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Jersey City Housing Authority v. Ford

A-5657-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

LANDLORD-TENANT; EVICTION — A public housing authority may use its discretion in enforcing a one strike drug policy, but such discretion must be used in a lawful manner and there must be procedural safeguards in place before the authority can evict a tenant for a violation of that policy.

A resident of a public housing authority (PHA) for over thirty years was subject to the authority’s One Strike Policy regulating the conduct of tenants. The policy declared that all drug-related activity, whether on or off the premises, was cause for eviction. It was to be implemented and enforced evenhandedly and even included a listing of several mitigating factors to be used when determining whether to seek eviction. It even set out several non-eviction alternative sanctions to be considered where the criminal act was not committed on the premises by the head of household or spouse. Finally, the policy contained a section requiring written notice of a decision to terminate a lease and guaranteed tenants the right to an informal hearing before a manager. Each tenant signed a lease incorporating a copy of the policy.

One day, the tenant’s son, certified as a member of her household, was arrested and charged with various drug offenses. He pled guilty and was sentenced to prison. Then, the authority sent the tenant a notice of termination, demanding that she relinquish her premises or face eviction. The notice offered an opportunity for an informal hearing at which the tenant could respond to the notice. Such hearing took place several months later, the authority filed a complaint for eviction. At trial, testimony showed the tenant was not involved in her son’s activity, that the authority’s general policy was to proceed with termination, and that, at the informal hearing, not one question regarding the tenant’s individual circumstances was asked; rather, the tenant was simply informed that her case would result in termination. The tenant testified that she had no opportunity to explain her personal circumstances at the informal hearing. Despite this, the lower court entered a judgment of possession, finding that the notice to quit was proper and that, under law, and under applicable federal regulations, the authority had the discretion to employ its One Strike Policy.

The tenant appealed, and the Appellate Division reversed and remanded for further proceedings, holding that New Jersey provides a special cause of action for the eviction of PHA tenants under which the underlying law grants a PHA broad discretion and allows it to consider a wide range of mitigating factors when deciding whether to take an action against a tenant. The Court did observe, however, that the stringent nature of governing federal regulations allows PHAs to hold tenants strictly liable for drug-related offenses, and one strike policies have been broadly upheld by the United States Supreme Court. On the other hand, it emphasized that the United States Supreme Court also advised that local housing authorities have the discretion whether to impose the most severe sanction of eviction, taking into account any mitigating factors and should employ that remedy. To the Court, this meant that lower courts have a responsibility to determine whether a PHA has exercised its discretion in a lawful manner; i.e., the lower court was obligated to review any eviction determination under an abuse of discretion standard. An eviction is not mandated, but is permitted after suitable weighing of positive and negative factors. Because the informal hearing did not occur on the record, and the authority did not provide the tenant with a written determination, the lower court had an incomplete record when it tried to ascertain how the authority reached its decision to evict.

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