Chapter 11: Lease Terminations

1. Overview

This chapter will describe lease terminations. As defined in the lease agreement and in accordance with NYCHA policies, state and local laws, the resident or NYCHA may terminate the lease and tenancy at any time by providing written 30 calendar days’ advance notice to the other party.

2. Key Acronyms

• • CFR: Code of Federal Regulations
  • NYCHA: New York City Housing Authority
  • SSN: Social Security Number
  • VAWA: Violence Against Women Act

3. Resident Move-Out

1. 1. 1. Lease Termination by Resident (Move Out)

Residents must give NYCHA 30 calendar days prior written notice when they intend to move out of their apartment, using NYCHA Form 040.032, Notice of Intent to Vacate, including the date the resident will move out. The notice period must be 30 consecutive calendar days but does not necessarily have to include a calendar month.

NYCHA charges rent until the resident moves out of the apartment, turns in the keys, and NYCHA takes possession of the apartment. If the resident moves out before or after the date listed on the Notice of Intent to Vacate, NYCHA charges the resident up until the date they move out of the unit.

NYCHA inspects the vacated apartment with the resident if the resident has given prior notice and wants to be present for the inspection. Refer to Chapter 9, Inspections, for more information.

4. Abandoned Apartments

When NYCHA determines that an apartment has been abandoned, NYCHA will charge the resident rent through the date NYCHA gained possession of the apartment.

5. NYCHA-Initiated Terminations

Termination of tenancy may be required due to prohibited conduct by a resident, a member of the resident's family, or a guest, or for non-payment of rent. NYCHA terminates tenancies pursuant to its Termination of Tenancy Procedures with the opportunity for an administrative hearing that affords residents due process.

i. Escalera and Tyson-Randolph Decisions

Termination of tenancy for grounds other than nonpayment of rent is governed by a federal consent decree in the case of Escalera v. New York City Housing Authority, later modified by the Tyson-Randolph cases. NYCHA termination of tenancy procedures were created in response to these decisions. Grounds for termination under these procedures are non-desirability, breach of rules and regulations, chronic breach of rules and regulations, chronic rent delinquency, non-verifiable income, assignment or transfer of possession, and misrepresentation.

Before a tenancy in public housing can be terminated for reasons other than nonpayment of rent, the resident must be offered an administrative hearing held by an impartial Hearing Officer based on written charges served on the resident prior to the hearing. Witnesses may be produced both by NYCHA and the resident and may be examined and cross-examined. Residents may be represented by counsel or other persons of their own choice at the hearing. If the resident cannot afford an attorney, the resident may seek counsel from a legal services organization that provides free services. The Hearing Officer’s decision will be made in writing on the charges presented. The Hearing Officer may make a disposition about action to be taken in the case including termination of tenancy, probation, or permanent exclusion or find the tenant eligible for continued occupancy in public housing.

ii. Grounds for Termination

There are specific grounds on which termination of tenancy proceedings may be based. These grounds are described below.

1. 1. 1. 1. 1. Misrepresentation

The willful misstatement to, or concealment from, NYCHA by the resident of any material fact bearing upon or relating to the resident’s eligibility for admission or continued occupancy or bearing upon the amount of rent to be paid by the resident.

1. 1. 1. 1. 2. Breach of Rules and Regulations

The breach by the resident, or any person occupying the resident's apartment, of any applicable rule, regulation, or resolution of NYCHA. The resident will be given an opportunity to cure/resolve the Breach of Rules and/or Regulations.

1. 1. 1. 1. 3. Chronic Breach of Rules and Regulations

The repeated violation by the resident or any person occupying the resident's apartment of any NYCHA rule or regulation which the resident had previously reported as cured/resolved by compliance. The resident will not be given an opportunity to cure/resolve a Chronic Breach.

1. 1. 1. 1. 4. Chronic Delinquency in the Payment of Rent

The resident's repeated failure or refusal to pay rent within the month due, at least four times during any 12-month period ("4 in 12"). Rent need not be in arrears at the time the action is instituted if the record clearly shows repeated failure or refusal to pay.

1. 1. 1. 1. 5. Non-Verifiable Income

The resident's failure, neglect, or refusal to provide NYCHA 040.297, Public Housing Affidavit of Income-Annual Recertification and NYCHA 040.297C, Public Housing Affidavit of Income-Active Family Members (when applicable) and the required supporting documentation.

If the resident is self-employed and does not keep proper records, as required, or fails to provide information required, the action to terminate may be based on Breach of Rules and Regulations as well as on Non-Verifiable Income.

1. 1. 1. 1. 6. Assignment or Transfer of Possession

The possession and use of an apartment by a person or persons other than the resident of record, without NYCHA permission or consent, after the resident of record has moved from the apartment or no longer resides there. This also includes a NYCHA resident subletting or providing short-term rentals for a NYCHA apartment.

1. 1. 1. 1. 7. Non-Desirability

Non-desirability is defined by NYCHA as the conduct or behavior of the resident, their guest, or any other person occupying the apartment of the resident which constitutes:

• • • • • A danger to the health and safety of the resident's neighbors;
        • Conduct on or in the vicinity of NYCHA premises which is in the nature of a sex or a moral offense;
        • A source of danger or a cause of damage to the employees, premises, or property of NYCHA;
        • A source of danger to the peaceful occupation of other residents; or
        • A common law nuisance.

1. 1. 1. 1. 8. Failure to sign NPHOI Lease

If a resident who is over-income for 24 consecutive months declines to sign an NPHOI lease with the alternative rent, NYCHA will proceed to initiate a holdover proceeding in Landlord and Tenant Court. The resident will continue to be a public housing program participant with their public housing rent in the period before eviction. NYCHA is required to evict the household no later than six months after the date of the 24-month notification.  Refer to Chapter 8(h), Over-Income Residents, for more information.

1. 1. 3. Notification

NYCHA notifies residents of their breach of lease by mailing or hand delivering the below notices:

• • • • NYCHA Form 040.297B, Annual Recertification Additional Forms Cover Letter (only sent out to residents who did not submit their Annual Recertification, all other breach of lease notifications start with NYCHA Form 040.185)
      • NYCHA Form 040.185 Termination of Tenancy & Possibly Subsidy-Call-In Letter
      • NYCHA Form 040.186 Termination of Tenancy & Possibly Subsidy-Follow Up Call-in-Letter (sent to resident if they failed to appear/respond to NYCHA Form 040.185)
      • NYCHA 040.187 Termination of Tenancy and Possibly Subsidy-Notice to Tenant of Manager’s Recommendation to Terminate

If the resident has been found ineligible for continued occupancy, NYCHA Form 040.004, 30 Day Notice to Vacate is served once the Determination of Status and Hearing Officer’s decision have been sent to the resident. The 30 Day Notice to Vacate clarifies that the resident is to vacate the premises by a date not less than one calendar month from the date of its mailing or other service. The Notice also informs the resident that failure to vacate will result in the commencement of holdover proceedings leading to eviction.

6. Terminations Related to Violence Against Women Act (VAWA)

Prior to starting the termination process, NYCHA reviews the resident’s records to determine if any household members have submitted documentation claiming protections under VAWA relating to the grounds for termination.

VAWA incidents cannot be the basis for terminating the tenancy of any household member other than the tenancy of the abuser(s), subject to the limitations of VAWA protections described below. In addition, a tenancy cannot be terminated as a direct result of the fact that the resident is or has been a victim of a VAWA incident.

1. 1. Limitations of VAWA Protections

1. 1. 1. 1. 1. Charges Against All Residents

Under VAWA, termination of tenancy charges may be brought against all residents, including victims of VAWA incidents, for chronic rent delinquency, non-verifiable income, misrepresentation, breach of rules and regulations, assignment or transfer of possession, and any non-desirable act other than VAWA incidents, so long as the non-desirable acts are not a direct result of the VAWA incident. VAWA incidents include domestic violence, dating violence, stalking, and sexual assault.

1. 1. 1. 1. 2. Charges Against a Resident For Actual And Imminent Threat to Others

VAWA permits the termination of any resident’s tenancy, even the victim’s, if that resident presents an actual and imminent threat to other residents, NYCHA property, NYCHA employees, or service providers.

An actual and imminent threat to others, as defined in federal regulations, is a physical danger that is real, would occur within an immediate time frame, and could result in death or serious bodily harm. Factors to consider in determining whether an individual would pose an actual and imminent threat include:

• • • • • The duration of the risk;
        • The nature and severity of the potential harm;
        • The likelihood that potential harm will occur; and
        • The length of time before potential harm would occur.

1. 1. 1. 1. 3. Charges Against an Alleged VAWA Victim

Charges may also be brought against a person who claims to be a VAWA victim but fails to provide necessary documentation to verify they are a VAWA victim; refer to Chapter 2(g)(ii)(4), Documentation, for more information.

1. 1. 1. 1. 4. Mixed Charges

If charges are brought against the abuser(s) for committing criminal acts directly relating to VAWA incidents, in addition to charges against the tenancy involving non-VAWA incidents, e.g., chronic rent delinquency or non-desirability on non-VAWA related grounds, the VAWA-related charges should specify they are brought against the abuser(s) only, while the other charges should specify that they apply to all residents.

Termination of tenancy charges will not be brought against the victim unless there are no other actions short of termination that may be taken to reduce or eliminate the threat.

Other possible actions short of terminating the tenancy of the victim may include, but are not limited to, the following:

• • • • • Transferring the victim if they meet the emergency transfer requirements;
        • Working with the victim to remove the abuser from the household;
        • Contacting the New York City Police Department (NYPD) to increase patrols or to develop other plans to keep the property safe; or
        • Determining if the victim has obtained an order of protection barring the abuser from the property (sometimes known as an “exclusionary order of protection”) or obtained other legal remedies.

In making termination determinations, NYCHA may not subject a victim of a VAWA incident to a more demanding standard than the standard applied to non-victim residents.

VAWA does not change existing grounds for termination of tenancy. Charges based on criminal acts directly relating to VAWA incidents, for example, fall within non–desirability and/or breach of rules and regulations.

7. Terminations Related to Failure to Disclose or Document Social Security Numbers

NYCHA must terminate the assistance, the tenancy, or both, of a resident and the resident's household, in accordance with the provisions governing the program, if the resident does not meet the applicable Social Security Number (SSN) disclosure, documentation, and verification requirements specified in Chapter 7(h)(vi)(2), Social Security Numbers.

• • NYCHA may defer termination and provide the resident with an additional 90 calendar days to disclose a SSN, but only if NYCHA, in its discretion, determines that:
    • Failure to meet these requirements was due to circumstances that could not have reasonably been foreseen and were outside the control of the resident; and
    • There is a reasonable likelihood that the resident will be able to disclose a SSN by the deadline.
  • Failure of the resident to disclose a SSN by the deadline specified above will result in termination of the assistance or tenancy, or both, of the resident and the resident's household

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