Guests

1. Who is considered a guest in public housing?
2. May I have guests in public housing?
3. If I am disabled and live in public housing, can someone sleep over to care for me?
4. Am I responsible for the conduct of my guest in public housing?
5. What can I do if the housing authority has a "no-trespass" order against my guest?
6. What can I do if the housing authority says I have an "unauthorized occupant"?

Who is considered a guest in public housing?

In general, a guest is someone who does not appear on your lease and who is not a member of your household. A guest is defined differently, however, depending upon whether you live in state or federal public housing.

Important:

Just because someone is related to you does not mean that he or she is automatically a household member. You must consult with the housing authority before letting anyone move in with you. Many tenants get into trouble with the housing authority when they allow people to move in without requesting permission.

State public housing

If you live in state public housing, a guest is defined as a person who is in your housing development at your invitation or the invitation of someone else in your household. The individual does not have to be staying in your apartment.¹

Federal public housing

If you live in federal public housing, a guest is defined as a person who is temporarily staying in your apartment with your permission or the permission of someone else in your household.²

Grandchildren

If your children or grandchildren are not a part of your household or on your lease, they are most likely guests. Your grandchildren could be considered household members (and therefore not guests) if they routinely live with you. You must, however, inform the housing authority that they live with you and the housing authority must calculate your rent to reflect the fact that they live with you.

May I have guests in public housing?

You have a right to have guests visit you. But you need to be familiar with what rules apply to you, because if the housing authority suspects that someone is staying with you longer than allowed, they may try to evict you for having an "unauthorized occupant." They may also claim that you have not reported all household members and income and require you to pay more rent.

In general, there are no rules that limit when or for how long a guest may visit you during the day. There are, however, rules that govern the number of nights a guest may stay (either living with you temporarily or staying for an extended period of time). The rules are different for federal and state public housing.

Note:

In no case may the number of guests go above the number of people allowed to occupy an apartment under the State Sanitary Code.³

State public housing

In state public housing, there are specific regulations that say how long a guest can stay in an apartment. A guest may not stay overnight longer than 21 nights during any 12-month period. You may request an extension of that time if you have a good reason (or good cause) and you request it before the 21-night limit is up. If the housing authority gives you permission, it must do so in writing. Be sure to ask for a copy of this letter. You will need it if the housing authority later accuses you of violating the lease.

Federal public housing

Housing authorities establish their own policies about guests. There are no specific rules about how many days per year are allowed. To find out what your housing authority’s policy is, read your lease. It should state how long someone may stay in your apartment, how many guests you may have at one time, and what procedures you must follow if you want a guest to stay longer than what your lease allows. Review your lease very carefully before you allow a guest (even a family member) to stay in your apartment for any amount of time. Overly restrictive guest policies (such as those which require housing authority permission for any overnight guest) can be challenged in court.⁴

If a guest is staying for a period that is beyond the limitation contained in the lease, you may want to consider requesting that the guest be added to your lease. The housing authority may screen such a person (determine whether he or she is likely to be a good tenant.) The housing authority’s approval is needed before the person is added to your household. There may also be cases where the tenant should consider whether the guest is going to be in longer-term live-in aide, needed because of the disability of someone in the household.

If I am disabled and live in public housing, can someone sleep over to care for me?

If you are disabled and you require the assistance of a live-in aide, then you and the live-in aide may be eligible to occupy your apartment. To qualify as a live-in aide, the person who will be assisting you must be essential to your care and well-being and be living in the unit in order to provide necessary support services.⁵ Under state rules, a personal care attendant must also be paid for the fair value of such assistance and would not live in the unit except to provide such assistance. You must ask the housing authority for permission to have a live-in aide.

Live-in aides are held to the same standards as other household members in terms of eligibility, admission, and conduct. A live-in aide’s income, however, is not calculated for the purposes of determining rent. Also, if your disability ceases or you no longer qualify for the assistance of a live-in aide, your aide will have to vacate the unit and will no longer be eligible or allowed to live with you.

In federal housing, a live-in aide who is residing in the apartment must be counted for purposes of a housing authority determining your unit size.⁶ If the aide is part-time and only there at night or certain days, the issue of unit size may still come up.

If the live-in aide is a relative, you will need to figure out whether to ask that they be approved as a live-in aide (which means that the person has another place to live and their income will not be counted when figuring out your rent).⁷ Or whether the person should be added as a household member (which means that they do not have another place to live and their income will be counted when figuring out your rent.

Am I responsible for the conduct of my guest in public housing?

When your guests are on housing authority property, they are subject to the same rules as you are and you are responsible for their conduct. If your guest breaks the rules, the housing authority may bring an eviction action against you.⁸

Note:

In state public housing, a tenant can be evicted only for the conduct of a guest where the tenant knew or should have known that there was a possibility that a guest would misbehave.⁹

Specifically, your guests may not do the following things:

• Disturb other tenants and conduct themselves in a way that is not peaceful, including making unreasonably loud noises.¹⁰
• Engage in criminal activity in the apartment, on housing authority premises or near the property.¹¹
• Damage the unit or any of the housing authority’s property.¹²
• A tenant can be required to pay for any damages caused by a guest.¹³

State public housing

If you are in state housing, your guest may also not do the following things:

• Injure, threaten, or unreasonably disturb housing authority officers and employees.¹⁴
• Misuse electric, heating, plumbing, or other utility services or install any major appliances or waterbeds without permission.¹⁵
• Keep pets without permission.¹⁶
• Alter or perform additions to the unit.¹⁷
• Interfere with smoke detectors or other fire safety equipment.¹⁸

Federal public housing

In addition to the above, if you are in federal housing, your guests may not engage in any drug-related criminal activity on or off the premises.¹⁹ A tenant may be evicted for a guest’s drug activity in or away from the apartment even if the tenant did not know this would occur.²⁰

If the wrongdoer was a guest and the housing authority doesn’t have some proof that you knew about the activity, or if the activity did not take place on or near housing authority property, as a matter of state law you would get the opportunity for a grievance hearing before you are taken to court. This is true even if you are a federal tenant.

The law is not yet clear about whether, once the case gets to court, you would have the usual rights under the state law to try to prevent eviction by showing: 1) that you did not know or have a reason to know of a guest’s or household member’s wrongdoing, or 2) that you took all steps within your power to prevent future wrongdoing once you knew about it. Some courts in Massachusetts have said that federal tenants don’t have these state law rights.

What can I do if the housing authority has a "no-trespass" order against my guest?

Massachusetts specifically allows housing authorities to go to court and ask for a "no-trespass" order to prohibit non-residents from being on housing authority property.²¹ A public housing authority may do this only if the visitor has:

• caused serious physical harm to a tenant or housing authority employee,
• repeatedly destroyed, vandalized or stole a tenant’s or housing authority property,
• had weapons or explosives,
• sold drugs, or
• committed a civil rights crime on or near housing authority property.

The housing authority must show that the guest's behavior is likely to continue or poses a serious threat to the safety of people in the development or to housing authority employees.²²

To get a no-trespass order against a non-resident, the housing authority must file a complaint against the non-resident in Housing or Superior Court. If the complaint is against your guest, you are entitled to be heard in court. Keep in mind, if there are other court orders (such as a visitation order that would be affected by a no-trespass order), you should bring this to the housing authority’s or court’s attention and ask that the no-trespass order be modified so that it is not in violation of other court orders

There are three possible types of no-trespass orders that the housing authority can get:

1. A temporary order for 10-days (called a temporary restraining order).
2. An order that is in effect while a case is going on (called an interlocutory order). This order must be time limited and cannot be for longer than a year. A housing authority can ask that this type of order be extended for good cause.
3. A permanent order (called a permanent injunction). This type of order can only be issued after a full trial.

If the court grants a no-trespass order, the clerk must give a certified copy of the order to the police. If the police see the non-resident on the premises, they can arrest that person without a warrant or court order and without any further misbehavior on the non-resident’s part. A violation of the order could result in a jail sentence, a monetary fine, or both.

Many housing authorities, however, do not use this court process and instead print up no-trespass notices on their own letterhead. The housing authority may also maintain a "barred" guest list.

The state housing agency, DHCD, issued a notice in 2008 that makes it clear that even if a friend or relative has one of these informal no-trespass notices against them, they may still visit you, as long as you invite them. This includes using common areas to get to your apartment. footnote: DHCD Public Housing Notice 2008-01.There may also be ways to seek to remove these informal no-trespass notices. This is complicated and may require the assistance of an attorney.²³

What can I do if the housing authority says I have an "unauthorized occupant"?

Housing authorities have specific rules on how long someone can stay with you as a guest. If you have someone staying with you longer than allowed by your housing authority, that person is considered an "unauthorized occupant."

If you do have an unauthorized occupant, you should have that person leave immediately. You are violating your lease and public housing rules, and the housing authority can start eviction proceedings against you. However, if you ask the guest to leave, you may be able to avoid eviction by signing an agreement with the housing authority that says that you will not allow the guest to live in your apartment.

If you do not have an unauthorized occupant, you need to first find out exactly who the housing authority thinks is your unauthorized guest. Once you know who the housing authority thinks is living with you, you should gather evidence to show that the person does not live with you. Examples of this type of evidence include the following:

• A copy of that person’s lease showing where they do live.
• A copy of that person’s driver’s license with an address clearly indicated.
• Copies of the outside of envelopes addressed to that person, such as utility bills, car payments, or credit card bills.
• A signed statement by the person that says he or she does not live with you and giving his or her actual address.

Once you have the evidence, write a letter to the housing authority and explain the situation. Include copies of your evidence and a clear explanation about what the situation is. Keep a copy of this letter and whatever else you send with it for yourself. You can also request a meeting to describe your situation and evidence.²⁴

Endnotes

¹760 C.M.R. § 6.03.

²24 C.F.R. § 5.100.

³760 C.M.R. § 6.06(3)(c). See 105 C.M.R. § 410.400 for the minimum square footage requirement in State Sanitary Code.

⁴Lancor v. Lebanon Housing Authority, 760 F.2d 361 (1st Cir. 1985); McKenna v. Peekskill Housing Authority, 647 F.2d 332 (2nd Cir. 1981).

⁵124 C.F.R § 982.316; 760 C.M.R § 6.03.

⁶24. C.F.R. § 982.402(b)(6); 760 C.M.R. § 5.03 (b).

⁷24 C.F.R. § 5.609(c)(5); 760 C.M.R. 6.05(3)(l) (which both exclude from annual income the income of a live-in aide).

⁸24 C.F.R § 966.4(l)(2)(i)(B); 760 C.M.R. § 6.06(6)(d).

⁹760 C.M.R. § 6.06(6)(d) and (e).

¹⁰24 C.F.R. § 966.4(f)(11); 760 C.M.R. § 6.06(5)(c).

¹¹In state public housing, criminal conduct is defined by M.G.L. c. 121B § 32 and 760 C.M.R. § 6.06(5)(e) and (6)(e). In federal public housing, criminal activity is defined as activity that threatens the health, safety or the peaceful enjoyment of the premises by other residents; see 24 C.F.R. § 966.4(f)(12)(i)(A).

¹²24 C.F.R. § 966.4(f)(9); 760 C.M.R. § 6.06(5)(h).

¹³24 C.F.R. § 966.4(f)(10); 760 C.M.R.§ 6.06(5)(i).

¹⁴760 C.M.R. § 6.06(5)(d).

¹⁵760 C.M.R. § 6.06(5)(g).

¹⁶760 C.M.R. § 6.06(5)(j).

¹⁷760 C.M.R. § 6.06(5)(l).

¹⁸760 C.M.R. § 6.06(5)(n).

¹⁹24 C.F.R. § 966.4(f)(12)(i)(B).

²⁰HUD v. Rucker et al, 122 S.Ct. 1230 (2002).

²¹M.G.L. c. 121B, § 32C.

²²M.G.L. c. 121B, § 32C.

²³See, e.g., Comm. v. Richardson, 313 Mass. 32 (1943); Walker v. Georgetown Housing Authority, 424 Mass. 671 (1997).

²⁴Boston Housing Authority v. Bruno, 58 Mass.App.Ct.486, 790 N.E.2nd 1121 (2003).