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Unauthorized Occupancy in a Section 8 Unit

Two’s company, three is a crowd…unless the third person is pitching in for the rent and other utilities.  But what do you do when you have a person in a Section 8 unit who is not on the lease?  Unauthorized occupancy is the most difficult thing in the world to prove in affordable housing. You try to follow-up on every case to prove that an unauthorized person is living in the unit and the tenant insists that he or she is just a “guest.” The burden of proof on the O/A is so high, no matter where you live.

Here is a common scenario:  we suspect that a tenant in our community has her boyfriend living in the unit and has not added him on the lease. We sent notices to them advising of our suspicions, and they’ve brought over car registrations showing that the male “lives” elsewhere.

The question then becomes as follows: what proof do you require when your tenant claims that long-overstayed “guest” is not living in the unit? I know it’s one of the hardest things to prove in a court of law, when this person is at that unit every day, day in and day out, and your convictions are that the tenant is not being honest. We also get calls from other tenants living nearby that say “so and so lives there.” What process do you follow? Exactly how do you handle this kind of fraud?

Generally speaking (although each case is more or less different), when I receive this type of question from our clients I suggest that they try to get as much information as possible from the complainant about the alleged unauthorized occupant to, among other things, ensure that the allegation is  legitimate. Then follow up with the tenant being accused of harboring the unauthorized occupant.

The tenant usually denies that the individual is residing in the unit and claims that the individual has an apartment elsewhere and is simply a “guest” of the tenant.  Since tenants are permitted to have guests, the guest may visit, may sleep over, etc., but you must be careful in your tone and accusations when addressing the situation with the tenant. You don’t want to escalate the issue into a confrontational issue.

At a minimum, the O/A should obtain a signed/notarized statement from the tenant confirming that the individual is not residing in the unit including the understanding of the HUD rules regarding unauthorized occupancy. The O/A should request to know the “guest’s” actual residential address.

The tenant should be required to provide other documentation to prove that the individual resides elsewhere, such as mail to their “real” address, a utility bill, a lease, a signed/notarized statement from the persons they are residing with and a signed/notarized statement from the allegedly-unauthorized individual as well. All documentation must be maintained in the tenant file.

If you are able to demonstrate (not necessarily “prove”) unauthorized occupancy and the unauthorized occupant has income, and the tenant as a result received a significant amount of excess subsidy, you may want to report the matter to the OIG. Be sure that you have very accurate information/documentation; otherwise the OIG will chalk it up to a “he said/she said” situation.

The few times that tenants have confessed to unauthorized occupancy, we usually make sure that the unauthorized occupant departs or, if the tenant wishes, add the occupant to the lease as long as he/she meets Sec. 8 program eligibility requirements and screening criteria.  A retroactive action will take place when the individual has income so that the funds can be reclaimed for HUD.

According to HUD, you must a policy if you plan to verify household composition. See HUD Handbook 4350.3 R1, C3, Paragraph 3-27.

“A. Owners may seek verification of family composition only if the owner has clear written policy. Verification is not required.

B. Owners may use a policy to verify family composition to determine whether children reside in the household 50% or more of the time, as well as determine the appropriate unit size for the family.

C. Owners may also want to verify the departure of family members reported to have moved out by reviewing the lease signed by the departing member for a new residence, a new driver’s license or utility bill showing the departed member’s name and a new address **or accepting a signed affidavit from the remaining head of household when reasonable efforts to obtain verification have been exhausted.**

D. If an owner determines it necessary to verify family composition, information may be collected from sources listed in Appendix 3.”

We would send a notice in accordance with Paragraph 7-12 and then use a policy in place.

Here is some sample verbiage you can use (and modify) for your “Guest Policy”:

Residents are permitted visitors to their dwelling unit in an amount not to exceed fourteen consecutive calendar days and a total of twenty days per year. Residents are required to inform Management when a visitor is expected to stay in the unit. During the term of tenancy, Management shall be notified in writing if guests of the household are expected to stay in the unit for more than 14 consecutive calendar days.  If the visitor owns a vehicle and needs to park in our lot, we require a copy of the vehicle registration. Only authorized and registered vehicles are permitted to park here and any other vehicles not registered with us will be towed at the owner’s expense.

As O/A’s, how are you supposed to advocate for your tenants and protect them?  Who knows if this unauthorized occupant could be a fugitive, an active addict or a convicted felon known to also be on the National Register of Sex Offenders?  This is why we have and implement a Tenant Selection Policy prior to a tenants move in.  To have an unauthorized person residing on the property circumvents that safety net created by the Tenant Selection Plan.

I would be interested in knowing what others do, especially in jurisdictions where the courts are more conducive to enforcing the lease.

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