Recently, new versions of regulations governing the termination of leases for nonpayment of rent in the Public Housing and Rural Development spaces became effective. These regulations impose new burdens on the landlord that create potential pitfalls for successful lease terminations, and thus housing providers and management companies operating Public Housing and USDA, Rural Development units should be cognizant of the new requirements.

First, in December 2024, a new version of 24 C.F.R. 966.4 took effect. This regulation is applicable to Public Housing Authorities and managers of Public Housing units, not all properties receiving assistance from HUD. The updated version of the regulation impacts those housing providers must provide termination of lease notices for nonpayment. The new version of this regulation is mostly the same as before, but it contains several new requirements for nonpayment terminations that are substantially more burdensome than the prior version. The new requirements for termination notices for nonpayment are as follows:

• The effective date of termination must be at least 30 days after the notice date.
• The notice must provide instructions on how to cure the nonpayment default (i.e., where can payment be sent and what form of payment will be accepted). The right to cure is not option for the housing provider.
• The notice must include an itemized amount separated by month of the alleged rent owed and any other arrearages permitted by the lease and HUD.
• The notice must provide the tenant with a specific date by which her or she can cure, which will usually be the same date as the effective date of termination.
• The notice about how the tenant can recertify income, request a hardship exemption, or switch from flat rent to income-based rent under applicable regulations.
• When applicable, the notice must also provide information about a Presidential declaration of emergency.

Public Housing Authorities and managers of Public Housing units should take careful note of these new requirements and take steps to put them into practice. Following a lease that does not mirror the regulations will not stop a court from dismissing an eviction if the notice does not comply with 24 CFR 966.4. Managers of Public Housing units should update their lease documents and any other policies or procedures that reflect outdated requirements to create more checks and balances for compliance.

Second, in March 2024, a new version of 7 C.F.R. 3560.159 took effect. This regulation impacts how managers of units subsidized by USDA, Rural Development must provide notice of lease termination for nonpayment. The new version of 7 C.F.R. 3560.159 imposes new requirements on terminating leases for nonpayment of rent. The significant changes are as follows:

• The effective date of the termination notice must be at least earlier than 30 days the tenant actually receives the notice.
• The notice must be provided in accordance with 7 C.F.R. 3560.160(e), which requires personal delivery. Posting is no longer sufficient for nonpayment termination notices USDA, Rural Development arena. The landlord must either send the letter via Certified Mail, Return Receipt Requested, and obtain proof of delivery, or must hand-deliver the letter to the tenant and obtain a written acknowledgment of receipt.
• The notice must provide instructions on how the tenant can cure the nonpayment violation. The right to cure is thus not optional, and the letter should tell the tenant where to send payment, what form of payment will be accepted, and when payment must be received by to cure. Usually, the cure date will coincide with the effective date of the termination notice
• The notice must provide information about how the tenant can recertify income under applicable regulations.
• When applicable, the notice must provide information about a Presidential declaration of emergency.

Managers of units subsidized by USDA, Rural Development should carefully examine these new requirements and ensure that their practices are in compliance. The most significant change is the requirement of personal delivery. In the past, housing providers could deliver nonpayment notices by posting the letter to the door of the unit. This practice will no longer suffice for nonpayment notices. Housing providers must now obtain personal delivery and have proof of personal delivery. This new requirement will surely create headaches for housing providers, particularly in situations where the tenant is able to dodge service of the notice. If a housing provider cannot obtain personal service of the nonpayment termination and prove service, the new version of the regulation basically says you cannot evict the tenant for nonpayment. Managers of units subsidized by USDA, Rural Development should update lease documents and any other policies or procedures to match the new version of the regulation and create another safeguard for compliance.

In our practice representing management companies and landlords, we have already seen the impact of these newly updated regulations. Legal service organizations are very aware of these updates, and they stand prepared to pounce on landlords slow to comply. A defense of noncompliant notice will usually result in an eviction being dismissed with prejudice, so strict compliance is a must. Housing providers and management agents managing USDA, Rural Development or Public Housing with questions about these new requirements and how best to implement them are encouraged to consult with experienced counsel to ensure they are complying. The attorneys at Blanco Tackabery stand ready to assist.

Henry Hilston employs his experience in state and federal litigation as an asset in his representation of affordable and conventional multifamily property owners and managers. In that practice, he advises property management companies on a wide range of issues, including evictions and other landlord-tenant disputes, VAWA, the Fair Housing Act, and compliance issues under federal and state affordable housing programs, such as the Low-Income Housing Tax Credit (LIHTC) program and HUD and USDA-Rural Development rental subsidy programs. He also assists those clients with the preparation, review, and revision of management documents, including tenant selection plans, management agreements, and leases.

In the waning days of 2023, my colleague, Henry Hilston, wrote a blogpost discussing a then-recently issued decision by the North Carolina Court of Appeals, Rosewood Estates I, LP v. Drummond. There, the tenant rented the subject premises from the landlord through the U.S. Department of Agriculture’s Rural Housing Program. The landlord sent a written notice to the tenant, informing her that her lease would not be renewed following expiration of the then-current term because of various complaints it had received concerning the tenant’s improper conduct and her failure to cure the same.

The tenant failed to vacate the premises in accordance with the notice, and the landlord commenced an action in summary ejectment. As a defense to ejectment, the tenant challenged the adequacy of the landlord’s notice of non-renewal, arguing that: (i) the notice failed to provide adequate notice of the alleged breach(es) of the lease that were (nonspecifically) cited as grounds for non-renewal; and (ii) the notice was not accompanied by a VAWA Notice of Occupancy Rights and HUD Certification Form (hereinafter, the “VAWA Paperwork”).

The trial court rejected the tenant’s arguments and granted the landlord a judgment for possession.  The tenant appealed, and the Court of Appeals reversed, concluding that that the notice was defective for each of the reasons argued by tenant.

On the surface, Rosewood plausibly could be read as requiring a landlord for a “covered dwelling” to provide a terminated tenant with the VAWA Paperwork in conjunction with any termination notice, even when the termination has no nexus to domestic violence whatsoever. After all, nothing in the Court’s recitation of the facts in Rosewood suggests that domestic violence was in any way implicated. Moreover, the tenant, in her briefing, took the position that landlords of “covered dwellings” are required to provide the VAWA Paperwork in conjunction with all termination notices, even when there is no domestic violence nexus.

For reasons deftly summarized in Henry’s prior blogpost, imposition of any such universal requirement hardly seemed sensible. Regardless, concerns surrounding Rosewood’s broad, and overly vague holding were, to some degree, academic, since Rosewood was an unpublished decision (i.e., one that did not qualify as a binding precedent).

Then, in July 2024, the Court of Appeals, in L.I.C. Associates I, L.P. v. Brown, again addressed a landlord’s alleged failure to provide VAWA Paperwork in conjunction with notice of termination.[1] There, the plaintiff landlord issued a notice of termination, advising the defendant tenant that her tenancy would be terminated due to nonpayment of rent unless she brought her account current during a specified cure period.  She failed to do so, and the landlord commenced an action in summary ejectment, alleging that the tenant had violated one or more conditions of the lease for which the right of reentry was specified, namely those provisions requiring her to timely remit her rental payments when due. The landlord subsequently filed an amended complaint, alleging that tenant also had unilaterally changed the locks to her unit without landlord’s prior authorization or approval in violation of a provision of the lease prohibiting tenants from doing so.

The magistrate ruled in the landlord’s favor, and the tenant appealed to district court.  The landlord then filed a motion for summary judgment, which the district court granted.  The tenant appealed to the Court of Appeals and argued that the trial court erred by granting summary judgment in landlord’s favor because the landlord did not put forward any evidence that it provided tenant with the VAWA Paperwork in conjunction with its termination notice to tenant.

The Court reversed the trial court’s summary judgment in favor of the landlord and remanded the case with instructions for the trial court to enter summary judgment in favor of the tenant.  Yet, in a welcome twist for landlords of “covered dwellings,” the Court seemed to suggest that the Brown landlord’s failure to provide the VAWA Paperwork was problematic not because a failure to provide VAWA Paperwork is fatal per se, even where there is no conceivable domestic violence nexus, but because there was, at least conceivably, a potential domestic violence nexus at play.  More specifically, the Court noted that the tenant had offered affidavit testimony averring that she had changed her locks because her ex-boyfriend had stolen her keys, which, in the Court’s view, made it impossible to say, as the landlord had contended, that the lock-changing violation noted in the landlord’s amended complaint was unrelated to domestic violence.

As a curious aside, the Court’s decision to reverse and remand with instructions to enter summary judgment in favor of tenant, rather than with instructions to conduct further proceeding not inconsistent with the appellate court’s mandate, was procedurally unusual, since the actual existence of a domestic violence nexus in the case, while colorable, was not conclusively established from the existing record.  Moreover, the Court’s focus on the potential domestic violence nexus vis-à-vis the lock-changing violation also did not address the absence of any such nexus vis-à-vis the non-payment violation, which had been the original (and, for a time, only) impetus for the ejectment action.

In any event, unlike Rosewood, Brown is a published decision and is, therefore, a binding precedent on all North Carolina trial courts.  Thus, Brown appeared to represent something of a “course correction” by the Court of Appeals from its potentially unbounded suggestion in Rosewood that failure to provide a terminated tenant with the VAWA Paperwork in conjunction with any termination notice, even when the termination has no nexus to domestic violence whatsoever, could be an absolute defense to ejectment for tenants at “covered dwellings”

Most recently, in February 2025, the Court of Appeals in Oxford Housing Authority v. Church again addressed the issue of when a landlord of a “covered dwelling” must provide VAWA Paperwork in the context of termination of a tenancy and further clarified its holding from Brown, making explicit that the VAWA Paperwork need not be issued in conjunction with a termination notice where there is no domestic violence nexus.  There, the plaintiff, a public housing authority (PHA), commenced an action in summary ejectment against the defendant tenants for failure to pay retroactively adjusted rent, which was determined to be due and owing because of an unreported interim change in income.  The trial court ruled in favor of plaintiff, and defendants appealed.

On appeal, the defendants argued in part that the trial court erred by entering the judgment for ejectment because the plaintiff, as a PHA, was subject to VAWA but did not provide them with the VAWA Paperwork when it provided written notice of termination of their tenancy for non-payment of rent.  The Court of Appeals disagreed and concluded that provision of the VAWA Paperwork was not required.

The Court began it analysis by harkening back to Brown and the Court’s rejection of the Brown landlord’s contention that the VAWA Paperwork was not required due to the absence of a domestic violence nexus.  By contrast, the Court noted that the Church tenants, unlike the Brown tenant, did not argue they were entitled to receive the VAWA Paperwork because of a potential domestic violence nexus[2] nor was there “anything in the record indicating any present or historical concerns of domestic violence.” Instead, in Church, the tenants put forward the sweeping argument espoused by the Rosewood tenants that, simply because their landlord was subject to VAWA, the landlord was “automatically required” to provide the VAWA Paperwork “when initiating a lease termination on any ground, including nonpayment of rent.”  (Emphasis in original).

To support this argument, the appellants in Church cited to a California appellate decision, which explicitly held that the VAWA Paperwork must be provided in connection with every termination of tenancy for a “covered dwelling,” even when there is no nexus to domestic violence, along with the Court of Appeals’ prior decision in Rosewood, which had suggested a similar rule (albeit only implicitly).  The Court declined to treat the California decision or its own unpublished decision in Rosewood as persuasive.[3]

The Court unambiguously rejected the tenants’ contention that VAWA mandates provision of the VAWA Paperwork “in all lease termination proceedings.”  Looking to the langue of VAWA itself, the Court noted that the statutory text’s “plain meaning and intent . . . is to protect housing applicants and tenants from housing discrimination based on domestic violence[.]” The Court, therefore, held that landlords of “covered dwellings” are not required to provide the VAWA Paperwork when a lease termination is based on non-payment of rent and there is no indication that any tenant has any concerns regarding domestic violence.

What do Rosewood, Brown, and Church mean for landlords of “covered dwellings?” In a broad sense, Brown and Church have gone a long way toward correcting some of the likely unintended confusion stemming from Rosewood’s overly broad language.  While Church represents the most full-throated declaration of VAWA’s inapplicability to ejectments unrelated to domestic violence, it, like Rosewood, is an unreported decision, meaning future panels of the Court of Appeals (or trial courts) may make short shrift of its pronouncements, much as the Church panel itself did, when discounting Rosewood’s import.  But what Church shouts Brown whispers (if not declares at a standard speaking decibel).  Thus, landlords at “covered dwellings” should take some solace in knowing that, when the basis for an ejectment has no nexus whatsoever to domestic violence, provision of the VAWA Paperwork is likely not required, and the failure to furnish it should not constitute a viable defense to ejectment. But when multiple grounds for ejectment exist, and any of them has a colorable or potential nexus to domestic violence, per Brown, failure to provide the VAWA Paperwork may vitiate even those grounds that lack such a nexus.

As always, landlords at “covered dwellings” are encouraged to consult with experienced counsel to ensure that they are complying with applicable law. The experienced attorneys at Blanco Tackabery stand ready to provide such counsel.

[1] In the interest of full disclosure, this firm represented the landlord in Brown.

[2] As a reminder, the Rosewood plaintiffs likewise did not argue that they were entitled to receive the VAWA Paperwork because of any potential or alleged domestic violence nexus, but the Court, nonetheless, validated the legitimacy of their VAWA defense in its unpublished decision.

[3] Notably, Church itself is an unpublished decision. While the Church panel declined to provide any basis for rejecting the rationale espoused in the California case, stating simply that the North Carolina Court of Appeals is not bound by the decisions of California appellate courts, it did offer a distinction from Rosewood. Specifically, the parties in that case had executed a lease addendum stating the lease was subject to the provisions of VAWA, whereas in Church, the parties’ lease had no explicit mention of VAWA or its notice requirements. But, of course, VAWA is a federal law, which applies to “covered dwellings,” irrespective of whether a lease agreement for any particular “covered dwelling” expressly mentions VAWA. Thus, the legal significance of this distinction is suspect. As an interesting aside, Judge Donna Stroud, who has written on the topic of unpublished decisions by intermediate appellate courts, was the authoring judge in both Brown and Church.

Chad Archer brings extensive expertise in state and federal litigation and was recently named to Business North Carolina’s Legal Elite Honorees 2024 as well as the 2024 edition of The Best Lawyers: Ones to Watch® in America. In his civil litigation practice, he advises clients on a wide range of issues, including trusts and estates, appeals, contract disputes, landlord-tenant disputes, commercial and corporate disputes, complex business litigation and employment disputes.