In This Issue

• Tenant Matters
  • Section 8 Tenancy
  • Nonpayment of Rent – Section 8
  • Public Housing – Damage Assessment
• Employment Issues
  • Punitive Damages
  • Workplace Searches

Tenant Matters

Section 8 Tenancy

Lawrence F.
Feheley

An Ohio appellate court has ruled that a PHA can terminate a tenant's eligibility because of a failure to give proper notice of vacating the unit and a change in family size. In this case, the period of ineligibility imposed by the PHA was five years.

The Section 8 tenant claimed that she left the unit because of a mold problem that aggravated her child's asthma. The problem forced the child to live with a relative. The landlord claimed that the tenant vacated the unit prior to the end of the lease term because she had to care for her mother, who was seriously ill. In either event, the tenant moved all of her furniture out of the apartment and disconnected the phone. The PHA then notified the tenant that she was ineligible for assistance for five years. The reason given was because she left her unit without giving proper notice to the PHA and she had not reported the change in her family size.

The court ruled that the tenant had voluntarily vacated her unit, and that she was not evicted. The court also upheld the imposition of the five-year period of ineligibility. Godfrey v. Miami Metropolitan Housing Authority, _____ Ohio App. 3d ____, 1997 WL 446857, No. 96 CA 46 (Miami Co. 1997).

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Nonpayment of Rent – Section 8

Most landlords assume that a tenant's failure to pay rent is an unimpeachable cause for eviction. That is not always the case, at least not in Crawford County, where a landlord has a history of accepting late rent payments.

The Crawford County Court of Appeals has ruled that the nonpayment of rent is not presumptively good cause for eviction of a Section 8 tenant. In the case, the Section 8 owner gave the tenant a termination notice for failure to pay the rent. The lease provided that the rent was due on the first of the month, allowed a five-day grace period, and assessed a dollar-a-day late fee for each day the rent was late. In the past, the tenant had frequently been late with her rent payment, but had paid all of the back rent and late fees, which the landlord had accepted. In this instance, the tenant paid the rent and late fee, but the landlord did not accept it and instead deposited the payment with the court.

The tenant challenged the eviction, alleging noncompliance with the lease, federal regulations, and state law. The tenant's primary argument was that she was evicted without "good cause," as required by the federal regulations, because she had tendered the rent payment, even if it was late. The court agreed. The fact that the lease provided for a grace period and imposed a penalty for late payments led the court to conclude that a late payment did not necessarily amount to grounds for eviction. The court also intimated that eviction for nonpayment of rent may not be proper if the nonpayment was not "willful or deliberate." Real Properties Service Management v. Harigle, ____ Ohio App. 3d ____, 1997 WL 430773, No. 3-96-21 (Craw. Co. 1997); Real Properties Services Management v. Anatra, ____ Ohio App. 3d ____, 1997 Ohio App. LEXIS 3485 (Craw. Co. 1997).

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Public Housing – Damage Assessment

Can a PHA tenant be held liable for damages to a unit they formerly occupied? An Ohio appellate court has ruled that the answer is "yes."

The Lorain Metropolitan Housing Authority (LMHA) sought to evict a tenant because she didn't pay maintenance charges that she incurred in her previous unit. A guest in her apartment had started a fire, damaging the unit, and the tenant therefore moved to a different unit. She was assessed $92 in damages, which she was given fourteen days to pay. When she didn't make the payment, LMHA served a notice of lease termination.

The lower court ruled that the tenant could be evicted from her present unit only for lease violations pertaining to that current unit. The appellate court reversed that ruling. The basis for the appeals court ruling was LMHA's lease, which specifically provided that the PHA could claim rent or charges arising from "any prior lease with the tenant." The appellate court ruled that the PHA was therefore entitled to restitution of the current unit because the tenant had not paid for the damage to the former unit. Lorain Metropolitan Housing Authority v. Manage, ____ Ohio App. 3d ____, 1998 WL 46743 (Lorain Co. 1998).

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Employment Issues

Punitive Damages

Can an employee recover punitive damages against a PHA? One federal court has ruled that punitive damages cannot be recovered.

In this case, the employment of a police officer employed by the PHA was terminated after he suffered a back injury. He sued the PHA, alleging unlawful discrimination on the basis of a disability. The jury found in favor of the discharged officer. The award given by the jury included both compensatory (emotional distress) and punitive damages. On appeal, the PHA argued that a PHA should not have to pay punitive damages.

The court ruled that because the PHA was a government agency, the officer was not entitled to collect punitive damages under either the federal or state anti-discrimination law. Curran v. Philadelphia Housing Authority, ____ F. Supp. ____, 1997 WL 587371 (E.D. Pa. 1997).

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Workplace Searches

Can a public employer search an employee's desk and filing cabinets? As exemplified by a recent ruling in Illinois, the courts usually hold that such searches are permissible.

The case involved an investigation for the Illinois Department of Children and Family Services. The employee kept documents, reports, and photographs relating to child abuse investigations in her desk and her personal filing cabinet in her office. After the agency received a tip that she was keeping pornographic photographs in her office, the Department conducted a search. No employees were present in the facility when the search was performed. The Department was assisted in the search by the sheriff's office, state police officers, and a U.S. postal inspector. No search warrant was obtained. Since the desk and the file cabinet were locked, the searchers broke into them. No incriminating evidence was discovered. Nonetheless, the employee sued for invasion of privacy and for an unconstitutional search.

The Seventh Circuit Court of Appeals ruled that the search was legal. The court first determined that, despite the assistance of the police officers, this was a "workplace search" and not a criminal investigation. Under those circumstances, the law provides that the search is legal if it is "reasonable under all the circumstances." Because the Department searched work-related places, and not personal items, the employee could not have a high expectation of privacy. The court then held that a search is "reasonable" if (a) it is justified at its inception (here, the tip with specific allegations), and (b) it is reasonably related in scope to the circumstances prompting the search (here, only those places where pornographic pictures would likely be stored were searched). Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997).

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