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Housing Authority of The City of Bayonne v. Otis-Williams

A-4000-01T5 (N.J. Super. App. Div. 2004) (Unpublished)

LEASES; HOUSING AUTHORITIES; DRUGS; EVICTION—Federal law does not require eviction of a so-called innocent lessee in a drug-related matter, but simply invests public housing authorities with the discretion to do so.

A husband and wife entered into a month-to-month lease agreement with the local housing authority under a federally-funded housing program. Two years later, the couple separated and the husband moved, but kept a key and continued to return to visit his children. Two years after he moved out, the police executed a search warrant for the apartment and found drugs in a man’s jacket as well as in the master bedroom closet. The husband admitted that the jacket was his. Allegedly, his wife had not known about the hidden drugs. Nonetheless, she was also arrested, but the charges against her were later dropped. Her husband pled guilty.

Only three months after the raid, the couple signed a new lease. At that time, they acknowledged, by signature, receipt of the housing authority’s handbook containing a description of the authority’s “One Strike and You’re Out Policy.” This policy provided that any criminal activity, including any drug related activity, was grounds for eviction. The prior lease was not as specific. The husband returned to living in the apartment.

A year after the new lease was signed, the housing authority sent the couple a Notice to Cease, notifying them that, based on their August 7, 1999 arrests and the husband’s two previous arrests, eviction might be sought under the One Strike Policy. Nine months after sending the Notice to Cease, the authority sent a Notice to Quit. By this time, the husband had entered a drug rehabilitation program, and, by law, this precluded the housing authority from continuing eviction proceedings against him. However, the authority still sought to evict the wife.

After a trial, the lower court ruled in favor of the wife and found that the housing authority did not meet its burden of proving that the wife possessed or knew about the drugs. The housing authority appealed, and the Appellate Division ordered a limited remand for the trial court to reconsider the case in light of a recent United States Supreme Court decision. That decision validated 42 U.S.C. § 1437d(1)(6), which requires federally-funded public housing authorities to place, in every lease, a provision giving the housing authority discretion to evict tenants for drug-related activity, even that of household members and guests, and even if the tenant did not know of the activity. After considering this decision in the context of the case. The lower court found that the wife could be evicted because drug activity had occurred in her apartment and the housing authority reasonably exercised its discretion in seeking her eviction.

On further appeal, the Appellate Division had that the Supreme Court’s decision did not require eviction of a so-called innocent lessee, but simply vested public housing authorities with the discretion to do so. The Court looked at a non-binding letter produced by the Department of Housing and Urban Development (HUD) interpreting the Supreme Court’s decision. HUD’s letter opined that housing authorities could consider a wide range of factors when deciding whether, and who, to evict given the Supreme Court’s decision. Some factors listed were the seriousness of the violation, the effect that eviction of the entire household would have on innocent household members, and the willingness of the head of the household to remove the wrongdoing household member from the apartment as a condition for continued occupancy. The Appellate Division ruled that evaluation of these factors was critical. Here, where the housing authority was seeking to evict the wife even though it couldn’t proceed against her husband, the criminal offender.

The Court was also concerned that the couple had signed the new lease three months after the drugs had been seized. As a result, the predicate for the eviction occurred before the signing of the new lease. There was no evidence that drug activity was continuing. In fact, the opposite was the case; the husband had undergone rehabilitation. The Court thought the housing authority should have assessed whether the wife had participated in the offending action. The wife testified that she had no knowledge of the drugs.

Finally, the Court focused on the strong public policy to keep families together. It was concerned that evicting the wife would adversely affect her children. Therefore, it was crucial to determine whether the wife was their custodian. It asked if the father, who could not be evicted because of his participation in the drug rehabilitation program, could take care of the children without his wife living in the apartment. Since the housing authority didn’t perform any such analysis, the Court vacated the eviction, holding that the housing authority abused its discretion.

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