In This Issue

• Tenant Evictions – Recent Developments
  • HUD's "One-Strike" Policy Under Attack
  • Eviction of Disabled Tenants
  • Eviction for Nonpayment of Rent – Rent Adjustments

Tenant Evictions – Recent Developments

HUD's "One-Strike" Policy Under Attack

Lawrence F.
Feheley

HUD's final "one-strike" rule, which prohibits PHAs and landlords from admitting anyone engaged (or believed to be engaged) in illegal drug use or alcohol abuse, went into effect on June 25, 2001. The rule prohibits the admission of an applicant if any household member has been evicted from assisted housing in the prior three years. In addition, HUD has also mandated that PHAs and owners must develop lease terms that provide for the eviction of individuals who engage in this activity - the lease must provide that drug or criminal activity on or near the premises by any "tenant, household member, or guest," or anyone else "under the tenant's control," is grounds for termination of the lease.

While the final rule was pending, in January, 2001 the Ninth Circuit Court of Appeals rejected one of the principal aspects of the rule and held that a PHA could not evict an "innocent" tenant. In Rucker v. Davis, 237 F.3d 1113 (9th Cir. 2001), the appeals court blocked an eviction of a tenant that was based on the off-premises drug-related criminal activity of a household member. In reaching this result, the court ruled that HUD's regulation, which permits eviction regardless of any personal involvement by the tenant in the criminal activity, is contrary to the congressional intent expressed in the Housing Act, at 42 U.S.C. §1437d(1)(6). The court decided that the statutory mandate of being "under the tenant's control" is required not only for outsiders, but also for the tenant's household members and guests. The court ruled:

"Today we adopt the interpretation and hold that if a tenant has taken reasonable steps to prevent criminal drug activity from occurring, but, for a lack of knowledge or other reason could not realistically exercise control over the conduct of a household member or guest, Section 1437d(1)(6) does not authorize the eviction of such a tenant."

The court's ruling was directly contrary to the position taken by the government for a number of years. A number of state courts and lower federal courts have considered the "innocent tenant" issue, with varying results. For example, the Tennessee Supreme Court ruled this year that when a tenant's guest was arrested for possession of drugs, the tenant cannot be evicted unless they "knew or should have known" about the possession. Memphis Housing Authority v. Thompson, 38 S.W. 3d 504 (Tenn. S.Ch. 2001). The court cited rulings to the same effect from Illinois, North Carolina and Pennsylvania, and also noted contrary rulings from California, Michigan, Louisiana, Minnesota, and New York.

In Ohio, in August the Stark County Court of Appeals also rejected HUD's "one-strike" policy, ruling that a tenant could not be evicted if they did not invite a marijuana-smoking guest into the apartment unit. Stark Metrop. Housing Authority v. Dorsey, 2001 WL 951699 (Stark Co. 2001). In this case, the PHA asked the tenant to keep a certain individual, who was known for drug activity, out of her unit. The tenant testified that she was unaware that the individual was in her apartment when the housing manager smelled marijuana and found him in the unit. The tenant said that a friend was in the unit, watching her children while she was at the doctor's office, and that the friend allowed the individual to enter. The Ohio court ruled that since the individual was not a guest or an invitee, the tenant could not be held responsible for his conduct.

The Rucker decision is the only federal appellate court decision on this issue. However, the 11th Circuit is now being asked to decide the same issue in a case named Burton v. Tampa Housing Authority. If the 11th Circuit adopts the government's view, and rejects that of the Rucker court, it is likely that the U.S. Supreme Court will be asked to resolve the issue.

Essentially, under the approach dictated by the Rucker decision, if a PHA wants to evict a tenant for the off-premises activity of any other person, it must be able to prove that the tenant knew, or reasonably should have known, of the criminal activity and did nothing to stop it. This will usually be a very heavy, if not impossible, burden to sustain.

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Eviction of Disabled Tenants

The federal Fair Housing Act, 42 U.S.C. §3601, requires landlords to reasonably accommodate the housing needs of the disabled. The Sixth Circuit Court of Appeals recently considered such a case, in the context of a mentally disabled tenant who made excessive noise in the apartment unit. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039 (6th Cir. 2001).

In this case, the tenant who lived above the disabled tenant complained to the landlord over twelve times about the noise below, which usually involved door-slamming and yelling. In response, the landlord contacted the disabled tenant's social worker, soundproofed the front door, and offered the complaining tenant the opportunity to move to a different unit (which she refused). Ultimately, the landlord served notice to vacate on the disabled tenant.

The disabled tenant argued that the landlord could have reasonably accommodated his disability by moving him to another apartment, by contacting his social worker to intervene whenever an incident occurred, by soundproofing his whole apartment, and even by placing a hard-of-hearing tenant in the unit above. The court rejected these notions, observing that moving the tenant would merely transfer the problem to other neighbors —"as a matter of law, the (neighbor's) rights did not have to be sacrificed on the altar of reasonable accommodation."

A similar result was reached in South Dakota, where the state Supreme Court considered a circumstance where a disabled tenant's conduct involved threatening behavior toward other tenants. Arnold Murray Constr., LLC v. Hicks, 621 N.W. 2d 171 (S.D. Sup. Ct. 2001). In this case, the tenant suffered from a neurological disorder that affected his speech, vision, and walking, and which caused him to suffer uncontrollable emotional outbursts. After the landlord issued an eviction notice, the tenant sought to block the eviction, claiming that the Fair Housing Act required that his disability be reasonably accommodated. The court ruled that no reasonable accommodation could eliminate the risk that the tenant posted to the health and safety of the other tenants.

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Eviction for Nonpayment of Rent – Rent Adjustments

Eviction for nonpayment of rent is a fairly common occurrence. A Connecticut state court has ruled, however, that a tenant's rent adjustment must be taken into account before an eviction will be permitted. East Hartford Housing Authority v. Colon, 2001 WL 1838577 (Conn. Super. 2000). The tenant in this case received Social Security disability assistance, and supplemental assistance. After he began his lease he lost the supplemental assistance. He provided information regarding the reduced benefits to the PHA. The court prohibited the eviction, which was based upon nonpayment of the prior, original rental amount. Although the court acknowledged that the Regulations do not specify how interim adjustments are to be made, the court ruled that a PHA "has a duty to make appropriate adjustments to a tenant's rent upon receipt of verified information regarding a change in income or circumstances."

The other side of this coin was considered in Minnesota. In Chancellor Manor v. Thibodeaux, 628 N.W. 2d 193 (Minn. App. 2001), the court ruled that a PHA acts permissibly when it evicts a tenant for failure to report additional income only if it can prove that the omission was fraudulent. In this case, the tenant was unemployed when she began her lease, and her only income was state assistance. During her recertification examination the PHA learned that she had been employed and did not report her income. When the landlord sought to evict her, the tenant responded that she did not know that she was required to report the income because her employment was only for a short duration. The court limited an eviction to only those circumstances that could be characterized as fraudulent, and stated that "in cases where a tenant fails to disclose changes in income or household residents, to be a material noncompliance (under the lease) the failure must have been fraudulent." The court further ruled that where a failure to report income is due to a misunderstanding of the rules, or simply forgetting to report, the failure will not rise to the level of a "material noncompliance."

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