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Types of Transfers

Produced by Massachusetts Law Reform Institute
Reviewed November 28, 2005

How do I find out what my housing authority’s transfer policy is?
What types of transfers are there in state public housing?
What types of transfers are there in federal public housing?
Can I transfer public housing for medical reasons or if I have a disability?
Can I transfer public housing if I am facing domestic violence?
Is my state public housing apartment the right size for my household?
Is my federal public housing apartment the right size for my household?
I live in federal public housing. I need to transfer to a bigger unit. What can I do?
I live in state public housing. I need to transfer to a bigger unit. What can I do?

How do I find out what my housing authority’s transfer policy is?

If you need to transfer to another public housing apartment or the housing authority is requiring you to transfer, your first step should be to find out what your housing authority’s transfer policy is. You have a right to this information. Ask your housing authority for a copy of its transfer policy.¹ Also read your lease because there will be information about transfers there, too. To figure out what your rights are, you first need to know whether you live in state or federal public housing.

State v. federal public housing

To figure out whether you live in state or federal housing, check your lease and other forms that you have signed, such as an income verification form.

If you see words like "federal public housing" or "HUD form no. 111" (HUD is the federal Department of Housing and Urban Development), you probably live in federal public housing.
If you see words like "state-assisted housing" or "Executive Office of Housing and Livable Communities" (EOHLC, the Massachusetts housing agency), you probably live in state public housing.

If it isn't clear from your lease or other forms relating to your tenancy, contact your tenant organization, if you have one, or the housing authority and ask someone there. It is perfectly reasonable to ask whether your housing is state or federal public housing because it can be confusing.

What types of transfers are there in state public housing?

If you live in state public housing, there are several different types of transfers.²

Serious conditions: There are conditions in your current apartment that pose a serious and immediate threat to your family’s health or safety that cannot be repaired within a reasonable time. Examples of such conditions include, but are not limited to: fire damage and condemnation.
Harassment or Abuse: You or someone in your household is being threatened in some way. This includes domestic violence.
Family size changes: The number of people in your apartment has changed and it is no longer the "appropriate size" for your household. In other words, your apartment is too big or too small.
Medical reasons: You or someone in your household has a compelling and documented physical or mental illness or impairment that could substantially be improved by a transfer to another available unit.
Management requested: These are transfers that your housing authority can make at any time for a sound administrative reason. Reasons for an administrative transfer can include: your apartment is too big or small, harassment or abuse, or maintenance issues.³
Good cause: A transfer for good cause is a transfer that you request for medical reasons or because your family size changes (both reasons are described above).⁴

What types of transfers are there in federal public housing?

If you live in federal public housing, there are a number of different types of transfers. Some are required (mandatory). Others are optional.⁵

Mandatory transfer policies

The following transfer policies are mandatory, which means that a housing authority is required to transfer a tenant:

Emergency conditions: There are conditions in your apartment, building, or development that pose a serious and immediate threat to your family’s health or safety that cannot be repaired within a reasonable time. Examples of such conditions include: fire damage, gas leak, no heat during the winter, no water, serious water leaks, and condemnation.⁶
Emergency: An emergency transfer to protect members of the household from domestic violence, or an attack, or to alleviate a medical condition of life-threatening nature.⁷
Family size changes: You are underhoused, which means that your family size has become too large for your apartment. Or you are overhoused, which means that your family size has become too small for your apartment. Housing authorities are required to make these types of transfer.⁸
Demolition, revitalization or rehabilitation: A housing authority is allowed to transfer tenants in developments facing demolition, sale, rehabilitation, or revitalization.⁹

Optional transfer policies

The following types of transfer policies are optional, which means that a tenant may request this type of transfer:

Reasonable accommodation: When you or someone in your household needs to move to a different apartment to accommodate a disability. An example would be if you need to move to a ground floor apartment because you cannot climb stairs.
Split family: Where a housing authority permits a very large family that has two adults to split into two households and be transferred to two apartments.¹⁰ (Not all housing authorities have this policy.)
Resident-initiated: Where you request a transfer that is not a necessity.
Incentive: These are transfers to new or rehabilitated apartments that the housing authority can make for residents with excellent residency histories.

Can I transfer public housing for medical reasons or if I have a disability?

Yes. You may request a transfer if someone in your household has a physical or mental health reason or if a member of your household has a disability.

The legal principle to know is that the housing authority has an obligation to provide a reasonable accommodation for people with a physical or mental disability. A reasonable accommodation is a change or adjustment that a housing authority makes that allows someone with a disability to use and enjoy their housing.¹¹ Examples of transfers based on a reasonable accommodation include:

Transferring to a first-floor apartment or building with an elevator when it is impossible for someone to climb stairs.
Transferring to another development run by the same housing authority to move a person who is recovering from drug addiction out of a neighborhood where former associates still engage in drug activity.
Transferring to a larger apartment in order to have an extra bedroom for a personal care attendant.

If you request a transfer for medical reasons, be prepared to get documentation of your medical illness or impairment, such as a letter from a doctor or health care professional describing your health problem and what housing conditions are required to help it.

Some housing authorities have different priorities for different types of medical transfers. If a resident’s medical condition is getting far worse due to existing housing conditions and could be improved by transferring, the housing authority may treat this as an "emergency" transfer. If, on the other hand, the medical condition is stable but could improve, the housing authority may still transfer the resident, but on a slower track. You need to check your housing authority’s policy to see if there are different priorities for different types of medical situations and what is needed to qualify for each kind of priority.

State public housing

Under state regulations, a transfer for medical reasons is considered a transfer for good cause. A transfer for good cause may be made between elderly and family public housing, if there are no appropriately sized apartments in the same type of housing.¹² If you feel that the apartment offered is not the appropriate size, you have a right to file a grievance.

Federal public housing

If a resident with a disability has requested a reasonable accommodation and the housing authority proposes a transfer as a way to accommodate the resident, the resident is not required to accept the transfer offer.¹³ However, the resident should consider whether the transfer may make sense, and if it does not, should suggest alternatives (for example, alterations to the existing unit that might make it accessible to the resident, or a transfer to a location closer to ongoing treatment).

Can I transfer public housing if I am facing domestic violence?

State public housing

In state public housing, you have a right to request a transfer if you or a member of your household is suffering from harassment or abuse.¹⁴ You also have a right to "reasonable and appropriate" assistance from the housing authority if you are a victim of domestic violence.¹⁵ This assistance includes the right to a prompt rekeying of your locks—upon your request—if you have obtained a restraining order against a member of your household. You may also ask the housing authority not to charge you (waive) the cost of rekeying.¹⁶

You need to think about what’s really needed for your safety. Sometimes if you stay in the same development, or even in the same community, the person committing violence may be able to find you. One option may be to switch to a Section 8 voucher or other "mobile" rental assistance with which you can relocate within or outside Massachusetts. (Many housing authorities have very limited Section 8 vouchers available at present, but there are sometimes special resources available for those at extreme risk who need to relocate.) Another option is when two housing authorities cooperate to transfer a state public housing resident from one community to another. This has happened occasionally in the past with proper documentation from law enforcement and the assistance of the state Executive Office of Housing and Livable Communities. In addition to pursuing abuse prevention remedies under the Abuse Prevention Law,¹⁷ you can ask the housing authority to seek an order barring a non-household member from the development,¹⁸or can sue the housing authority for failing to take action to bar the person.

You may also want to talk to the housing authority about being named as the head of household once the abuser has left the unit. Talk with the housing authority about this. Keep in mind, the housing authority may feel that it has to give the abuser a hearing before removing him or her as the named head of household.

Federal public housing

If you live in federal public housing, you have a right to request a transfer if you are facing domestic violence. This would be considered an emergency transfer.¹⁹

HUD guidelines say that housing authorities are allowed to adopt a transfer policy that includes a preference for victims of domestic violence. They can also have a policy that allows them to transfer you to another development, another neighborhood, or even another housing authority. A housing authority may also choose to give you a Section 8 voucher.²⁰

You may also want to talk to the housing authority about being named as the head of household once the abuser has left the unit. Keep in mind, the housing authority may feel that it has to give the abuser a hearing before removing him or her as the named head of household.

Is my state public housing apartment the right size for my household?

There are two terms that housing authorities often use when an apartment is either too small or too big for a family:

Underhoused is when your apartment does not have enough bedrooms for your household. The apartment is too small.
Overhoused means that your apartment has more bedrooms than your household size needs.

If you live in state public housing and are trying to figure out whether your apartment is an appropriate size for your household, the following requirements apply:²¹

Members of your household who are of the opposite sex may share a bedroom (but are not required to). Ordinarily, a husband and wife or adult partner must share a bedroom, as must children under the age of 8. There may be exceptions, however, where medically justified. For example, a spouse may have a breathing disorder and should not be required to share a sleeping area; or a child may have been the victim of sexual abuse and should not share a bedroom with another child.
People of the same sex must share a bedroom except in two situations: 1) if you are over 21, you do not have to share a bedroom with your child, grandchild, or legal ward; or 2) if you can provide reliable medical documentation that sharing a bedroom would have a severe adverse impact on a person’s mental or physical health. In addition, some housing authorities have obtained permission (waivers) from the Executive Office of Housing and Livable Communities allowing people of the same sex to have separate bedrooms where they are of different generations or there is a great difference in age.
Each bedroom must have at least 70 square feet of floor space, and there must be at least 50 square feet of floor space for each person in the bedroom.
Only bedrooms may be used for sleeping purposes. A living room, kitchen, bathroom, or hallway cannot be used for sleeping.

Is my federal public housing apartment the right size for my household?

There are two terms that housing authorities often use when an apartment is either too small or too big for a family:

Underhoused is when your apartment does not have enough bedrooms for your household. The apartment is too small.

Overhoused means that your apartment has more bedrooms than your household size needs.

In federal public housing there are no specific rules concerning how many people can live in a public housing apartment or share a bedroom. Your housing authority must, however, state the minimum and maximum number of people who may live in an apartment in its Admissions and Continued Occupancy Policy. Your housing authority may also address certain issues about how many people can occupy your apartment, as long as these standards do not discriminate against families with children.²² In general, two people are expected to share a room. But, in addition, policies may allow the following:²³

Babies under a certain age may share a bedroom with parents or two brothers and sisters.

People who have a disability or special medical needs may have a separate bedroom.

A parent who is the single head of household may not be required to share a bedroom with his or her child, although they may choose to.

A live-in aide may be assigned a separate bedroom, unless a family agrees to accept a smaller unit.

Some housing authorities provide that family members from different generations are not required to share a bedroom, even if they are of the same gender.

I live in federal public housing. I need to transfer to a bigger unit. What can I do?

You have the right to ask to be transferred to a different apartment if you are in an apartment that is too small for your household size. If you are in federal public housing, there are no absolute rules about children sharing a bedroom. However, all housing authorities have Administrative Plans that are available for you to review if you ask. The Administrative Plan will likely have guidelines about children sharing bedrooms and how to request a transfer for that and other reasons. Before requesting a transfer, read the Administrative Plan to find out what your housing authority’s transfer procedures are. You may be required to complete a transfer application. If you qualify for a transfer, your name will then be placed on a waiting list. The housing authority will notify you when an apartment is available.

I live in state public housing. I need to transfer to a bigger unit. What can I do?

You have the right to ask to be transferred to a different apartment if you are in an apartment that is too small for your household size. If you are in state public housing, children of the opposite sex over the age of eight do not have to share a bedroom. Generally, children of the opposite sex under the age of eight, and all children of the same sex may be required to share a bedroom. An exception to these rules is that no household member has to share a bedroom with another household member if it would affect his or her mental health. You will need to give the housing authority medical documentation to prove this. Before requesting a transfer, read the housing authority’s Administrative Plan. All housing authorities have these plans, and you can get a copy if you ask. You may be required to complete a transfer application. If you qualify for a transfer, your name will be placed on a waiting list. When your name comes up on the waiting list, the housing authority only has to make one offer in writing of a new apartment that is appropriate for your family size. You have seven days to accept or reject to the new apartment. This time period may be extended for good cause. If you reject the apartment, your name will be removed from the transfer list. If you reapply, you will not be entitled to any priority or preference received on your prior application for three years. It is possible that your housing authority’s Administrative Plan may include a more flexible policy than this, so make sure you ask to see the Plan in this situation.

Footnotes

1. If the housing authority has federal public housing, the transfer policy will also be in the Admissions and Continued Occupancy Policy. You can ask the housing authority for a copy of this.

2. 760 C.M.R. § 5.03, see definition of "Transfer for administrative reasons" and "Transfer for good cause."

3. 760 C.M.R. § 5.03, see definition of "Transfer for administrative reasons."

4. 760 C.M.R. § 5.03, see definition of "Transfer for good cause."

5. See Public Housing Occupancy Guidebook, 11.1 and 11.4 (June 2003).

6. According to the Public Housing Occupancy Guidebook, 11.1 (June 2003), any condition that would produce an emergency work order would qualify a resident for an emergency transfer if the housing authority were unable to make repairs in less than 24 hours. 24 C.F.R. §§ 966.4(h)(4), 901.25(a).

7. Public Housing Occupancy Guidebook, 11.1 (June 2003).

8. a href="//www.law.cornell.edu/cfr/text/24/966.4">24 C.F.R. § 966.4(c)(4).

9. See 42 U.S.C. § 1437p(a)(4)(A)(iii).

10. Public Housing Occupancy Guidebook, 11.1 and 11.5 (June 2003). According to the Guide, if a housing authority opts to have a split family transfer, the Administrative and Continued Occupancy Policy would include by way of example the following requirements: 1) both the original head of household and the new head of household must be listed on the most recent lease and recertification, 2) the family must be overcrowded according to the housing authority’s occupancy standards, 3) both heads must be legally capable of executing a lease, and 4) the reason for the family split must be the addition of children through birth, adoption, or court-awarded custody.

11. The federal Fair Housing Act requires "reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B) . See 24 C.F.R. § 100.204 . The concept of reasonable accommodation was drawn from § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (see 53 Fed. Reg. 45003, November 7, 1988), which prohibits discrimination against disabled people in federally assisted housing . See also 24 C.F.R. 8 et seq .

State law, at M.G.L. c. 151B, § 4(7A) , also includes the failure to make reasonable accommodation as an act of illegal discrimination. This means, as under the federal law, that a person with a disability has a right to expect her landlord to reasonably adjust rules or policies when necessary to allow her to live comfortably in her home.

While federal law ( 42 U.S.C. § 3604(f)(3) and 24 C.F.R. § 100.203 ) and state law require owners to allow disabled tenants to make reasonable modifications to their units at their own expense (which might include widening a doorway, installing a grab bar, putting in a louder doorbell, or lowering the light switches), the state law goes further for publicly assisted dwellings, requiring public housing authorities to pay for reasonable accommodation, subject to appropriation.

Note:

Reasonable accommodations do not include ramping for more than five steps or installing a wheelchair lift. M.G.L. c. 151B, § 4(7A)(1) and (7A)(3) . Under § 504, however, the only limit on provision of reasonable accommodations including structural modifications is "undue hardship." Thus, § 504, if available, may be the better route for structural modifications. As long as a housing authority administers some federal public housing or rental assistance, it should be subject to § 504 for all of its programs.

12. 760 C.M.R. § 5.03, see " Transfer for good cause."

13. Public Housing Occupancy Guidebook, Chapter 11, footnote 39, p. 149 (June 2003).

14. 760 C.M.R. § 5.03, see definition of "Transfer for administrative reasons."

15. 760 C.M.R. § 6.06(4)(q).

16. 760 C.M.R. § 6.06(4)(r).

17. M.G.L. c. 209A.

18. M.G.L. c. 121B § 32B et seq.

19. Public Housing Occupancy Guidebook, 11.1 (June 2003).

20. Public Housing Occupancy Guidebook, 19.4 (June 2003).

21. 760 C.M.R. § 5.03, see definition of "Appropriate Unit Size."

22. Public Housing Occupancy Guidebook, 5.0 (June 2003).

23. Public Housing Occupancy Guidebook, 5.4 (June 2003), which includes a long list of principles.