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Newark Housing Authority v. Martinez-Vega

LT-20023-11 (N.J. Super. Law Div. 2011)

EVICTION; HOUSING AUTHORITY — A landlord-tenant court adopts a list of nine factors that a housing authority, in its own regulations, set out as considerations that must be taken into account before choosing to evict a public housing tenant.

A search warrant was issued for a public housing apartment and the police arrested the tenant’s older son “after having found marijuana, heroine and a gun in a book bag in the apartment.”

The son didn’t live with his mother, the tenant, at the time, nor did he have a key to the house. Furthermore, she had thrown him out of the apartment about four years earlier. The son, however was “paralyzed and confined to a wheelchair, and [had] his medical supplies delivered to [his mother’s] apartment.” Before he picked them up, he would call his mother to let his mother know that he was coming “and he would only stay for a short time.” On the day of his arrest, he was accompanied by another individual and the mother was not home.

The Housing Authority sought to evict the mother based on New Jersey law which provides that a tenant who “knowingly harbors” a person who commits such a crime can be evicted.

According to the Court, “[a]s is frequently the situation in this type of case (i.e., [a] proceeding to evict persons who have not been shown to have participated in the events or been actually knowledgeable about the underlying facts justifying eviction), the evidence of their knowledge is not direct, but must be determined from circumstantial evidence.” Here, the Court found that the “evidence presented” led to the conclusion that the mother “did not participate in the offense and had no knowledge of it.”

Under federal law, public housing authorities “that have adopted policies, implemented procedures [] and can document that they appropriately evict any public housing residents who engage in certain activity detrimental to the public housing community” are rewarded. The regulations also specifically provide that a public housing authority “may require a tenant to exclude a household member in order to continue to reside in the assisted unit, where that household member has participated in or been culpable for action or failure to act that warrants termination.” On the other hand, New Jersey case law points out that the “federal statutory framework [] does not permit a Section 8 landlord to act in an arbitrary or capricious fashion.” Other New Jersey case law points out that courts “recognize that the federally mandated terms of [a public housing tenant’s] lease may very well warrant [] eviction from the premises based on the evidence that [someone] engaged in drug-related criminal activities in the leased premises [] [n]evertheless, under [the applicable federal regulations], the [public housing authority] retains the discretion to consider ‘all circumstances relevant to a particular case’ before invoking its rights under the lease.”

Based upon the federal and state legislation and case law reviewed by the Court, it decided that it had to engage in a “weighing process.” In doing so, it looked at the particular public housing authority’s formalized list of factors that the housing authority, itself, must consider “before commencing an eviction action against, arguably, non-culpable tenants and occupants.” Those factors were as follows: “a. [t]he seriousness of the offending action, especially with respect to how it would affect other residents; b. [t]he extent of participation or culpability of leaseholder, or other household members, in the offending action, including whether the culpable member is a minor; c. [t]he effects that the eviction will have on other family members who are not involved in the action or failure to act; d. [t]he effect on the community of the termination, or of [the housing authority’s] failure to terminate the tenancy; e. [t]he effect of the [housing authority’s] decision on the integrity of the Public Housing program; f. [t]he demand for housing by eligible families who will adhere to lease responsibilities; g. [t]he extent to which the leaseholder has shown personal responsibility and whether they have taken all reasonable steps to prevent or mitigate the offending action; h. [t]he length of time since the violation occurred, the family’s recent history, and the likelihood of favorable conduct in the future; and i. [i]n case of program abuse, the dollar amount of the underpaid rent and whether or not a false certification was signed by the family.”

The Court accepted these “policy factors” and concluded in this case that the “non-culpable family members [] should not be evicted” and dismissed the eviction complaint.

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