National Housing Law Project Housing Law Bulletin

Justice Prevails Again in North Carolina

The latest North Carolina case is Charlotte Housing Authority v. Fleming.³ The Charlotte Housing Authority sought to evict Martha Fleming because her adult son, Arthur, had been arrested near her apartment. Her son did not live with her. Just before his arrest, he had driven into the apartment complex, gotten out of his car and was standing with a group of people near his mother's apartment. Some police officers observed the group from their car and two of the men in the group attempted to flee. Arthur was caught and arrested for possession of cocaine with intent to distribute. Ms. Fleming had not invited her son to her apartment that evening, did not know he was coming to the complex until he had already arrived, and did not invite him in when she became aware that he was outside. Moreover, Ms. Fleming's son often came to the apartment complex without visiting his mother.

The Charlotte Housing Authority (CHA) sought to hold Ms. Fleming responsible for her son's conduct at the complex and to evict her because of it. The trial court agreed with the Housing Authority and granted a judgment of eviction. The Court of Appeal, however, disagreed and reversed the trial court's judgment.

The appellate court began with the proposition that under North Carolina law a tenant cannot be evicted unless the landlord clearly proves that an event has occurred that would give the landlord a right to evict under the lease. In addition, unconscionable evictions are prohibited.⁴ The court then examined the lease which provided, as many public housing leases provide, that the tenant's guests and visitors would not engage in criminal activity on or near the CHA property and that, if they did, the CHA could end the lease. The question for the court was whether the CHA had proven that Ms Fleming's son was her "guest" on the evening when he was arrested for possession of cocaine. Using the dictionary definition of guest, i.e., a person entertained in one's house, the court concluded that the evidence failed to establish that the son was the mother's guest at that time. She had not invited him there, was not aware that he would be coming beforehand, and did not extend him any hospitality after she became aware of his presence. Thus, the court could not consider him her guest.

The court's decision on this point is also consistent with the position taken by HUD in 1991 when it promulgated the revisions to its regulations on public housing leases. Those regulations were issued to implement a statutory provision that makes tenants responsible for the criminal activity of guests who are under their control.⁵ On the question of when a person should be considered to be a tenant's guest, HUD's regulations state that the person must be "in the leased unit with the consent of a household member."⁶ In explaining that definition, HUD stated

HUD agrees that the responsibility for criminal activity by a "guest" does not apply to the criminal activity by a former guest. The question under the HUD rule is whether the person in question was in the premises with the consent of a household member at the time of the criminal activity in question, not whether the person was a guest at some time in the past.

56 Fed. Reg. 51,562 (Oct. 11, 1991).

That view expressed by HUD when it issued the governing regulations is identical to the conclusion reached by the North Carolina court in this case. Unfortunately, that is not the view being expressed by HUD today. Now, with its "One Strike and You're Out" policy, HUD is encouraging housing authorities to link the presence of nonresidents to specific residents and then evict the entire household to whom the non-residents are linked.⁷ One can only hope that other courts, like the North Carolina court here, guided by the law and moral justice, will restrain the injustice that HUD is encouraging housing authorities to commit.

1. HUD, One Strike and You're Out (Mar. 26, 1996), discussed in HUD Pushes Aggressive Eviction Campaigns as the Answer to Crime in Public Housing: One More Time, 26 HOUS. L. BULL. 45 (Apr. 1996).
2. See, e.g., Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68 (N.C. Ct. App. 1995), discussed in Strict Liability Revisited as Grounds for Eviction, 26 HOUS. L. BULL. 11 (Jan. 1996); Maxton Hous. Auth. v. Mclean, 328 S.E.2d 290 (N.C. Sup. Ct. 1985).
3. No. 94 CVD 14363, ___ S.E.2d ___ (N.C. Ct. App. Aug. 6, 1996), 1996 WL 445103.
4. Id., slip op. at 3.
5. 42 U.S.C.A. § 1437d(l)(5) (West Supp. 1996).
6. 24 C.F.R. § 966.4(d)(1) (1996).
7. HUD, One Strike and You're Out (Mar. 26, 1996), at 11.