HUD Notice H 2012-5, “Guidelines on Addressing Infestations in HUD-insured and Assisted Multifamily Housing supersedes the previous bed bug guidance in Housing Notice 2011-20.
Highlights of major changes in the new guidance:
1. The new guidance supersedes the previous troublesome Notice H 2011-20. This means the new Notice replaces the old one. HUD explained:
“Readers seeking guidance on the subject of bed bug infestations should instead refer to this Notice [H 2012-5], which provides updated information to prevent and address infestations, including but not limited to bed bugs, insects, and all manner of vermin.”
2. Consistent with the lease agreement as well as state and local laws, the new guidance affirms owners’ rights to pursue damage claims and termination of tenancy as a result of bed bug infestations. HUD has backed away from its blanket prohibitions on both charging residents for bed bug treatments when they cause damages and terminating tenancy of noncompliant tenants. The Notice states:
“All Owners (of assisted and unassisted properties) may pursue remedies provided in the lease agreement and in accordance with state and local rental law. Assisted Owners must follow additional guidelines including occupancy requirements for assisted housing, and must adhere to all HUD and state and local landlord/tenant laws before taking action to deny tenancy or remove residents for causes related to infestations. For O/As of assisted properties, the Family Model Lease provides remedies related to damages or noncompliance. Many O/As have proposed lease addenda related to infestations. As detailed in HUD Handbook 4350.3, Section 6-9, Lease Addenda in assisted properties may not conflict with the Family Model Lease. HUD reserves the right to review and approve Lease Addenda for assisted properties, for example to ensure that tenant payment provisions in proposed Addenda do not exceed the remedies for damages or noncompliance provided in the Family Model Lease.”
3. The new guidance distinguishes between provisions that are applicable only to assisted properties and those that are applicable portfolio-wide. According to HUD:
“This Notice provides guidance to the following types of projects:
A. Properties assisted with Section 8 Project Based Rental Assistance, Rent Supplement or Rental Assistance Payment (RAP) contracts.
B. Properties with active Section 202 Direct Loans, Section 202/162, Section 202 and 811 Capital Advances, and Section 202 Senior Preservation Rental Assistance Contracts or Section 811 Project Rental Assistance demonstration funding.
C. Properties with active FHA insured first mortgages under Sections 207 pursuant to 223(f), 221(d)(3), 221(d)(4), 221(d)(5), 231, 213 or 236.
Certain provisions of this Notice are applicable only to assisted properties, as specified in various sections of the Notice below. The Notice does not supersede existing lease provisions that comply with state and/or local landlord/tenant laws and that have been approved by HUD (where such approval is required).1 [1 For unassisted O/As, this Notice does not supersede state and local landlord/tenant law related to lease enforcement, housing habitability, and cure rights or damages.] All parties should refer to the property lease executed between the tenant and the O/A, and the property House Rules, for details on Owner and resident rights and responsibilities related to infestations and housing physical condition standards. Certain assisted properties2 are also subject to provisions of the HUD Model Lease for Subsidized Programs (Family Model Lease) (Form HUD-90105-A, HUD-90105-B, HUD 90105-C and HUD-90105-D) in HUD Handbook 4350.3, Occupancy Requirements of Subsidized Multifamily Housing Programs. [2 Section 221(d)(3) BMIR, Section 236, Section 8 New Construction, Section 8 Substantial Rehabilitation, Section 8 State Agency, RHS 515 with Section 8, Section 8 Loan Management Set-Aside (LMSA), Section 8 Property Disposition Set-Aside (PDSA), Rental Assistant Payment (RAP), and Rent Supplement projects are subject to the provisions of the Family Model Lease.]”