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Turning a Denial Around

 

What steps can I take to turn a denial around?

Generally, to challenge a denial of your application, you appeal the denial. The housing authority or landlord. will then be required to hold a meeting called a hearing or conference or informal conference where the denial will be reconsidered. Note that even though the word “appeal” is used, you are entitled to only one hearing or conference, with different programs calling the meeting by different names. You are “appealing” the staff person’s initial decision to deny you, and the one place that appeal will be heard is at the hearing or conference or informal conference.

There are a few important steps to take in preparation for your hearing.

Read the denial letter carefully

Every denial letter must tell you the reasons for the denial. Although it should provide enough detail to allow you to prepare your side of the case, the letter may have only a brief statement. The letter may also tell you which law or regulation the housing agency is using to reject your application. If the notice is vague or minimal, noting simply "criminal activity" or "bad housing history," ask for a new notice. Say you have a right to know which facts are being used to reject you. Whatever the letter says, you will need to find out as much as you can before your meeting about why you were denied housing. To find out the details about why you were denied, you should call the Tenant Selection Office for the development and ask for the information.

Request a hearing

To challenge a denial, do exactly what the notice says. You must request a hearing (sometimes called a conference) in writing by the deadline noted in your denial letter. Your request must go to the person and place noted in the denial letter. See How much time do I have to challenge a denial? and Sample Letter Requesting a Hearing.

Ask for documents before the hearing

As soon as possible after you get a denial letter, you should ask to see the entire file that a housing authority or subsidized landlord has kept on your application. You should then make copies of everything in the file that has to do with why you were denied. The law says that housing authorities and landlords have to let you examine and copy these documents before the hearing. If you want copies, though, you may have to pay for them.52

You may find when you look at these documents that there are errors. For example, there may be a CORI report (Criminal Offender Record Information) on you that contains someone else’s crimes or that contains cases against you that were dismissed, which is illegal.53 There may be incorrect credit information. You may find that a landlord has given you a bad reference. For more about how to deal with these issues, see Tenant Screening.

Find the law

If the letter tells you the law or regulation that your denial is based on, contact a law library in your area or a local Legal Services office and ask for a copy of this law or regulation. View a list of law libraries or find Legal Services offices near you.

Compare the law and the denial letter

Read the denial letter again. Then read any rules that are being used as a reason to deny you housing and see whether your situation fits what the law says. If the law in the denial letter does not cover your particular situation, you need to point that out at your hearing. Bring your denial letter to the hearing, and bring the law or regulations that the denial letter refers to. Explain why the law referred to in the denial letter does not apply to you.

For example, a housing authority may deny you a Section 8 voucher under a rule that says you must be denied a voucher if you were evicted from federally funded housing for drug-related activity. But if, in fact, you were evicted from private-market housing that was not subsidized, or the person who engaged in drug-related activity is in jail and no longer in your household, this rule does not apply to you.

Bring letters of support and witnesses to the hearing

If the denial is based on facts which are true but now outdated, the best thing you can do to challenge the denial is to bring documentation and people to a hearing to show that your circumstances have changed and that you will be now a good tenant. Make a "that was then, this is now" argument. Letters of support or the fact that someone will take the time to come with you to a hearing can make a positive impression. Letters from a current employer, probation officer, counselor, housing advocate, social worker, or anyone who can assure that your circumstances have changed are especially helpful. Letters from friends can be useful if they are detailed and acknowledge the former problem and describe the change in you. A housing authority will give more weight to a letter if it is in the form of an affidavit, meaning that it is a signed "under oath."   

If you are going to bring witnesses, prepare them for the hearing. Tell them what you will be asking them and think about what the hearing officer may ask them and go over this with them.

If you are not absolutely positive that a witness you plan to bring to the hearing will speak favorably about you, do not bring that person. Get a letter/affidavit from him or her instead. Also, it is a good idea to get letters from people you are sure will come, because sometimes they don’t. Letters from a current landlord or neighbor that assure that you have been or will be a good tenant can be very helpful, too. A good tenant is someone who:

  • Pays the rent on time.
  • Complies with the terms of the lease.
  • Keeps a dwelling unit in good condition.Does not disturb neighbors or damage property.
  • Does not engage in criminal activity, including using illegal drugs.

The letters that you bring to your appeal hearing should specifically talk about whatever the reasons were for the denial of your application. For example, if the owner or housing authority denied you because they think you had bad housekeeping habits, you should bring letters from your landlord or a social worker who regularly visited you, saying that you kept your home in clean, good condition. If you were denied because someone told the housing authority that your children cause noise, bring a letter from a neighbor (or bring the neighbor) saying where she lived in relation to your apartment and that she was not disturbed by your children.

If you are homeless, or have lived with someone else and not been a tenant yourself, letters from anyone who has been around you are better than nothing. For example: A shelter employee can say you were quiet and followed the rules. A neighbor of the person you stayed with can say she never heard any noise or was aware of drugs or any problems at all while you were there. And, even if the neighbor did not know you were there, a letter saying that there were no problems coming from the apartment where you say you were staying can be helpful.

Make an extra copy of each document to give to the hearing officer. Highlight the important sections. This makes it easier for the officer to read and helps keep the issues clearer in everyone's mind. Remember to keep copies of everything for yourself.

Make your case at the hearing

The conference or hearing is your chance to show a housing authority or subsidized landlord that you will be a good tenant.How you look and act can be as important as what you say. You are being sized up as a person and as a potential tenant, so impressions matter a lot. Dress as nicely as you can, sit up straight in your chair, and make direct eye contact with the hearing officer while you are talking. Be respectful and sincere.

You want to make your case to convince the housing agency either that it is wrong in its understanding of your situation or that there are special circumstances that it should consider when deciding whether to allow you into the program. For example, you may find out that you were denied housing because of a bad landlord reference. At the informal conference, you can show the housing authority that the landlord who gave the reference did not tell the truth about you because he was angry with you for having called the board of health to report bad conditions in the apartment. To show this, bring a copy of the board of health inspection report.

Be sure to prepare for your hearing. You want to be factual, not emotional, during your presentation. Using the Worksheets to Help You Challenge a Denial of Housing, list the things you need to cover to make your case. Play "devil's advocate." List all the arguments you can think of that the housing authority or owner may make about why they denied your application, and, using the Worksheets to Help You Challenge a Denial of Housing, prepare your response to each one.

A housing authority is more likely to believe what you say if you bring proof of every fact you are talking about. For example, you would not just say you had called the board of health, you would bring the report to prove it. You would not just say you had completed a drug rehabilitation program, you would bring a letter or certificate from the program. You would not just say you attend AA meetings, you would bring a letter from your sponsor.

Also, it is important to give hearing officers a sense of what you currently do that is positive, and not just focus on what you don’t do anymore. If you are employed, bring a letter (or at least pay stubs) from your employer. If you live on disability payments, talk about what you do during the day, such as performing volunteer work or attending day programs. If you are caring for a young child, you can highlight that.  Put yourself in the hearing officer’s shoes—she knows about some negative history and will be looking for information about what has changed. 

How can I show that my circumstances have changed?

If you have been denied housing because of past misconduct by you or someone in your household, at your hearing or conference you should present information that shows special or mitigating circumstances—that is, why you should be given another chance to show that the past bad behavior is unlikely to be repeated in the future.

Criminal records and substance abuse

If you are denied public housing because of your criminal record, the housing authority will send you the denial in writing. If the denial was based on a criminal record, you have the right to see the record that the housing authority or subsidized owner based its decision on. 54 At the appeal hearing, you should explain to the housing authority the behavior that led to the denial. You need to show that the behavior that led to the denial is in the past. For example, your presentation could include proof that the person who engaged in the misconduct:

  • Was abusing drugs or alcohol at the time of the crimes, but has since successfully completed an approved supervised drug or alcohol rehabilitation program or has otherwise been rehabilitated or is in recovery now. 55
  • Has participated in counseling and social service programs. 56
  • Has passed away or is in prison.57
  • Has not engaged in such behavior for a reasonable period.58
  • Was not engaged in an offense that was serious or participated to only a minor extent in the offense.59
  • Met all probation requirements while on probation, and successfully completed probation.60
  • Has a letter from a previous landlord saying he or she was a good tenant.

Housing agencies and subsidized landlords running federal programs can also consider accepting your application and denying housing only to the household member who engaged in the misconduct.61

If I have been denied housing because of a disability, how can I challenge the denial?

If the reason that you were denied public or subsidized housing is related to a disability or to misconduct related to a disability, you can request a reasonable accommodation. In fact, the majority of reversals of denials as of this writing are based on reasonable accommodations. Both federal and state laws require housing agencies and subsidized landlords to make reasonable accommodations for people who have disabilities.62 This means that sometimes housing authorities and subsidized landlords need to make exceptions and do things differently in order to enable people with disabilities to participate in a housing program.63 This doctrine is the opposite of other discrimination laws, which require everyone to be treated the same regardless of race and other factors. For this purpose, people with disabilities sometimes have to be treated differently in order to be equal in being able to take advantage of housing programs.

But you must still be able to obey the rules of the housing program. It is wrong to say that, because you are disabled, you must not be held to the rules. If your disability has made you, for example, too noisy to live in housing with others, too dangerous to be around others, or too immobilized by depression to pay your rent or keep your apartment reasonably clean, then you are not qualified for housing. You will have to be able to show that you have made changes or made arrangements so that the problem is taken care of. The law of reasonable accommodation gives you the right to be judged again after you have made those changes.

Mental or physical illnesses, alcohol dependency, and past drug addiction are among the disabilities that may entitle you to a reasonable accommodation. In a request for a reasonable accommodation, you will need to explain:

  • That your condition interferes with a major life activity, such as working, walking, thinking, or breathing. That is what makes it a disability. A doctor’s certification of your disability will be required.
  • The relationship between the misconduct and your disability—in other words, how the disability caused the bad behavior; and
  • The steps that you have taken to get rehabilitation, programs you have completed, and information about new treatment or support systems or medications that address the problem.

Here are some examples of people who could be found eligible for housing with a reasonable accommodation:

  • A person with learning disabilities who has a poor rent-paying history should not be found ineligible for housing if she is willing to get someone else (for example, a representative payee who handles her SSI checks) who will pay her rent directly to the housing authority.
  • A person with a disability who has a poor housekeeping history should be found eligible if she receives housekeeping services now.
  • A person with a disability who has a history of fighting with former neighbors should not be found ineligible for housing if he is now in treatment, successfully medicated, in control of anger, and not likely to be involved in future fights.

For more information see Reasonable Accommodations.

Endnotes

52 760 C.M.R. § 5.13(1)(e).

53 Some housing authorities and owners will tell you that they cannot let you copy your CORI and take it out of their office. However, state laws say that, with some exceptions, a housing authority must let you inspect and copy records it keeps on you. See G.L. c. 66A, § 2(i), and 760 C.M.R. § 8.04(6). It is a good idea to bring a pen or pencil and some paper and take notes on your CORI when you review your file at the housing authority or subsidized development.

54 If a housing authority or subsidized landlord intends to deny your application for housing based on information in a CORI report, they must give you an opportunity to challenge the accuracy or relevance of the CORI they have received before making a final decision. State: 803 C.M.R. § 6.11; Federal: 42 U.S.C. § 1437d(q)(2); 24 C.F.R. § 960.204(c); 24 C.F.R. § 5.903(f). See also Chapter 6: Tenant Screening. There are cases which discuss whether the hearing officer can consider certain types of hearsay evidence at your hearing. See, e.g., Ervin v. Housing Authority of the Birmingham District (unpublished), D.C. Docket No. 06-01447-CV-H-S (11th Cir. 2008) (“In the context of an administrative proceeding, we judge the reliability and probative force of hearsay evidence by considering the following factors: “‘whether (1) the out-of-court declarant was not biased and had no interest in the result of the case; (2) the opposing party could have obtained the information contained in the hearsay before the hearing and could have subpoenaed the declarant; (3) the information was not inconsistent on its face; and (4) the information has been recognized by courts as inherently reliable,’” quoting Basco v. Machin, 514 F.3d 1177, 1182 (11th Cir. 2008), quoting J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1354 (11th Cir. 2000)). But see Costa v. Fall River Housing Authority, 453 Mass. 614 (2009) (hearsay can be used to terminate a Section 8 voucher, although it must be reliable, and in this case, a police report was deemed reliable but a newspaper article was not).

55 42 U.S.C. § 13661. Federal public housing: 24 C.F.R. § 960.203(d)(2); Federal multifamily housing: 24 C.F.R. § 5.854(a); Section 8 moderate rehabilitation program: 24 C.F.R. § 882.518(a)(1)(i)(A); State: 760 C.M.R. § 5.08(2).

56 Federal public housing: 24 C.F.R. § 960.203(d)(1)(ii); Federal multifamily housing: 24 C.F.R. § 5.852(a) and (c); Section 8 moderate rehabilitation program: 24 C.F.R. § 882.518(a)(1)(i)(A); State: 760 C.M.R. § 5.08(2).

57 42 U.S.C. § 13661; Federal public housing: 24 C.F.R. § 960.204(a)(1)(ii); Federal multifamily housing: 24 C.F.R. § 5.854(a)(2); Section 8 moderate rehabilitation program: 24 C.F.R. § 882.518(a)(1)(i).

58 42 U.S.C. § 1366l(c); State: 760 C.M.R. § 5.08(2)(b). There is no set answer to the question of what a reasonable period is. It appears to be several years at least, and more if the crime was very serious.

59 Federal public housing: 24 C.F.R. § 960.203(d); Federal multifamily housing: 24 C.F.R. § 5.852(a); State: 760 C.M.R. § 5.08(2)(a).

60 Good behavior after probation is the most persuasive information for a housing program.

61 Federal public housing: 24 C.F.R. § 960.203(c)(3)(i); Federal multifamily housing: 24 C.F.R. § 5.852(b).

62 Federal: 42 U.S.C. §§ 3601 et seq.; 24 C.F.R. § 100; 24 C.F.R. §§ 8 et seq.; State: G.L. c. 151B, § 4(6)-(7A); 804 C.M.R. § 2.03.

63 Federal: 24 C.F.R. § 100.204(a); State: G.L. c. 151B, § 4(7A)(2).When applying for federally assisted housing, you may submit the contact information of a family member, friend, or social, health, advocacy, or other organization to the owner of the federally assisted housing "to assist in providing any services or special care" you require and help resolve any issues that may arise during your tenancy. See HUD Housing Notice 2009- 13, HUD PIH Notice 2009-36 (September 15, 2009).


Produced by Massachusetts Law Reform Institute
Last updated December 2009


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