Classical composer Franz Joseph Haydn wrote 106 symphonies. Symphony No. 94, written in 1791 in London, is commonly known as the "Surprise Symphony" due to a musical surprise in its second movement.

The movement, which is structured as a theme and variations, starts as expected – with the orchestra playing the theme. The eight-measure theme is played twice, first with the dynamic (loudness) marking piano (soft) and then as an echo with a pianissimo (very soft) dynamic. Haydn’s surprise is a startling, sudden fortissimo (very loud) chord at the end of the second repetition of the theme.

When later asked if he included the fortissimo chord to wake up an audience whose attention might wane by the time the second movement started, Haydn replied, "No, but I was interested in surprising the public with something new…."

Symphonies of Haydn’s time usually followed a standard, predictable form, so the fortissimo chord in the Surprise Symphony may have been new given its era. However, today’s audiences embrace innovation and the unexpected, whether it be through creative programming or presentation. A concert where an orchestra plays traditional classical music well, without more, may seem mundane.

In the real estate field, surprises are less welcome. Owners expect tenants to pay their rent and follow lease requirements, and tenants expect owners to maintain rental units and common areas and to provide the agreed amenities.

It may not be a surprise that landlords and tenants do not always comply with their leases. However, for residential tenants, possibly the worst surprise is an eviction notice. This article discusses a recent Department of Housing and Urban Development (HUD) proposal that would require certain landlords to provide tenants with prior written notice before they can be evicted for nonpayment of rent.

Which Communities Would Be Affected by HUD’s Proposal

Under HUD’s proposal, some tenants would be entitled to written notice at least 30 days before their landlords could terminate their lease for nonpayment of rent. The proposed rule would not be required for other lease defaults.

The proposed rule would only apply to tenants living in public housing or communities with project-based rental assistance (PBRA), including Section 8. Comments on the proposed rule are due by January 30, 2024.

The proposed rule would replace a 2021 interim final rule adopted to help prevent families from becoming unhoused during the COVID-19 pandemic after the expiration of an eviction moratorium issued by the Centers for Disease Control and Prevention (CDC).

Since the proposed rule would only apply to tenants living in public housing or communities with PBRA, government support under those programs existing rent support should continue during the 30-day period. But if the nonpayment is due to the tenant’s failure to recertify income, the landlord might not receive that rent support.

When HUD adopted the interim rule, federal emergency rental assistance funds were also available to support rent payments for many tenants. That rule was contingent on the availability of rent support. Since emergency rental assistance is no longer available under the COVID-19 era program, the new rule would not be contingent on a national emergency or available emergency relief funds.

Notice Requirements

After a final rule is issued, HUD will issue sample notice language. Under the proposed rule, the notice would need to satisfy these requirements:

• Include instructions on how tenants can cure lease violations for nonpayment of rent

• Statement of the amount of rent owed and other arrearages permitted by the tenant’s HUD program

• State the date by which the tenant must pay the rent to avoid eviction

• Provide information about how tenants can recertify their income or request a minimum rent hardship exemption

• Be in accessible format(s) to ensure effective communication for tenants with disabilities to comply with Section 504 of the Rehabilitation Act of 1973

• Be in a form that facilitates meaningful access for tenants who have limited English proficiency and comply with Title VI of the Civil Rights Act of 1964 and applicable regulations, including HUD’s “Final Guidance to Federal Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Limited English Proficient Persons

HUD also suggests that the notice inform tenants that those with disabilities may request reasonable accommodations and include information about who to contact for those requests. A reasonable accommodation for rental payment requirements might be to adjust the tenant’s rent due date to coincide with the day of the month when they receive benefit payments.

Other Laws Affecting Tenant Evictions Still Apply

This notice would be in addition to any notices required under state or local law. Any eviction taking place after the expiration of the 30-day notice period would need to be conducted in accordance with state law.

Evictions also would need to comply with other federal laws. Although several additional federal laws may affect evictions, a complete discussion of all federal laws that may affect evictions is beyond the scope of this article. However, landlords should ensure that evictions do not violate the Fair Housing Act (FHA), the Violence Against Women Act (VAWA), the Americans with Disabilities Act (ADA), or state and local laws protecting tenants from eviction.

The Rationale for Tenant Notice Requirements

HUD’s proposal focuses on protecting families with children. Yet, HUD admits in the proposal that it “does not have public data on the numbers of people in subsidized housing who experience eviction.”

The proposal notes that unhoused families overwhelm an already burdened shelter system. Adults who lack a stable address may find it challenging to find jobs, and those who have jobs may lose their jobs if they are evicted. Eviction also result in school changes for children, which disrupts their education. According to the proposal, eviction also impacts numerous medical concerns, including depression, anxiety, Body Mass Index, and mortality.

Notice requirements may initially appear to serve little function except to impede the eviction process since tenants should already know they are behind in their rental payments. However, the notice won’t only provide tenants with information on how to correct lease violations. It also will provide information about how they can access government rental assistance programs, including a minimum rent hardship exemption.

Some tenants may only need to provide income information to remain eligible for rent support. Some tenants may be eligible under additional rent support under their current or other programs. For those tenants, like those with non-economic breaches, the notice will provide time to obtain the support they need to stay in their rental units. Plus, the landlord will have additional time and motivation to assist tenants in qualifying for additional rent support.

However, the proposal notes that current notice requirements vary based on state and local laws. A uniform notice system across federal programs could help protect the most vulnerable tenants. Yet, since state and local laws will continue to apply, the notice system won't result in national uniformity. However, the proposal would create uniformity among notice requirements for public housing, PBRA, and Section 8 housing, which currently range from five working days to 30 days.

Impact on Landlords

Landlords who receive funds under rent support programs are already incentivized to ensure the tenants remain eligible. However, a tenant who believes eviction is unavoidable may not pay rent or not provide the necessary income information for rental support programs.

Since COVID-19 emergency rent relief has ended, the landlord is left without income but still needs to make mortgage and utility payments and maintain the property. Since it can be challenging to collect past-due rent from a tenant who no longer lives at the property, the notice requirement could result in the landlord absorbing an additional month of expenses.

It is costly to replace a tenant. In addition to the eviction expense, it takes time to find a new tenant. In addition, the landlord must clean the apartment and get it rent-ready for the new tenant, including repairing any damage caused by the prior tenant. Not only can it be costly to prepare a unit for a new tenant, but the landlord won’t be receiving any rental income for that unit during that time.

The landlord isn’t likely to collect eviction costs or payment for damages from the existing tenant. The landlord must either cut amenities and services or increase tenants' rent. Since many landlord expenses are fixed or out of the landlord's control, the landlord will need to raise the rent as much as possible so revenue from other tenants covers those expenses.

Therefore, tenants may benefit from a delay in eviction unless the tenant's breach can be quickly corrected or the tenant can obtain rent. Tenants usually know when they are behind in their rent, so it should be no surprise they may face eviction. And when rental support is available, landlords already are incentivized to work with the tenant to obtain that support rather than pursue eviction.

The proposed rule would only apply to evictions for nonpayment of rent. It wouldn’t apply to evictions for reasons other than nonpayment of rent.

However, in those instances, prior notice may enable a tenant to correct a lease breach of which they are unaware. For example, suppose a tenant has an unauthorized individual living in their apartment. The tenant may have forgotten their lease required that the landlord approve all occupants.

With prior notice, that tenant could use the notice period to move the unauthorized individual out of the unit or to obtain landlord consent for the additional occupant. Yet, there also may be instances where prior notice would be impractical, such as when a tenant is using their rental unit to sell illegal drugs or has engaged in violent behavior in common areas.

Yet, as with nonpayment of rent, most landlords don’t want to evict an otherwise compliant tenant over a correctible lease breach. So, often landlords already are giving tenants notice of the breach. Tenants who diligently address the concerns aren’t likely to be evicted.

Conclusion

Since most landlords want to retain good tenants, the proposed notice requirement likely will replace notices that landlords already provide. The requirement may even prompt landlords to give the 30-day notice immediately after a lease default rather than working informally with tenants to address concerns. Yet, the requirement will establish consistent notice requirements and ensure tenants receive usable information about resources to help them remain in their rental units.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.