If you have been following my columns for a while you’ve heard me note how the subject of compliance, and the day-to-day issues associated with it, have become more complicated. The fact that so much of what is operational today exists as notices published separate from the HUD handbooks is part of the reason. (HUD Handbook 4350.3, Rev. 1 was most recently changed in 2009; the Public Housing Occupancy Guidebook hasn’t had any changes since its complete revision in 2003.) As a result, ‘compliance orphans’ are on the rise—questions that don’t seem to have a home in any published guidance.
The decrease in Management and Occupancy Reviews (MORs) resulting from the ongoing controversy surrounding Performance Based Contract Administrator (PBCA) contracts has a role in this as well. Although HUD won its case on the PBCA issue in the US Court of Federal Claims, as of this writing the plantiffs have announced they are appealing the court’s ruling. I’ve always felt that when an MOR is done well, the results are beneficial for all concerned. When they’re not done at all, past history indicates that a top-performing management organization can lose its edge very rapidly if no one is paying sufficient attention.
The complicated nature of compliance is aptly demonstrated by some recent questions that have come to NCHM via our eHotline. Several recent examples involve a household that is splitting–usually, though not exclusively, as a result of pending divorce.
When a household is splitting up, I’ve consistently stated that management’s role is to let the household work out their issues. One question, for instance, focused on the issue, “Which one of us gets to stay in the apartment?” Since neither HUD’s guidelines nor regulations address that specific issue, management staff should stay out of it unless the split is associated with a claim of one or the other party to protection under the Violence Against Women Act (VAWA).
You can look through thousands of pages of HUD issued material, and I guarantee you will not find a single reference to owner/agent/PHA responsibility for determining the issue of “Who gets the apartment?” Likewise, there is no reference to the propriety of a coin toss by management in making that determination, or to using “Rock, Paper, Scissors” as a viable alternative. If the household that’s splitting wants to use that methodology they can, of course, do so.
What focuses my attention on this are the numerous questions I’ve gotten about what happens after the household decides who gets the apartment. The individual(s) who have chosen to leave the unit request management to provide them with a different unit at the same property, and request a unit transfer. A unit transfer as defined by HUD is a transfer of the household from one unit to another. The individual(s) who have chosen to leave the unit are not eligible for a unit transfer because they’re establishing a tenancy separate and apart from the individuals with whom they constituted a household. If you automatically give them a unit as a transfer, you’re not in compliance with HUD program rules, including the provision that you selelct households in proper order from the waiting list. The new household should apply for a unit, and be placed on the waiting list in a manner consistent with your tenant selection plan.