I get a lot of email from people seeking advice on compliance issues. Understandably, they usually ask that I provide a citation from Title 24 of the Code of Federal Regulations (24 CFR) or the applicable HUD Handbook or Notice to support my advice. Sometimes my response is, “There is none.”
HUD recognizes that it is impractical (if not impossible) to try to issue guidelines for each and every scenario a housing manager may encounter. Instead it relies on property owners and managers to develop sensible policies to fill in the gaps in left in the published guidance. And I would argue that this is a good thing for our industry.
Here are a few examples of questions I’ve fielded recently that HUD leaves to owners/agents/PHAs to decide on their own:
How long can a resident be away from their unit without losing their assistance?
How should we deal with a resident who wants to move their girlfriend or boyfriend in?
How do we handle an application from someone who brought a lawsuit against the property when they lived here before?
Increasingly, however, I’ve had any number of questions that can be neither answered nor justified on the basis of a notice, regulation, or handbook guidance. I am going to argue that this is a good thing for our industry.
In the movie, “A Few Good Men,” a Marine played by Noah Wyle was asked where in his handbook anything was written about going to the Mess Hall. He replied that there wasn’t any such reference, and that when it came time to eat he simply followed everyone else.
The Public Housing Occupancy Guidebook and HUD Handbook 4350.3, Rev. 1, to name just two of HUD’s handbooks, are documents of a substantial size. Title 24 of the Code of Federal Regulations now occupies several bound volumes consisting of thousands of pages.
So imagine, if you will, any effort by HUD to address every actual and potential issue that could come up in the course of day-to-day housing management. Regulations and handbooks would possibly quadruple in size leading to some justifiable concerns about deforestation. And HUD would probably be changing things twenty or thirty times.
Instead, there are issues that HUD leaves it to the owner/managing agent/PHA to decide and create their own, well written policies. Here are but a few examples:
1. How long can a resident be away from their unit without losing their assistance? There’s nothing in regulation or guidelines about this in general, although there is a provision in the HUD Model Lease that the unit has to be the “sole and primary residence” for the tenant.
2. How should we deal with a resident who wants to move their girlfriend or boyfriend in? There is some guidance on this, but it is limited to issues of tenant screening. HUD doesn’t require an “additions to the household” policy — but I have always felt it is a good idea provided such a policy is sufficiently flexible and doesn’t violate civil rights regulations.
3. How do we handle an application from someone who brought a lawsuit against the property when they lived here before? Again, there’s nothing specific in regulations or guidelines save for repeated references to the Tenant Selection Plan or Admissions and Continuing Occupancy Policy (ACOP — for PHA’s). To this, I would add getting legal counsel. If the lawsuit was on fair housing grounds, it is quite possible that any adverse action on an application could be regarded as a form of retaliation.
Most recently, of course, we have had Upfront Income Verification (UIV) and the Violence Against Women Act (VAWA). Both regulations will require written policies, particularly VAWA. VAWA has been in effect for a while now, and UIV will be implemented on September 30th. There could be changes to the HUD handbooks, or there might not (remember the Fair Housing Act Amendments were issued in regulation in January of 1989 but the HUD Handbook 4350.3 wasn’t changed to reflect this until several years later).
Compliance is generally thought of as a black and white issue; i.e., You’re either in compliance or you’re not. There’s more than a grain of truth in that — but not the whole truth. The development of sound policies that compliment compliance, and go beyond it, are also part and parcel of being a housing management professional. Those policies require careful thought and consideration throughout a process that goes from drafting, to implementation, to regular monitoring.