Legal Opinion: GCH-0038

Index: 2.505

Subject: Preference Rule\--Assisted Housing

January 29, 1992

Mr. Christopher W. White

Community Legal Aid Society

235 S. Queen Street

Dover, Delaware 19901

Dear Mr. White:

This is in response to your November, 26 1991, letter

concerning the certification of involuntary displacement by the

Delaware State Housing Authority (DSHA). Specifically you are

concerned with the priority status assigned by the DSHA to your

client, Barbara Winters.

In selecting applicants for housing assistance, PHAs are

required to apply Federal preference requirements (e.g., 24 CFR

§ 887.157). However, PHAs and IHAs may use State or local

preferences as a means of selecting among Federal preference

holders (24 CFR § 887.157(b)(iii). For example PHAs and IHAs may

rank the preferences (e.g., a PHA may provide that those living

in substandard housing have a greater need than those paying more

than 50 percent of family income for rent).

The Delaware State Housing Authority (DSHA) ranks the

preferences and in doing so gives greater weight to the

involuntarily displaced than to those paying more than 50 percent

income for rent. In applying the preferences to your client,

Ms. Barbara Winters, DSHA initially classified Ms. Winters as

first priority based on her having been involuntarily displaced.

Subsequently, but prior to the verification of her classification

as involuntarily displaced, Ms. Winters informed the DSHA that

she was living in a mobile home. The DSHA informed Ms. Winters

that she was no longer eligible for a first priority because she

lived in standard replacement housing. Ms. Winters was

reclassified as second priority on the basis of her paying more

than 50 percent of her income for rent.

HUD regulations provide that \"an applicant qualifies for a

Federal preference if . . . the applicant has been involuntarily

displaced and is not living in standard, permanent replacement

housing\" (24 CFR § 887.157(c)(i)). Standard, permanent

replacement housing is defined as decent, safe, and sanitary;

adequate for the family size; and occupied pursuant to a lease or

occupancy agreement. 24 CFR § 887.157(c)(5)

It is your contention that Ms. Winters did not find replacement

housing, in accordance with 24 CFR § 887.157(c)(5). You argue

that standard, permanent replacement housing does not include

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housing for which an applicant pays as rent more than 50 percent

of his or her income. In support of this contention you cite the

Final Rule, (Preference in the Provision of Housing to Families

Who Are Occupying substandard Housing, Involuntarily Displaced,

or Paying More that 50 Percent of family Income for Rent), 53 FR

1122 (page 1132 of the preamble) and HUD\'s response to a

commenter who thought it unfair that under the rule a family

could lose its involuntary displacement preference before

verification. In response HUD stated:

The proposed rule excluded such a family because, . . .

the family is living in standard housing, and (assuming

that the family is not paying more than 50 percent of

its income for rent) no longer has the urgent need for

housing assistance that the preferences are designed to

address.\"

You understand HUD\'s response to mean that if a displaced family,

moves into replacement housing, for which it must pay more than

50 percent of its income, prior to verification of its status as

an involuntarily displaced family, the family continues to

receive a preference as involuntarily displaced.

A family which finds standard, permanent replacement housing

in accordance with § 887.157(c)(5) does not continue to qualify

for a preference as involuntarily displaced because it pays more

than 50 percent of its income as rent for such housing. The

parenthetical phrase in the quoted language refers to the

family\'s continued need for housing assistance that the preferences

are designed to address and not the family\'s continued

status as involuntarily displaced. The family\'s status as

a displaced family ends after securing housing in accordance with

24 CFR § 887.157(c)(5). Although initially displaced, the

rules regarding the exception (i.e., that they find standard

replacement housing) have been met.

With regard to the issue, what is considered \"adequate for

family size\" in determining standard, permanent replacement

housing, the Department expects PHAs to use the applicable

occupancy standards contained in HUD regulations and handbooks,

and as set out in the PHAs administrative plan (see Section

887.61). However, the Federal preference requirements were

enacted after many of the handbooks were written and thus the

handbooks do not necessarily reflect the current standards of the

program.

The handbook to which you referred, 7420.7 (Public Housing

Agency Administrative Practices Handbook for the Section 8

Existing Housing Program) governs the Section 8 Existing Housing

Program, which does not include the Section 8 Voucher Program,

for which Ms. Winters applied. Section 887.251 provides the

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minimum housing quality standards for the Section 8 Voucher

Program. Section 887.251(c)(2) provides that:

A dwelling unit must contain a living room, kitchen

area and bathroom. The dwelling unit must contain at

least one bedroom or living/sleeping room of

appropriate size for each two persons.

A room which qualifies as a living room under § 887.251(c)(2)

is not disqualified as such because it is also used

as a sleeping area. We note that § 887.251 is a minimum

standard and a PHA may set a higher one in its administrative

plan. It is our opinion that the unit as described in your

letter meets the minimum standards of 887.251(c)(2).

If you have any further questions regarding the DSHA\'s

implementation of the housing quality standards for the Section 8

Voucher Program or implementing the preference rules we suggest

you request a copy of the DSHA\'s administrative plan. Any further

correspondence to HUD on this matter should be addressed to:

Sidney B. Severe, Director

HUD Philadelphia Regional Office

Liberty Square Building

105 S 6th Street

Philadelphia, PA 19106-3392

I hope information provided has been helpful.

Very sincerely yours,

Michael H. Reardon

Assistant General Counsel

Assisted Housing Division