[CIM-0107 (Index
3.300)](http://www.hud.gov/offices/adm/hudclips/lops/CIM-0107LOPS.doc)

Lease Provisions\--Drug-Free Housing \[FOIA Exemption 4: Names of
Private Parties

Withheld\]

Legal Opinion: GHM-0089

Index: 3.300, 3.320, 3.325, 3.340

Subject: Lease Provisions\--Drug-Free Housing

\[FOIA Exemption 4: Names of Private Parties Withheld\]

September 2, 1993

MEMORANDUM FOR: James J. Tahash, Director, Planning and

Procedures Division, HMHP

FROM: David R. Cooper, Assistant General Counsel,

Multifamily Mortgage Division, GHM

SUBJECT: Lease Provision for Drug-Free Housing

I am writing in connection with the attached letter from

, Vice President, of Property Management,

Inc., seeking the Department\'s approval for the continued use of

certain language regarding illegal drug use in the Department\'s

Model Lease for Subsidized Programs (\"Model Lease\"), that appears

in Appendix 19a of HUD Handbook 4350.3, Occupancy Requirements of

Subsidized Multifamily Housing Programs. (Attachment A.) The

language that Ms. would like to continue to employ was

approved for \'s use by this office in July of 1991. We

have reviewed the incoming and determined that resolution of this

matter involves a policy determination, therefore, we are

forwarding Ms. \'s request to your office for direct

handling. We have advised Ms. , under separate

cover, that we have so forwarded her request, and we ask that you

copy this office, as well as Michael Reardon\'s office, on your

response to her.

We believe that Ms. \'s request stems from a

February 8, 1993 memorandum that this office sent, with your

office\'s concurrence, to the Richmond Field Office. (Attachment

B.) In that memorandum, we informed the Richmond Field Office

that revised chapter 4 of Handbook 4350.3, CHG-22, which was

effective on June 30, 1992, mandates the use of precise language

regarding illegal drug activity. The Department\'s present policy
mandates

that section 23(b) of the

Model Lease contain the following language: \"Any termination of this

Agreement by the Landlord must be carried out in accordance with HUD

regulations, State and local law, and the terms of this Agreement. The

Landlord may terminate this Agreement only for: \... criminal activity
that

threatens the health, safety, or right to peaceful enjoyment of the
premises

by other tenants or any drug-related criminal activity on or near such

premises, engaged in by a tenant, any member of the tenant\'s household,
or any

guest or other person under the tenant\'s control; \...\" (Emphasis
added.)

(See page 4-5 and revised page 13 of 15 of Appendix 19a of revised
chapter 4

to Handbook 4350.3, CHG-22.)

Accordingly, we further indicated that this office can no longer approve

individual lease

provisions regarding illegal drug activity because the Department

has determined that, rather than approving such individual lease

provisions, the language set forth in revised chapter 4 to

Handbook 4350.3, CHG-22, must be utilized. Revised chapter 4 of Handbook

4350.3, CHG-22, states that the lease

provision set forth in footnote 1 of this memorandum is mandatory,

and HUD Field Offices and State Agencies may not approve changes to it.

(See paragraph 4-2(d)(3) and Exhibit 4-3, pages 4-3 and 4-21,
respectively,

of revised chapter 4 to Handbook 4350.3, CHG-22.) Finally, we advised

the Richmond Field Office that it was the policy of the Office of

Housing that projects which have incorporated lease provisions

regarding illegal drug activity that were previously acceptable

to the Department must revise their leases to conform to the

language presently set forth in revised chapter 4 of Handbook

4350.3, CHG-22. In accordance with this information, on March 2,

1993, Richard D. Warren, Chief of the Loan Management Branch in

the Richmond Field Office, advised that its Model Lease had

to conform to the language that presently appears in revised

Chapter 4 of Handbook 4350.3, CHG-22. (Attachment C.)

Since Ms. seeks to continue to employ

language that, while once acceptable to the Department, is

presently at variance from that required by revised chapter 4 of

Handbook 4350.3, CHG-22, she is in effect seeking a waiver of the

current Handbook on this issue. As her request involves a

Handbook, rather than a statute and or regulation (which, of

course, are not waiveable unless there is a statutory or

regulatory provision for waiver), and because the language she

seeks to continue to use was previously approved by this office,

we are forwarding her request to your office for direct handling.

Of course, any decision to grant Ms. \'s request

would have to comply with section 106, \"Waiver of Regulation

Requirements and Handbook Provisions,\" of the Department of

Housing and Urban Development Reform Act of 1989.

Finally, we have one further thought in connection with this

matter. Ms. requests that the Department \"allow \[

\'s\] previously approved drug language to remain intact.\" It

seems (based upon the March 2, 1993 letter from Mr. Warren that

is referenced above), that seeks to include both the language

on drug use (as set forth in footnote 1 of this memorandum) that

is currently required by revised chapter 4 of Handbook 4350.3,

CHG-22, as well as the language that was previously approved by

this office for \'s use in July of 1991. While the

provisions are similar, they are not identical, and we would

point out that it is generally better not to have two separate

contract provisions that deal with the same issue. Treatment of

a contract term, such as lease terminations for illegal drug

activity, in only one manner within a contract, helps to ensure

that the standards and requirements of the contract are clearly

defined.

Please contact Frances MacFarlane, of my staff, at

\(202\) 708-4107 with any questions you may have on this matter.

Attachments