In principle, the federal housing-voucher program known as Section 8 ought to win points as a market-oriented alternative to the old command-and-control approach of planning and constructing public housing projects. While allowing recipients wider choice about where to live, it has also enabled private landlords to decide whether to participate and, if so, what mix of voucher-holding and conventionally paying tenants makes the most sense for a location. 

But there is another possibility, which is that Section 8 will in time bring with it onerous new restrictions on the private landlord-tenant relationship. For landlords, participation in the program has long carried with it some significant burdens of inspection, certification, and reporting paperwork. So long as participation was voluntary, these conditions were presumably worth it in exchange for the chance to reach voucher-holders as a class of potential tenants. When accepting Section 8 tenants stops being a voluntary choice, however, the balance is likely to shift. And one of the big policy pushes of the past decade — zealously promoted by the Obama administration — was the local enactment of laws and ordinances prohibiting so-called source-of-income discrimination, which in practice can mean making it a legal offense for a landlord to maintain a policy of declining Section 8 vouchers. Once that sort of control is in place, and landlords cannot opt out of the program, there will no longer be any natural check on Washington’s imposition of ever more burdensome conditions via Section 8 program rules on private landlords, including conditions that affect their relations with conventional non-voucher tenants. 

Now, in an en banc ruling, the Third Circuit has made clear another source of legal exposure for landlords participating in the program. A specialized portion of the program provides so-called enhanced housing vouchers to enable tenants to go on living in properties that once received “project-based” Section 8 support (akin to traditional low-income housing) but have been converted by their owners to conventional market-rate housing. Philip Harvey owned one such property a unit of which had long been rented to Florence Hayes. When Ms. Hayes died in 2015, Harvey sought to renovate the apartment for use by his daughter, while Ms. Hayes’s son wanted to take over as primary tenant. Litigation ensued and a three-judge panel of the Third Circuit ruled, over a dissent, that once her lease expired the law placed Harvey under no obligation to sign a new lease with her successor. 

On Aug. 31, however, the full Third Circuit by a lopsided margin overturned the panel opinion and ruled Ms. Hayes’s son had the right to take over as tenant and obtain lease renewals from Harvey under good behavior, and so did anyone else who had been on the lease (even as a child) at the time of such a property’s conversion. It construed language about how a tenant “may elect to remain” in a converted project as binding not just HUD in its obligation to provide assistance, but also as binding the landlord. Only Judges D. Michael Fisher and Thomas Hardiman, who had prevailed on the original panel, dissented. Various tenants’-rights amicus filers, as well as the City of Philadelphia, took the son’s side. 

Judge Fisher, in dissent, says the majority “overlooks the basic design of the enhanced voucher program as an incentive-based program, not a compulsory one.” But “overlooks” may not be the right verb. Maybe a better one is “takes another step to subvert.”