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Housing Authority of the City of Jersey City v. Thomas

318 N.J. Super. 191, 723 A.2d 119 (App. Div. 1999)

LANDLORD-TENANT; EVICTION—The federal law making drug related activities a ground for eviction in a public housing agency lease can not be read to evict a tenant whose apartment is invaded by a transgressor, even if the transgressor is the tenant’s own child.

A municipal housing authority sought to evict an elderly tenant based upon the arrest of her adult son, a member of the household, for possession of illegal drugs within the apartment. The eviction was sought under N.J.S. 2A:18-61.1(p). Under that section, a tenant may be evicted if the landlord establishes by a preponderance of the evidence that: (1) the tenant has permitted a drug offence within the leased premises, or (2) the tenant permits “such a person” to occupy the premises “continuously or intermittently.” The lower court found that the tenant was not involved in any drug-related activities, that her son no longer resided in the apartment at the time of his arrest, and that the tenant was unaware that her son had surreptitiously entered the apartment at the time of the police raid. The Appellate Division upheld the lower court’s denial of the eviction, holding that under New Jersey Law, “to justify the ultimate sanction of eviction under [the statute], a tenant must not only ‘permit’ a drug offender to occupy the leased premises, but also tolerate the offender’s occupancy of the premises knowing that such person has violated the [Comprehensive Drug Reform Act].” The housing authority contended, however, that federal law makes a tenant strictly liable for the conduct of his or her guest, and that federal law preempts New Jersey’s summary eviction statutes. The Appellate Division recognized that 42 U.S.C. sec.1437(d)(1)(5) requires every public housing agency lease to include a provision stating that “any drug-related criminal activity on or near [public project developments] engaged in by a public housing tenant, any member of a tenant’s household, or any guests or other persons under the tenant’s control shall be cause for termination of [the] tenancy… .” Nonetheless, the Appellate Division held that there was no breach of that provision because “[t]he simple and overriding fact remains, however, that no possible source of federal preemption can be read to require the summary eviction of a tenant whose apartment is invaded by a transgressor against his or her will.”


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