residents committed a substantial or material lease violation isn’t enough to evict them from federally assisted housing. You must also furnish a proper lease pre-termination notice letting residents know exactly what they did wrong. If the notice isn’t clear and specific enough, it will be deemed defective. And if the notice is defective, you won’t be able to evict the residents no matter what violations they committed.

Pre-Termination Notice Must Specify Lease Violations

The key HUD regulation is Section 247.4 (see below), which sets out the elements a lease pre-termination notice must contain, including Section 247.4(2), which requires that the notice “state the reasons” for termination “with enough specificity so as to enable the tenant to prepare a defense.” A general description of what the resident did wrong won’t do. The notice must also cite the exact provision(s) of the lease you claim the resident violated.

Many an owner has learned this lesson the hard way. One example is the New York owner whose federally subsidized resident disturbed her neighbors and didn’t pay rent for eight months. That alone would have been justification to evict. But then the resident took off for a weekend leaving her bathtub running and a sponge clogging the drain, creating a massive flood that caused major property damage.

The owner decided that enough was enough and sent the resident a pre-termination notice giving her 15 days to clear out. The notice catalogued all of the resident’s different offenses but didn’t cite the parts of the lease those actions violated. So, the resident claimed the notice was defective.

The court agreed. Section 247.4(2) requires that the notice clearly state the reasons for termination but doesn’t say it must cite the lease, the court acknowledged. (Nor, for that matter, does HUD Handbook 4350.3m.) However, court cases have interpreted the law as requiring the owner to specify which provisions of the lease the resident violated. Since the owner’s notice didn’t do that, the court chucked the eviction claim [Fairview Co. v. Idowu, 148 Misc. 2d 17, 559 N.Y.S.2d 925 (Civil Ct. Richmond Co. [1990]).

Resident’s Right to Due Process

Even though the Idowu case is over 30 years old, courts still follow it to this day when deciding if owners met Section 247.4(2) specificity rules. And it’s not just about being picky. The courts recognize that federally assisted tenancy is a property right that can’t be taken away without due process of law. A fundamental rule of due process is that the accused must know exactly what he’s being charged with so he can either cure the violation or prepare a legal defense. Residents facing eviction can’t do this unless they know the precise provisions of the lease they’re being accused of violating.

Takeaway

When evicting a resident, make sure your lease pre-termination notice not only describes the alleged lease violation but also spells out the part of the lease you believe he violated. Although citing the actual lease provision number—such as “Section 18(a)(3)”—is the bare minimum, attorneys recommend citing the actual lease language and, if possible, attaching a copy of the provision to the pre-termination notice.

HUD Lease Pre-Termination Notice Regulations

(24 C.F.R. §247.4)

The landlord’s determination to terminate the tenancy shall be in writing and shall: (1) State that the tenancy is terminated on a date specified therein; (2) state the reasons for the landlord’s actions with enough specificity so as to enable the tenant to prepare a defense; (3) advise the tenant that if he or she remains in the leased unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense; and (4) be [properly] served on the tenant.