Read the full brief here
National Low Income Housing Coalition
National Housing Voucher Summit 2005
Briefing Paper: Portability
The term “portability” refers both to the right of voucher holding families to move outside the jurisdiction of the public housing agency (PHA) that issues the housing choice voucher, and to the administrative system that HUD has developed to deal with these transfers.
Voucher “portability” is related to, but not the same as voucher “mobility.” The latter term generally refers to a move from a higher poverty (or racially concentrated) neighborhood to a lower poverty (or non-racially concentrated) neighborhood. Mobility moves, if they cross jurisdictional lines, may often involve portability. However, not all portability moves are to lower poverty neighborhoods or jurisdictions. The important role of the portability system in enabling housing mobility is the reason that restrictions on portability are a civil rights issue.
The right to portability is found in statute; the implementing regulations state that, subject to certain conditions, “a voucher-holder or participant family has the right to receive tenant-based voucher assistance in accordance with requirements of this part to lease a unit outside the initial PHA jurisdiction, anywhere in the United States, in the jurisdiction of a PHA with a tenant-based program under this part.”1
In contrast, HUD Notice PIH 2005-1, adopted in response to the fiscal constraints imposed by the recent HUD budget, provides that “a PHA has the authority to deny a family’s request to move under the portability procedures to a unit in another jurisdiction that would require the PHA to pay a higher subsidy cost for the same family’s assistance if the PHA determines it does not have sufficient funding available under their calendar year 2005 budget…and the receiving PHA will not absorb the family into its own program.”
Advocates contend that portability is an enforceable right, and that the portability statute and regulations (as well as the Fair Housing Act) bar the blanket restrictions that HUD has recently sought to impose on higher-rent portability moves. HUD relies on its regulation 24 CFR 982.314(e)(1) which provides that “[t]he PHA may deny permission to move if the PHA does not have sufficient funding for continued assistance.” But another part of the regulation (24 CFR §982.355(e)(6) provides that “a PHA must manage the PHA tenant-based program in a manner that ensures that the PHA has the financial ability to provide assistance for families that move out of the PHA program under the portability procedures.” This issue has not yet been litigated, in part because some PHAs have permitted portability when an attorney makes the request on behalf of an individual client.
Portability: A Brief History
Although housing choice and mobility were part of the original concept of the Section 8 program, 2 during the first 13 years of the program, certificate tenants did not have an unlimited statutory right to move outside the city where their certificate was issued. In the 1970s, HUD and some local PHAs experimented with programs that helped families move across jurisdictional lines,3 and HUD officially directed PHAs to permit broader use of certificates throughout metropolitan areas.4 These efforts were followed, in 1983, by the creation of a small demonstration program of “vouchers” that later gained greater portability rights than certificates.5 But it was not until 1987 that Congress amended the Section 8 statute to permit certificate holders to use their subsidies throughout their metropolitan area.6 In 1990, HUD began to enforce the portability rights of voucher and certificate tenants,7 and later that year, the Section 8 statute was again amended to permit statewide portability for certificate holders.8 In 1998-99, the program was again expanded to allow nationwide portability.9 After 1990, and until HUD’s latest notices, the only restriction on portability was a provision passed in 1992 that required new voucher holders who had not previously resided in a jurisdiction to use their subsidies within the jurisdiction for at least 12 months before being allowed to take them elsewhere.10 This provision was replaced in 1999 by a provision that permits, but does not require, the 12-month waiting period as part of the PHA Plan.11
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- The current portability statute is set out at 42 USC § 1437f(r) and the regulations are found at 24 CFR § 982.353. Current HUD guidance on portability includes HUD Notice PIH 2004-12 and the more recent HUD Notice PIH 2005-1.
- See Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 101(a)(1), (c)(6), 88 Stat. 633, 633- 34 (codified as amended at 42 U.S.C. § 5301 (1988)).
- See generally METROPOLITAN ACTION INSTITUTE, MORE PLACES TO LIVE: A STUDY OF INTERJURISDICTIONAL HOUSING MOBILITY PROGRAMS (1982).
- See HUD SECTION 8 HANDBOOK (1979) at ch. 7.
- The “original” Section 8 voucher program included only 11,063 subsidies in its first year. See U.S. GEN. ACCT. OFF., GAO/RCED-87-20FS, RENTAL HOUSING: POTENTIAL REDUCTION IN THE SECTION 8 EXISTING AND VOUCHER INVENTORY 14. tbl. 2.1 (1986). Regulations governing portability in the voucher program did not appear until 1988. See Section 8 Housing Vouchers, 53 Fed. Reg. 34,372, 34,409-11 (1988) (codified as amended at 24 C.F.R. §§ 887.551-.567 (1994)). Those regulations require PHAs to permit up to 15% of their voucher holders to move outside of the PHA’s primary service area to anywhere in the United States. See 24 C.F.R. § 887.563 (1994). The voucher program was made permanent in the Housing and Community Development Act of 1987, and merged with the Section 8 certificate program in 1998.
- Housing and Community Development Act of 1987, Pub. L. No. 100- 242, § 145, 101 Stat. 1815, 1852 (codified as amended at 42 U.S.C. § 1437f(r) (Supp. V 1993)) (providing that Section 8 recipients may move to eligible units within the same state or contiguous “metropolitan statistical area” as the PHA issuing the certificate).
- See HUD Notice H 90-43 (July 2, 1990), replaced by HUD Notice 91- 19 (Mar. 4, 1991).
- Cranston-Gonzalez National Affordable Housing Act of 1990, Pub. L. No. 101-625, § 551, 104 Stat. 4079, 4224 (codified as amended at 42 U.S.C. § 1437f(r)(1)). 9 Quality Housing & Work Responsibility Act of 1998; implemented in Interim Statutory Merger Rule, 64 Fed. Reg. 26632 (May 14, 1999); Final Rule, 64 Fed. Reg. 56894 (October 21, 1999) 10 Housing and Community Development Act of 1992, Pub. L. No. 102-550, § 147, 106 Stat. 3672, 3715 (codified as amended at 42 U.S.C. § 1437f(r)(1) 11. 64 Fed. Reg. 26632, 26646 (May 14, 1999); see 24 CFR § 982.353 (c)(2)(iii).
