Security Deposits and Section 8 Housing

Note 

We are updating this and many other pages about tenants rights' in private housing.

You can get the updated information from PDF files while we update our web pages. See Legal Tactics: Tenants' Rights in Massachusetts, 2017.

September 2017

If you live in privately owned housing that is subsidized by a state or federal housing program, the landlord must follow the security deposit law. See Your Landlord's Responsibilities. But what the landlord can ask for depends on the type of subsidy you have.

1. Section 8 Housing Voucher

If you have a Section 8 voucher under the Housing Choice Voucher Program or the Project-Based Voucher program, your landlord may charge you a security deposit that is up to one full month’s rent54 . A full month is your share of the rent plus the amount the housing agency pays the landlord. If a full month’s rent is $1,000, a landlord could charge your $1,000 for a security deposit.

A landlord may also charge you last month’s rent in advance, but you would have to pay only your share of the rent. For example if the rent is $1,000 and your share is $300, a landlord can charge you only $300 for last month’s rent.55 The housing agency will pay its share of the last month’s rent the last month you are there. It will not pay it in advance.

If your share of the rent increases during your tenancy, the landlord may ask for the amount of the increase to add to the last month’s rent that she is holding.56

When you move out, the landlord must return your security deposit if there is no damage or unpaid rent. If there is property damage that you, a household member, or a guest caused or unpaid rent this may prevent you from getting back your security deposit. You could also lose your voucher. For example:

  • If a landlord claims that you have committed a serious or repeated lease violation, which could be property damage, a housing agency could try to end or “terminate” your Section 8 voucher or it could refuse to issue you another voucher so that you can move57 ;
  • If the housing agency that pays your voucher asks you to fix damage that you, a household member, or a guest caused within a set period of time, and if you don’t, the housing agency could try to end or “terminate” your Section 8 voucher.58

The best way to protect your security deposit and your voucher is to:

  • Take steps listed in How Do I Protect My Security Deposit Before

    I Move Out.
  • Immediately tell the housing agency and the landlord that you have moved out if it is before your lease is over so that the housing agency will know to make the last payment.
  • If you are at risk of losing your Section 8 voucher because of damage or unpaid rent, you have a right to a hearing.59 Try to get help from a local community organization or legal services.60

2. Section 8 Multifamily Housing (No Voucher)

If you have "project-based" Section 8 assistance in privately owned multifamily housing (which is not a voucher), how much a landlord can charge for a security deposits can vary slightly depending upon the program. The best thing to do is to look at the lease.

  • Some programs provide that the landlord can charge you whichever is greater: either $50 or your share of the rent plus utilities, which is called the “Total Tenant Payment.”61 Example: If the monthly contract rent is $1,000 with all utilities included and your share or “Total Tenant Payment” is $300, a landlord could charge you no more than $300 for a security deposit. If, on the other hand, your monthly rent share is $25, the landlord could charge you $50.
  • Other programs provide that the landlord can charge you your share of the “Total Tenant Payment.” They do not have a minimum $50.62

The federal Section 8 housing programs have no rules about last month’s rent. But it is unlikely that a multifamily owner will require a last month’s rent.

3. Massachusetts Rental Housing Assistance

If you have a voucher funded by the Massachusetts Rental Voucher Program (MRVP) or the Alternative Housing Voucher Program a landlord may charge you a security deposit that is up to one full month’s rent. A full month is your share of the rent plus the amount the housing agency pays the landlord. This should be stated in the lease.

4. Public Housing

For federal public housing, the housing authority is allowed to charge a security deposit that is up to one full month’s rent.63 There is no requirement that a housing authority charge a security deposit in state public housing, unless you ask to have a pet.64

There are no regulations about last month’s rent in either state or federal public housing.

Endnotes

54 . 24 C.F.R. §982.313 (Housing Choice Voucher Program; 24 C.F.R. §983.258 (Project-Based Voucher).

55 . For the Housing Choice Voucher Program and Project-Based Voucher programs, there are no HUD regulations on last month’s rent.

56 . Previously, HUD regulations specifically did not permit charging last month’s rent for the Section 8 program, since the housing agency would reimburse the owner for any vacancy loss if the tenant moved out without prior notice. Attorney General v. Brown, 400 Mass. 826 (1987) (issue of whether landlord unlawfully discriminated against Section 8 subsidy holders because of policy of not accepting tenants where last month’s rent could not be collected). These regulations were changed in 1995. If an owner insisted that a Section 8 tenant pay full contract rent as a last month's rent, this would likely be in violation of G.L. c. 151B, §4(10).

57 . See 24 C.F.R. §982.551(e) (family obligation not to commit any serious or repeated violation of lease) and 24 C.R.F. §982.552(c)(1)(i) (housing agency right to terminate assistance or deny voucher for breach of family obligations).

58 . See 24 C.F.R. §982.404(b) (tenant maintenance obligations), 24 C.F.R. §982.551(c) (family obligation to comply with tenant Housing Quality Standards requirements), and 24 C.F.R. §982.552(c)(1)(i) (right to terminate assistance for failure to comply with family obligations); Carter v. Lynn Hous. Auth., 450 Mass. 626 (2008) (housing authority Section 8 termination where owner pursued waste claim against tenant)

59 . Carter v. Lynn Hous. Auth., 450 Mass. 626, 634 (2008).

60 . Prior to 1995, owners could pursue claims against the housing agency for a certain amount of vacancy loss, property damage, or unpaid rent if the tenant didn’t handle these matters properly. Back then, tenants would want to make sure to contest these claims since it would affect what they had to pay back the housing agency. HUD, however, eliminated these provisions. In some cases, tenants still have repayment agreements with housing agencies for these claims, and a Section 8 voucher participant can face termination, or be denied future assistance, if she fails to comply with such an agreement. See 24 C.F.R. §982.552(c)(v-vii).

61 . 24 C.F.R. 880.608 (Section 8 new construction program); 24 C.F.R. §881.601 (Section 8 substantial rehabilitation); 24 C.F.R. §882.414 (Section 8 moderate rehabilitation program); 24 C.F.R. §886.315 (Section 8 property disposition); 24 C.F.R.§§891.435, 891.635; and 891.775 (Section 202 and Section 811 supportive housing programs). For a general discussion, see; HUD Multifamily Occupancy Handbook 4350.3, Chapter 6, §2, and in particular Figure 6-7, which describes what can be charged for each program.

62 . See 24 C.F.R. §883.701 (state housing agency set-aside); 24 C.F.R. §884.115 (Section 8 state set aside for Section 515 rural housing); 24 C.F.R. §886.116 (Section 8 additional assistance or loan management set-aside). For a general discussion, see; HUD Multifamily Occupancy Handbook 4350.3, Chapter 6, §2, and in particular Figure 6-7, which describes what can be charged for each program.

63 . 24 (no bold) C.F.R. §966.4(b)(5). Check the housing authority’s Admissions and Occupancy Plan and its yearly federal Public Housing Authority Plan.

64 . 760 C.M.R. §6.07(2).

Produced by Maureen McDonagh
Last Updated May 2017

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