Local Governments May Insist on Landlord Participation

On June 9, the United States Supreme Court refused to hear the case of Glenmont Hills Assoc vs. Montgomery County, Maryland, a case that addressed whether state and local governments have the authority to mandate participation in the Section 8 Housing Choice Voucher even though it is voluntary under federal law.

As a result, the lower court ruling will stand. The findings in that case concluded that Montgomery County's ordinance was not preempted by federal law and that the landlord had violated the ordinance by refusing to participate in the Section 8 program. The California Apartment Association has filed a motion to file an amicus brief in the Supreme Court case.

So what does this mean for California? Currently, California state law does not specifically mandate rental property owners' participation in the Section 8 program. California's definition of "source of income" contains language that is intended to exclude Section 8 vouchers, so that the program remains voluntary for landlords. The law provides:

"Source of income" is defined as "lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. For purposes of this section, a landlord is not considered a representative of a tenant." (Government Code Section 12955 (p)(1))

California's Department of Fair Employment and Housing agrees that the Section 8 program's rent subsidies are not included in California's definition of source of income. According to the Department, "Source of income is defined in the law as 'lawful verifiable income paid directly to a tenant or a representative of a tenant.' Section 8 is a federal program providing rental subsidies for individuals who meet certain financial criteria paid directly to a landlord and, as such, it is not included in the definition of source of income."

Alternatively, some cities in California do prohibit owners from discriminating against individuals who hold Section 8 vouchers. None of these local laws, however, have been tested as to their conflict with California state law.