Section 8 housing has been the subject of some controversy and conflict lately. With a good deal of misinformation floating around, widespread landlord bias against Section 8 tenancies and a potential legal minefield for landlords, we felt obligated to chime in on the housing choice voucher program.

Spawned by 42 U.S.C. §1437, Section 8 aims to assist low-income families, the elderly and disabled to afford decent, safe and sanitary housing in the private market, but like most other matters that cross our desk, the law is much cleaner on the page than in real life application.

Rental property owners seem to have a love-hate relationship with Section 8. Their participation in the program has always been a trade-off between rent security through guaranteed subsidies, shorter vacancies and lower turnover, among other perks, and the unique challenges landlords face when renting to a tenant with a Section 8 voucher. Less endearing aspects of the program include frequent inspections, a labyrinth of regulations, ceilings on amounts the government will pay, concerns over possible property damage and the collection of security deposits, to name a few.

Getting the elephant out of the room

There is a pervasive belief held by many landlords that Section 8 tenants are destructive, with no shortage of horror stories that beset owners can tell to back up their claim – we will resist the temptation to recount the details of these tales. We hasten to say that excessive wear and tear can be afflicted by any tenant, regardless of their income source.

At Bornstein Law, we always operate under the presumption that there are good tenants and bad tenants. By the same token, there are good landlords and bad landlords, so it’s our belief that no group should be painted with a broad brush.

Some landlords do not share our sentiment and have a bias against Section 8 rental applicants. We have always maintained that the wholesale exclusions of any group expose landlords to liability, and a categorical policy of refusing to rent to recipients of Section 8 vouchers is no exception.

What the law says, and where it is mute

The Fair Housing Act (FHA) a federal law, doesn’t bar landlords from discriminating based on Section 8, but some states and municipalities do, oftentimes as part of a larger contextual ban on “source of income” or “public assistance status.” We’ve noted that California defines discrimination much broader than federal law, with the envelope of protected classes constantly being pushed.

Unique protections in the Bay Area

As one of the greatest enclaves of tenant protections anywhere, it’s with little surprise that some Bay Area municipalities have led the charge in discouraging the rejection of Section 8 applicants and codifying this disfavor into law.

Berkeley is one bastion of protective measures for low-income renters – if you say “no” to a Section 8 applicant, it may be tantamount to housing discrimination, as part of Ordinance No. 7568.

The Oakland Housing Authority is dangling financial incentives to landlords who rent to Section 8 participants, but in an earlier article, we related the frustration of many Oakland landlords who experience hurdles in exiting the program – owners who want to divorce Section 8 may find that it’s until death do us part, so a careful cost/benefit analysis is recommended before opting in.

In San Francisco, a longstanding argument over a law that prevents landlords from rejecting Section 8 has been settled for now, as the First District Court of Appeal ruled in favor of the city and affirmed protections for voucher recipients. But with further appeals in the offing, it is likely that we haven’t heard the last of this.

Parting thoughts

We note that there are unique documentation and unforgiving deadlines with the termination of tenancies and rent increases with Section 8 participants and the rules must be followed to the letter.

We also stress that when there is a failed relationship, Section 8 evictions are highly nuanced. The tenant can only be evicted for repeatedly violating the lease agreement, breaking the law in connection with the property, or another “good cause,” an ambiguous term best journeyed with an attorney.

In the vast majority of the cases we handle, tenants violate the lease agreement by failing to pay rent, but there are more nebulous reasons such as violations of the occupancy standards or nuisance violations.

For proper counsel, contact our office for experienced driven, informed advice on the Section 8 program and any other orbits of your real estate business.


Bornstein Law