National Housing Law Project Housing Law Bulletin

Strict Liability Revisited as Grounds for Eviction

Advocates working with HUD-assisted housing tenants routinely encounter the problem of public housing authorities (PHAs) and owners seeking to evict tenants for the criminal acts of others. Commonly these cases also involve no evidence of the tenant's knowledge or participation in the offending activity. Consequently, nothing the tenant could have done would avoid the threat of eviction. In many cases the wrongdoers are no longer even part of the household, either because of arrest and incarceration or because they have been told to leave. Yet in many cases housing providers continue to pursue eviction of the innocent remaining family members.

Over the years many courts, and Congress as well, have recognized that eviction in these circumstances would unfairly punish those who have no culpability and would accomplish nothing. Yet these eviction attempts persist because HUD's regulations and notices allow them, and the text of the federal statute itself does not prohibit them. Recently, in a case made difficult because of the extremely serious nature of the criminal conduct involved, the North Carolina Court of Appeals refused to evict a long-time resident whose son was charged with the murder of another tenant. Charlotte Hous. Auth. v. Patterson, No. 9326DC1269, ___ S.E.2d ___ (N.C. Ct. App. Nov. 7, 1995).

The tenant facing eviction in Patterson had resided in a PHA unit for many years. Her household consisted of herself, two teen-aged daughters and a son. Shortly after her son was charged with the murder of another tenant, the PHA sought to terminate her tenancy. Allegedly breached was the standard form lease language for public housing required by the Anti-Drug Abuse Act of 1988, as amended in 1990.¹

At trial, the court found that the tenant had no knowledge of the shooting until after the incident and no reason to know that her son might commit such a violent crime. The weapon was not kept in her home, nor did it belong to any household member. The trial court therefore found that the tenant was not personally at fault for the shooting, and thus could not be evicted under the federal statute, rejecting strict liability for the unforeseen criminal act that breached the lease.

The Court of Appeals unanimously affirmed the trial court judgment, emphasizing the legislative history of the federal statute that clearly rejects the strict liability principle. When amending the drug eviction statute in 1990, the Senate Committee took great pains to emphasize that each case required individual evaluation by PHAs and the courts, and that eviction would not be appropriate if the tenant did not know of the criminal activity or had taken reasonable steps under the circumstances to prevent the crime.² Despite the apparent clarity of the statutory language's authorization of strict liability evictions, the Court of Appeals was willing to look to the legislative history because it expressed a clear legislative intent to the contrary.³ The court found this intent controlling. Added support came from an earlier North Carolina Supreme Court holding in a nonpayment case requiring personal fault or a "causal nexus" between eviction and a tenant's own conduct.⁴ The court concluded: "to evict [the defendant] and her daughters with no evidence of fault on their part would be inconsistent with the federal statute . . . and would shock our sense of fairness."⁵

In another, recent, to date unpublished, decision on the same issue, a lower level appellate court in California reached the opposite result, ignoring the legislative history.⁶ There a family was evicted from public housing because their adult son, who lived with them, was found to possess drugs. The stipulated facts cited by the court were that the family had no prior knowledge nor reason to know that the son possessed drugs, and that the offender was forced to move out after the arrest. The court held that the eviction of the innocent leaseholders was legal because it was based on "their failure to assure that illegal drug-related conduct did not take place in their household."⁷

If faced with conflicting decisions, Patterson provides the stronger authority because of its consideration of the legislative history often ignored by other courts — legislative intent that is far more consistent with good cause principles for termination of federal benefits.

1. 42 U.S.C.A. § 1437d(l)(5) (West 1994) states that each PHA must utilize leases which:

   (5) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy…

2. S. REP. N0. 316, 101st Cong., 2d Sess. 179 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5941:

   [E]ach case will be judged on its individual merits and will require the exercise of humane judgment by the PHA (public housing agency) and the eviction court. For example, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent this activity.

   See also id. at 5889 (similar legislative history concerning the same lease language for the Section 8 Existing Housing program).
3. Citing INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987), and Avco Financial Services v. Isbell, 312 S.E.2d 707, 708 (N.C. App. 1984).
4. Maxton Hous. Auth. v. McLean, 328 S.E.2d 290 (N.C. 1985).
5. Charlotte Hous. Auth. v. Patterson, slip op. at 9-10.
6. City of South San Francisco Hous. Auth. v. Guillory, No. AD-4140 (Cal. Super. Ct., App. Dept., Oct. 12, 1995).
7. Id., slip op. at 9.