National Housing Law Project Public Housing

DATE: June 2000
In 1988 Congress amended the public housing statutes to make criminal activity grounds for eviction.⁽²⁾ There are similar statutory provisions governing evictions under the tenant-based programs.⁽³⁾ For project-based low income housing, HUD published regulations on the issue.⁽⁴⁾ In addition, both public housing authorities and owners of federally assisted housing are required to use leases that allow the eviction of tenants whom the owner determines are illegally using drugs or whose use of drugs or abuse of alcohol interferes with the right of peaceful enjoyment of other tenants.⁽⁵⁾

In 1996 for public housing, HUD released a public relations document entitled "One Strike and You're Out"⁽⁶⁾ which encouraged a policy of leasehold forfeiture in cases of drug related activity or criminal activity regardless of the tenant's knowledge of the activity or ability to control the activity. HUD heavily marketed the lease forfeiture policy to owners and PHAs. Vigorous and thoughtless application of this policy has led to needless suffering and injustice. 

History and Significant New Developments

The "One Strike and You're Out" Policy was introduced by President Clinton in his 1996 State of the Union Address.⁽⁷⁾ In April of 1996, HUD introduced the policy through PIH 96-16. Although introduced as new, the public housing statutes governing the "One Strike" policy had been in place since 1988.⁽⁸⁾ In 1990, the Cranston-Gonzalez National Affordable Housing Act amended the statute. In regards to provisions relating to "criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises" the 1990 Act added "or any drug-related criminal activity."⁽⁹⁾ In 1996 the Act was further amended such that the words "on or near the premises" were replaced with "on or off the premises."⁽¹⁰⁾ The Act was redesignated as 42 U.S.C. § 1437d(l)(6) in 1998 and remains in that form today.

The Quality Housing and Work Responsibility Act of 1998 (QHWRA) also made some changes to the public housing statute affecting tenants' procedural rights including the expansion of categories of cases that may be excluded from the grievance procedures and shortening notice periods for eviction.⁽¹¹⁾

QHWRA also added provisions regarding standards and lease provisions regarding the use of illegal drugs and abuse of alcohol by any household member that interferes with the rights of other tenants.⁽¹²⁾ These provisions are applicable to evictions by both public housing authorities and federally assisted owners. QHWRA also added provisions making it cause for eviction if a tenant is a felon fleeing prosecution or violating conditions of probation or parole.⁽¹³⁾

In July 1999, HUD published proposed regulations which set forth comprehensive policies for the denial of admission to applicants who engage in illegal drug use or other criminal activity and for evicting or terminating assistance of persons who engage in such activity.⁽¹⁴⁾ It is anticipated that these regulations will soon be final. You should check to see if they are because if adopted as proposed, they will substantially alter the current regulations.

Recently, the Ninth Circuit issued an opinion with a well reasoned dissent vacating a preliminary injunction against eviction of three tenants whose children or grandchildren were engaged in drug-related activity either near the housing complex or on the premises.⁽¹⁵⁾ These plaintiffs all claimed to have no knowledge of the criminal activity. The fourth plaintiff's eviction was allowed due to the drug-related activity of his care-giver for which tenant had prior notice of such activity. The Court held that a tenant may be evicted on the basis of drug-related criminal activity engaged in by a household member on or near the premises regardless of whether the tenants was personally aware of such activity. The tenants have filed a petition for rehearing and rehearing en banc. The tenant's petition and two amicus briefs are included in this packet. These documents in addition to the dissent should be helpful to advocates who are seeking to distinguish and discredit the majority opinion in Rucker.

Significance

Evicting innocent tenants for criminal activity over which they had no knowledge or control has many ramifications beyond the obvious of depriving an innocent tenant of her home and her property. Such an eviction also deprives public housing tenants of grievance opportunities.⁽¹⁶⁾ Furthermore, a tenant evicted for drug-related criminal activity from federally assisted housing defined to include public housing, and Section 202, 811, 221(d)(3), 236, 514 and 515 projects are also ineligible for housing assistance for three years following that eviction.⁽¹⁷⁾ In addition, Congress allows PHA to gain access to a tenant's criminal records for use in eviction actions through the use of signed releases.⁽¹⁸⁾ Owners of project-based Section 8 housing, but not other types of federally assisted housing, may access this information through the PHA.⁽¹⁹⁾ There are limitations on the use of the information, for example, tenants must be given an opportunity to dispute the accuracy and relevance of the record before any adverse action is taken.⁽²⁰⁾

How the courts have address the issues of eviction of innocent tenants 

Types of conduct

Criminal activity and drug-related criminal activity⁽²¹⁾ are grounds for eviction from federally assisted housing. HUD implements these provisions by directing that they be included in tenants' leases. The statutory language varies slightly from program to program.

The public housing statute requires that leases must:

(6) 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 off 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 of the termination of tenancy;⁽²²⁾

during the term of the lease, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenant, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises, [or any violent]⁽²³⁾ or any drug-related criminal activity on or near such premises, engaged in by a tenant of any unit, 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. . . .⁽²⁴⁾

The legislative history discussing these statutes allows that Congress was concerned with crimes of a serious nature.⁽²⁵⁾ The HUD regulations implementing § 1437d(l)(6) call for termination of the lease due to "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the PHA's public housing premises by other residents," or "any drug-related criminal activity on or near such premises."⁽²⁶⁾ However, HUD's regulations also provide that the PHA's for public housing should consider the seriousness of the criminal activity when determining whether or not to terminate the lease.⁽²⁷⁾ The language of the Section 8 Voucher regulations is similar to the public housing; termination of the lease is allowed for "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents," or "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises or any drug-related criminal activity on or near the premises."⁽²⁸⁾

For federally assisted tenants the statute provides for good cause eviction.⁽²⁹⁾ The regulation calls for termination of the lease due to:

(iii) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents; any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises; any criminal activity that threatens the health, or safety of any on-site property management staff responsible for managing the premises; or any drug-related criminal activity on or near such premises, engaged in by a resident, any member of the resident's household, or any guest or other person under the resident's control. . . .⁽³⁰⁾

Thus for public and federally assisted housing, the criminal activity eviction policy covers drug-related activity, and activity that "threatens the health, safety, or right to peaceful enjoyment of the premises." The statue for the voucher program adds the category of "violent activity." For public housing the statute provides that the drug-related activity may be "on or off the premises."⁽³³⁾ Whereas the drug-related activity for all other programs must be "on or near" to violate the statue or regulations. In regards to project-based Section 8 housing and other subsidized housing, HUD's regulations also covers criminal activity that threatens "the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises" and criminal activity that threatens "the health, or safety of any on-site property management staff responsible for managing the premises." 

Activity must be serious

Courts when considering an eviction for criminal or drug-related activity have declined to uphold a proposed eviction action when the activity is not serious or threatening to others⁽³⁴⁾ or where the challenged activity was a one time event.⁽³⁵⁾

Covered Persons

As noted above, both the statutes and HUD's regulations call for revocation of a tenant's lease if violent or drug-related criminal activity is engaged in by the tenant, a member of the tenant's household, a guest or "person under the tenant's control." The statutory language requires that for a tenant to be liable for the acts of guest that the guest must be under the tenant's control. Proposed changes to the regulations hold the tenant liable for the actions of a "covered person" defined as: "a resident, any member of the resident's household, a guest or another person under the resident's control." The term household is then defined to include live-in aides.⁽³⁶⁾

The statutes and HUD's regulations use the language "guest or other person" under the tenant's (or 'resident' for HUD's Section 8 regulations) control⁽³⁷⁾. However, HUD's regulations for public housing hold liable a "tenant, any member of the household, a guest, or another person under the tenant's control."⁽³⁸⁾ The use of the coma after the term "guests" is not consistent with the statue and therefore should not be interpreted to mean the a tenant can be liable for a guest over which she has not control. 

Most significantly, the legislative history of the criminal activity eviction statutes indicates that tenant's should not be evicted for conduct they did not know about or took reasonable steps to prevent.⁽³⁹⁾ In pertinent part the legislative history of the public housing statute provides as follows:

The committee anticipates that each case will be judged on its individual merits and will require the wise exercise of humane judgment by the PHA 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 the activity.⁽⁴⁰⁾

[T]he Committee assumes that if the tenant had no knowledge of the criminal activity or took reasonable steps to prevent it, then good cause to evict the innocent family members would not exit. [sic] ⁽⁴¹⁾

Most significantly courts have protected the rights of innocent tenants.⁽⁴⁵⁾ Many courts have specifically addressed the question of tenant responsibility and determined that without knowledge of the activity the tenant should not be evicted.⁽⁴⁶⁾

In determining how a court will rule, an important factor to consider is the relationship of the criminal offender to the tenant. Often courts will infer that the tenant should have known or had reason to know of the criminal activity if the crime was committed by a child of the tenant and/or someone who lived in the residence.⁽⁴⁷⁾ However, there is some case law which holds that existence of a parent-child relationship is not enough to infer knowledge or forseeability on the part of the tenant, and consequently the evictions should be overturned.⁽⁴⁸⁾ Similarly, some courts have not allowed tenant's to be evicted for the actions of their emancipated children⁽⁴⁹⁾ even if they are named on the lease.⁽⁵⁰⁾

Nonetheless, a tenant's case against eviction may be stronger if their relationship to the person accused of committing the offense is distant.⁽⁵¹⁾ Additionally, courts will also look to whether or not the offender was living with the tenant when the criminal activity took place and/or was subsequently asked by the tenant to vacate the residence due to the criminal incident.⁽⁵²⁾

Despite these favorable cases, other courts have allowed housing authorities to evict tenants even though the tenant had no knowledge of the criminal conduct.⁽⁵³⁾

Location

The public housing criminal activity statute deals with drug-related criminal activity occurring "on or off" of the premises⁽⁵⁴⁾. However, HUD's regulations implementing that provision in regards to public housing retains the language on or near.⁽⁵⁵⁾

The statute and regulations governing both project based and tenant based Section 8 housing also uses the language "on or near."⁽⁵⁶⁾

Courts are more likely to disallow an eviction of a tenant when the criminal activity complained of took place far from the premises. In fact, one court held invalid a PHA lease provision that would have allowed eviction for criminal activity that occurred anywhere even if in a different city.⁽⁵⁷⁾ Other courts have refused to evict tenants when the criminal activity was too far away to be related to the housing where the tenant lived.⁽⁵⁸⁾

Length of Time between Criminal Activity and Eviction Action

Questions have arisen as to how far back a PHA or owner may look for criminal activity to may justify an eviction or how quickly a PHA or owner must act once they become aware of the alleged criminal activity. HUD regulations on the termination of the tenant-based subsidy (not an eviction action) state that if a PHA seeks to terminate assistance because of illegal use or possession for personal use, "such use or possession must have occurred within one year before the date that the [PHA] provides notice to the family of the . . . determination to . . . terminate assistance."⁽⁵⁹⁾ This language may be helpful if a PHA attempts to evict based upon criminal activity that took place in the distant past. In addition, there are some court decisions that are helpful on the question of how quickly the PHA must act to seek eviction for the criminal activity.⁽⁶⁰⁾

Conviction of Criminal Activity

HUD takes the position that a landlord does not have to wait until the criminal prosecution is completed in order to evict a tenant, nor does a landlord have to dismiss an eviction when there has been an acquittal or the criminal charges have been dropped.⁽⁶¹⁾ HUD also takes the position that the landlord must prove the existence of criminal activity by a civil standard of proof.⁽⁶²⁾ Thus, in HUD's view, a "covered person" could be found not guilty of committing a crime, however, the PHA could evict the tenant. Some courts have agreed with HUD's interpretation, holding that if a case involves an arrest without a conviction, the landlord may evict as long as it has been proven by a preponderance of the evidence that the alleged criminal activity occurred.⁽⁶³⁾ Nevertheless, if the only evidence is an arrest, that should not be sufficient to meet the preponderance of evidence test. Housing authorities and landlords should have to present more facts.

PHA Required to Exercise Discretion Before Deciding Whether to Pursue Eviction 

The legislative history of the criminal activity eviction statutes for both public housing and the Section 8 tenant-based program is clear. The public housing authority must "exercise. . . wise and humane judgment, weighing the interest of all concerned."⁽⁶⁴⁾ The public housing regulations require PHAs to exercise discretion⁽⁶⁵⁾ and one court confirmed that the PHA must consider mitigating factors in drug eviction cases.⁽⁶⁶⁾

Where to Look for More Information

The proposed HUD regulation on "One Strike Eviction" have not be finalized. It is anticipated that they will be final soon. You should check the NHLP discussion board for updates on the regulation. 

The section 8 regulations are available and updated regularly at: 

http://www.server2.wnylc.com/gulpmaterials/hud/Consolidated20Part982.htm

For any specific questions or recent litigation on this matter, review the HOUSING LAW BULLETIN and the NHLP Manual, HUD HOUSING PROGRAMS: TENANTS' RIGHTS. For LALSHAC members, check the NHLP discussion board.

Cases:

ABC Management v. Gamble, No. 83AP-788 (Ohio Ct. App. Dec. 15, 1983) (reversing eviction based on property damage caused by non-resident father of tenant's child, an uninvited visitor).

Abney v. Popolizio, 582 N.Y.S.2d 507 (1992) (absent substantial evidence that tenant's adult son continued to reside with tenant, tenancy could not be terminated solely on the basis of tenant's status as mother of offender charged with possession with intent to sell).

Adams v. Franco, 638 N.Y.S.2d 1013, 1017-1018 (Sup. Ct. 1996) (ruling that a PHA's refusal to grant a remaining family member a lease after his mother committed a crime was "so shocking to basic notions of fairness as to constitute and abuse of discretion").

Akron Metropolitan Housing Authority v. Rice, No. 88CV 04013 (Ohio Mun. Ct., Akron, filed June 22, 1988) (court held that it could enter judgment against one household member but not the rest of the family which was innocent) (Clearinghouse No. 44,581).

Allegheny County Housing Authority v. Nibbler, 748 A.2d 786 and 746 A.2d 106 (Pa. Commw. 200 Jan. 13, 2000) (PHA's need to consider mitigating factors in public housing drug evictions).

Allegheny County Housing Authority v. Liddell, No. 3101 CD 1997, 722 A.2d 750 (1998).

American Apartment Management Co. v. Phillips, 653 N.E.2d 834 (Ill. App. Ct. 1995) (Clearinghouse No. 50,799) (interpreting a lease clause making a tenant responsible for the acts of guests or household members requiring knowledge of the drug activity of her guest).

Associated Estates Corp. v. Bartell, 24 Ohio App.3d 6 (1985) (reversing judgment of eviction from Section 8 project due to, inter alia, property damage and disturbance caused by uninvited visitors).

Atlanta Housing Authority v. Madison, No. 92ED0114696 (Ga. Magistrate Ct., Fulton Cnty. Aug. 10, 1992) (mother not responsible for acts of daughter performed off the site and for which she had no prior knowledge).

Baldwin v. New York City Housing Authority, 65 A.D.2d 546, 408 N.Y.S.2d 948 (1978) (Public housing tenant could not be evicted for offenses of non-resident sons and boyfriend, but could be required to ban her adult sons from returning).

Boston Housing Authority v. Bell, 428 Mass. 108, 697 N.E.2d 130 (1998) (MA SC held Spence v. Gormley test still applied (at least in state-assisted housing) and the presumption of responsibility for guests conduct can be rebutted by evidence that the tenant didn't know or have reason to foresee the misconduct in advance or that once tenant knew he did everything possible to curb the misconduct)

Boston Housing Authority v. Byrant, 44 Mass. App. Ct. 776, 693 N.E.2d 1060 (1998). (tenant involved in credit card fraud, court said that activity was not a threat to health and safety so does not allow housing authority to bypass a grievance hearing)

Boston Housing Authority v. Guirola, 410 Mass. 820, 575 N.E.2d 1100 (1991) (Public Housing tenant can be evicted for the unlawful conduct of a regular occupant, even if not listed on the lease).

Brown v. Popolizio, 569 N.Y.S.2d 615 (App. Div. 1991) (PHA has burden to prove that emancipated offending son occupied the unit)

Buffalo Municipal Housing Authority v. Jones, No. 6080 (N.Y. City Ct., Buffalo, Dec. 1993), 27 CLEARINGHOUSE REV. 1484 (No. 49,657, Apr. 1994) (lease provision giving tenant engaged in criminal or drug activity less than 30 days' notice to vacate is invalid because both federal and state law require a 30-day notice)

Cabrera v. New York City Housing Authority, 590 N.Y.S.2d 90, 91 (App. Div. 1992) (when a tenant's children were no longer living with her, she could not be evicted despite their drug offenses in the public housing complex).

Charlotte Housing Authority v. Fleming, 473 S.E.2d 373, 375-76 (NC Ct. App. 1996) (holding that since the tenant was not aware of her non-resident son's presence in front of her apartment, he was not a guest, and the tenant was therefore not responsible for the son's alleged criminal activity and could not be evicted).

Charlotte Housing Authority v. Patterson, 120 N.C. App. 552, 464 S.E.2d 68 (1995) (tenant could not be evicted for serious gun offense committed by son because tenant had no knowledge and could not control).

Chavez v. Housing Authority of El Paso, 973 F.2d 1245 (5th Cir. 1992) (housing authority policy of evicting tenants for criminal activities of their guests and relatives is constitutional).

Chicago Housing Authority v. Rose, 560 N.E.2d 1131 (Ill. App. Ct. 1990) (Clearinghouse No. 46,606) (no good cause to evict for presence of guest's gun in unit without tenant's knowledge or showing of reason to know- however, presence in the apartment of the guns of tenant's brother created a rebuttable presumption that the tenant knew of the guns). 

Cincinnati Metropolitan Housing Authority v. Harris, No. C-820540 (Ohio Ct. App., 1st Dist., June 15, 1983) (granting relief from forfeiture and denying possession where eviction based on proven breach of lease consisting of criminal conduct of minor household members on project premises).

City of South San Francisco Housing Authority v. Guillory, 49 Cal. Rptr.2d 367, 41 Cal. App. 4^th Supp. 13 (Cal. Super. Ct., App. Dept., 1995) (drugs were found in the jacket of tenant's son who lived with the tenant in the tenant's apartment, the son was on the lease as a "household member" after the arrest moved out of the apartment, eviction upheld).

Clark v. Alexander, 85 F.3d 146, 1996 US App. LEXIS 13145, (4^th Cir. 1996) (Court upheld the housing authority's decision to terminate Section 8 benefits to tenant when drugs and drug paraphernalia belonging to her estranged husband were found in her apartment. The court held that "deference must be shown to the fact finding of local authorities." p. 151).

Corchado v. Popolizio, 567 N.Y.S.2d 460, 461-462, (App. Div. 1991) (holding that "forfeiture of a significant property interest involves substantial due process concerns" and noting that it would be "shocking to one's sense of fairness to exclude non-offending tenants from public housing when an offending family member has been excluded from the household at the time of the hearing).

Coughing v. Popolizio, No. 14770186 (N.Y. Super. Ct., Queens Cnty. Oct. 31, 1986) (tenant granted preliminary injunction to order PHA to reconsider decision to evict based on criminal activity of children who now no longer reside in unit). 

Delaware County Housing Authority v. Bishop, No. 1007 C.D. 2000, Pa. Commw. LEXIS 89 (Feb. 28, 2000) (PHA abused its discretion where it sought to evict a long-time tenant for the acts of her two adult sons, one of whom committed violent crimes because she had no knowledge or control over the offenses).

DePopolo v. Brookline Rent Control Board, No. 9209 CV 0204, 1993 WL 340693, (Mass. Dist. Ct. Sept. 2, 1993) (holding that when there was a history of dangerous behavior by a tenant's son, the tenant did not overcome the inference that she could not have foreseen or prevented the problem.).

Dickerson v. Popolizio, No. 41104 (N.Y. App. Div. Dec. 18, 1990) (Clearinghouse No. 47,123) (eviction of long-term Public Housing tenants because of mentally and physically handicapped son's conviction of sexual abuse of neighbor was disproportionate to the offense).

Diversified Realty Group v. Davis, 257 Ill. App.3d 417, 628 N.E.2d 1081 (Ill. App. Ct. 1993) (Clearinghouse No. 49,601) (Section 8 tenant cannot be evicted without personal knowledge of son's drug-related illegal activity).

East Hartford Housing Authority v. Birdsong, No. SPH 93695 (Conn. Super. Ct., Housing Sess., Hartford, Memorandum of Decision filed Jan. 8, 1998) (HUD's "One Strike Policy" does not preempt state law notice requirements).

Edwards v. Christian, 61 A.D.2d 1045, 403 N.Y.S.2d 119 (1978), aff'd, 46 N.Y.2d 964, 415 N.Y.S.2d 828 (1979) (refusing eviction of mother for criminal conduct of son on project premises because of exclusion from household, despite occasional visits).

Gallatin v. Gifford, No. 89-25-II, 1989 W.L. 100268 (Tenn. Ct. App. Aug. 30, 1989) (tenant could not be evicted for lease violation because father of child was frequent visitor but no evidence of his tenancy) (father's visits came to the attention of PHA when he was picked up for drugs and gave child's address).

Greenhill Assocs. v. Bonefont, No. 85-SP-0088 (Mass. Trial Court, Hous. Dept., Worcester Cnty., Jan. 10, 1986) (Clearinghouse No. 41,640), aff'd on appeal sub nom. Hodess v. Bonefont, 401 Mass. 693 (1988) (vacating 23 Mass. App. 577 (1987)) (Mass. Sup. Jud. Ct. affirms trial court judgment denying eviction on ground that, where tenant's son committed burglary of neighbor's apartment, owner did not prove breach of lease by tenant because no showing of acquiescence or foreseeability).

Guardarrama v. United States HUD, 74 F. Supp. 2d 127, (US Dist. Ct. for PR- 1999) (dismissed for lack of standing)

Heartland Realty Management, Inc. v. Case, CV-90-04160 (3rd Dist. Ct., Canyon Cnty. ID, Dec. 28, 1990) (Clearinghouse No. 46,512) (no good cause for arrest for statutory rape because alleged events took place off premises; no good cause for parties and domestic violence because other tenants had similar parties and only proof of disturbance of other tenants due to domestic violence was that police were called; no good cause for unauthorized guest because tenant not given a 3-day notice with opportunity to cure as required by state law and notice did not inform tenant of her options).

Hempstead v. Housing Authority v. Wells, 155 Misc.2d 873, 590 N.Y.S.2d 1014 (1^st Dist. 1992) (a tenant in a public housing program is not entitled to a Federal administrative hearing prior to the termination of the tenancy pursuant to 42 U.S.C. § 1437d [l] on the grounds of the tenant's drug-related criminal activity since summary proceedings in local courts applying Federal law afford all the due process guarantees to which a tenant is entitled).

Henry v. Wild Pines Apartments, 359 S.E.2d 237 (Ga. Ct. App. 1987) (eviction of tenant based upon action (firing of gun) of uninvited and unknown person reversed).

Heritage Hills, Ltd. v. Nusser, No. 1183, ___ Ohio App.3d ___ (Ohio Ct. App., 4th Dist., July 3, 1986) (Clearinghouse No. 41,415) (upholding trial court's use of equitable relief from forfeiture due to long-term nature of subsidized tenancy to avoid eviction of Section 8 tenant who made late tender of rent payment where original breach was not malicious).

Hodess v. Bonefont, 519 N.E. 2d 258, 260 (Mass. 1988) (holding that mere evidence of the relationship between a tenant and her sons was not enough to warrant a finding that the tenant could reasonably have foreseen and prevented a theft in another apartment by her two sons).

Housing Authority for City of Truman v. Lively, 1999 Ark. App. LEXIS 831 (Dec. 8, 1999) (agency not allowed to evict tenant when the criminal behavior was committed by a non-resident without tenant's knowledge.)

Housing Authority v. Thomas, 723 A.2d 119 (N.J. Super. Ct. App. Div. 1999) (Public Housing tenant may not be evicted for drug offense committed by person surreptitiously on the premises).

Housing Authority v. Raindrop, 670 A.2d 1087, 1092 (N.J. Super. Ct. App. Div. 1996) (stating that since the lease termination notice was deficient under federal regulations, the court could not reach the issue of whether the tenant could be held strictly liable for the drug activity of her son.).

Housing Authority and Urban Redevelopment Agency of City of Atlantic City v. Spratley, 743 A.2d 309 (N.J. App. Div. 1999) (tenants must sign lease containing third-party accountability provisions mandated by federal law, but court declines to decide whether federal statute requires "no fault" evictions for criminal acts of third parties).

Housing Auth. of Augusta v. Jones, No. S94CO772 (Ga. Sup. Ct. Apr. 1, 1994), 28 CLEARINGHOUSE REV. 186 (No. 49,811, June 1994) (PHA may not evict tenant because she neither consented to nor could foresee her son's illegal activity).

Housing Authority of Decatur v. Brown, 180 Ga. App. 483, 349 S.E.2d 501 (1986) (tenant was arrested for possession of a small amount of marijuana, allowed to stay in the apartment, later other people who were not given permission by Brown to be in the apartment were arrested for drug offenses- eviction was not allowed).

Housing Authority of Decatur v. Hawk, No. 90D 008839 (Ga. St. Ct., Dekalb Cnty., Apr. 17, 1990), 24 CLEARINGHOUSE REV. 260 (No. 46,654, July 1990) (mother unaware of adult daughter's involvement with drugs).

Housing Authority of Harlan v. Simpson, No. 87-X-002 (Ky. Cir. Ct., 26th Jud. Dist., Harlan, decision filed June 8, 1988) (Clearinghouse No. 44,162) (Public housing tenant could not be evicted for nonpayment of rent when the nonpayment was caused by husband's desertion and delay in receipt of AFDC).

Housing Authority of Los Angeles v. Vargas, No. 89U34272 (Cal. Mun. Ct., Los Angeles Cnty., June 15, 1990), 24 CLEARINGHOUSE REV. 729 (No. 45,968, Nov. 1990) (drug-related arrest of tenant's relative at tenant's apartment) . 

Housing Authority of New Orleans v. Green, 657 So.2d 552 (La. Ct. App. 1995), cert. denied, 661 So. 2d 1355, cert. denied, 517 US 1169, 116 S.Ct. 1571 (1996), 134 L.Ed. 2d 670. (Clearinghouse No. 50,216) (illegal drugs found in tenant's apartment belonged to an acquaintance of the tenant's daughter (not a member of the tenant's household) eviction upheld).

Housing Authority of Norwalk v. Elmore, 626 A.2d 1339 (Conn. App. Ct. 1993) (per curiam), 27 CLEARINGHOUSE REV. 49 (No. 48,830, May 1993) (tenant with disabilities whose brother was evicted for selling drugs can retain apartment because PHA failed to prove cause of action against him).

Housing Authority of Norwalk v. Boykins, No. SPNO 9009-10292 (Conn. Super. Ct., Stamford, June 1992), 1992 WL 17118, 27 CLEARINGHOUSE REV. 49 (No. 48,827, May 1993) (PHA failed to prove that tenant consented to presence of daughter who sold drugs on the premises, even where tenant had sponsored her daughter under the Supervised Home Release program and had failed to submit "move-out form").

Housing Authority of Oakland v. Lyons, No. 409773 (Oakland, Cal., Mun. Ct. Mar. 13, 1984) (PHA cannot hold tenant responsible for threats to health and safety posed by non-residents unless conduct is reasonably foreseeable).

Housing Authority of Oakland v. Walker, No. 1461 (Cal. Super. Ct., App. Dept., Nov. 19, 1986) (eviction of tenant due to son's brandishment of gun reversed because single incident and no prior notice of misconduct).

Housing Opportunities Commission v. Lacey, 322 Md. 56, 585 A.2d 219 (1991) (mother did not know of son's activity).

In Re Wilmington Housing Authority Evictions for Drug Related Offenses, (Clearinghouse No. 44,876) (Memorandum of Court for Guidance on the Law for Trial Judges).

Investors Diversified Property Management, Inc. v. Brown, No. 87-360-II, 1988 WL 102781 (Tenn. Ct. App. Oct. 7, 1988) (single, unforeseeable assault by child on playmate not good cause).

Irizarry v. Springfield Housing Authority, No. 92-CV-0088 (Mass. Hous. Ct. Apr. 29, 1992), 26 CLEARINGHOUSE REV. 442 (No. 48,136, Aug. 1992) (federal notice regulations preempt state nuisance statute used to evict tenant for drug-related activity).

Jimenez v. Popolizio, 180 A.D.2d 590, 580 N.Y.S.2d 302, (1^st Dept. App. Div. 1992) (eviction upheld when tenants' son had been dealing drugs on project premises, he was ordered excluded but there was evidence that he still lived in the apartment distinguished from Lines because in Lines no exclusion order).

Jones v. Christian, 120 A.D. 2d 367, 501 N.Y.S. 2d 854, (1^st Dept. App. Div. 1985) (tenant's foster son who resided with tenants stole food, he moved out by the time of the hearing, court said because he was emancipated the eviction was not allowed).

Kings County District Attorney's Office v. Freshley, 160 Misc.2d 302 (1993) (housing authority did not prove that the tenant had knowledge and/or acquiesced to illegal use of the premises for drug sales).

Knox v. Christian, 96 A.D. 490, 465 N.Y.S.2d 203 (1983), 17 CLEARINGHOUSE REV. 776 (No. 35,022, Nov. 1983). (after the sons of tenants who engaged in illegal conduct left, housing authority could not terminate the lease).

Lines v. New York City Housing Authority, 67 A.D.2d 1000, 413 N.Y.S.2d 733 (1979) (Public housing tenant could not be evicted for nondesirable conduct of son and son-in-law who may have previously resided with her but who did not at the time of the acts and of the hearing).

Lopez v. Henry Phipps Plaza South, 498 F.2d 937 (2d Cir. 1974) (eviction upheld because wrongdoer was former household member and no way to assure he would not return).

Maxton Housing Authority v. McLean, 313 N.C. 277, 328 S.E.2d 290 (1985) (reversing eviction judgment based on nonpayment of rent where fault lay with former husband, who had left).

Means v. Franco, 248 A.D. 2d 262, 670 N.Y.S.2d 435, (1^st Dept. App. Div, 1998) (tenant's 29 year old son sold drugs in the lobby of the building, he subsequently moved- no eviction).

Memphis Housing Authority v. Henry, No. 17, 1989 WL 48520 (Tenn. Ct. App. May 10, 1989) (upholding eviction of public housing tenant for second criminal act of minor son on project premises because of prior notice of detrimental conduct).

Memphis Housing Authority v. Thompson, 1999 WL 55162 (Ct. App. Tenn. 1999) (strict liability- father of tenant's child was watching her children while she did laundry, she had no knowledge of the illegal activity, the eviction was upheld)

Metropolitan Dade County. v. McRae, No. 93-1965 CC 20 (Fla. Cnty. Ct., Dade Cnty., filed Sept. 30, 1993), 27 CLEARINGHOUSE REV. 920 (No. 49,337, Dec. 1993) (public housing tenant claims possession of weapon was necessary to defend against assailants because PHA failed to provide safe housing).

Metropolitan Dade County. v. Scott, No. 93-10026 CC 05 (Fla. Cnty. Ct., Dade Cnty., Aug. 20, 1993), 27 CLEARINGHOUSE REV. 806 (No. 49,214, Nov. 1993) (PHA voluntarily dismisses eviction based on the arrest of a relative of tenant's family for drug violation).

Mid-Northern Management v. Heinzeroth, 234 Ill. App.3d 240, 599 N.E.2d 568 (Ill. 1992) (Clearinghouse No. 48,647) (Section 8 tenant cannot be held accountable for son's behavior occurring outside her presence- also tenant did not have knowledge and had punished her son for this behavior previously).

Minneapolis Public Housing Authority v. Holloway, 1995 Minn. App. LEXIS 1028 (Minn. Ct. App. 1995) (agency sought to evict tenant based on the following alleged incidents: a bicycle being thrown through a door, windows and walls being broken, two drive-by shootings, threats with a realistic toy gun by Holloway's son, fire-bombing of the house, and loud stereo music- eviction upheld.).

Minneapolis Pub. Housing Authority v. Jivens, No. UD-1920720559 (Minn. Dist. Ct., Hennepin Cnty., Sept. 9, 1992), 26 CLEARINGHOUSE REV. 1373 (No. 48,561, Feb. 1993) (PHA cannot evict tenant merely because her boyfriend and his friends are involved in a drug raid in her apartment when tenant did not know they were in her apartment).

Minneapolis Public Housing Authority v. Lor, 591 N.W. 2d 700 (Minn. 1999) (when tenant was out of the state one of her sons who resided with her was involved in a fatal drive-by shooting, later firearms were found inside the tenant's apartment, tenant had no knowledge, held that the role of the court was only to look at the facts and determine whether the terms of lease were breached- eviction upheld).

Moundsville Housing Authority v. Porter, 370 S.E.2d 341, 179 W. Va. 506, (W.Va. 1988) (beating of tenant by boyfriend was not good cause to evict even though tenant did not take steps to exclude him from household prior to the incident- after the incident she excluded him from the household).

Oklahoma City Housing Authority v. Sumrall, No. 82115 (Okla. Sup. Ct. filed Feb. 21, 1994), 27 CLEARINGHOUSE REV. 1483 (No. 49,682, Apr. 1994) (tenant challenges eviction based on criminal acts committed without her knowledge by former husband).

Owners Management Co. v. Moore, No. L-95-259 (Ohio Ct. App. June 21, 1996) (Section 8 tenant who was unaware of her son's illegal activity on the premises may not be evicted)

Peabody Properties v. Donnelly, No. 18066 (Mass. Super. Ct. April 26, 1985), aff'd, 22 Mass. App. 1101 (1986) (refusing eviction of Section 8 tenant based on fight between ex-husband and boyfriend, subsequent property damage by ex-boyfriend and assault by ex-boyfriend on premises because neither was household member and tenant took steps to prevent presence of ex-boyfriend).

Perry v. Popolizio, No. 35765, N.Y.L.J. 11, col. 6 (N.Y. City Sup. Ct., Dec. 16, 1987) (held that eviction of a housing authority tenant was not warranted where tenant's daughter had been involved in misconduct on one single day).

Powell v. Franco, 684 N.Y.S.2d 226, 257 A.D.2d 509 (1999) (isolated incident so disproportionate punishment- "the penalty of petitioners conditional exclusion from public housing [is] shocking to our sense of fairness").

Rockford Housing Authority v. Davidson, No. 92 LM2666 (Ill. Cir. Ct., Winnebago Cnty., Feb. 8, 1994), 28 CLEARINGHOUSE REV. 188 (No. 49,788, June 1994) (tenant not responsible for acts of grandmother on premises, in part, because tenant had been unaware of and uninvolved in the offending conduct).

Rucker v. Davis, 203 F.3d 627; 2000 US App. LEXIS 1966; (9^th Cir. 2000) (the plain language of § 1437d(l)(5) made any drug-related criminal activity engaged in by a tenant, household member, or guest cause for termination regardless of whether the tenant knew of such activity)

Sanders v. Franco, 702 N.Y.S.2d 58, 2000 NY App. Div. LEXIS 982, (App. Div. 1^st Dept.- 2000) (tenant and housing authority had a prior stipulation that her emancipated son would be absent, housing authority tried to evict her on the grounds that she violated the agreement, court ruled that the punishment was "unduly harsh and shockingly disproportionate")

Spence v. Gormley, 378 Mass. 258, 439 N.E.2d 741 (1982) (upholding eviction of family based on racially motivated fire bombings perpetrated by household member son; extensive dicta re no "cause" if tenant shows inability to foresee and prevent the offensive act). 

Spence v. O'Brien, 446 N.E.2d 1070 (Mass. 1983) (holding that when a tenant knew of a guest's drug activities but did little to prevent those activities, the Boston Housing Authority had sufficient basis to evict her).

Spence v. Reeder, 382 Mass. 398, 416 N.E.2d 914 (1981) (family could be culpable if offender was household member, and perhaps would not be if not).

Stroman v. Franco, 676 N.Y.S.2d 591, 253 A.D.2d 398 (App. Div. 1^st Dept. 1998) (absent substantial evidence of occupancy, the nondesireable acts of an emancipated adult may not be imputed to tenant-petitioner based only on their relationship; thus, termination of petitioner's tenancy on the basis of her son's visits was unreasonable).

Syracuse Housing Authority v. Boule, 177 Misc.2d 400, 676 NYS 2d 741 (Mar. 30, 1998) (eviction of tenant allowed even though she was not aware of the drug related activity her emergency babysitter engaged in).

Tyson v. New York City Housing Authority, 369 F. Supp. 513 (S.D.N.Y. 1984) (no eviction based on acts of non-resident adult children who were no longer members of the household).

United States v. Robinson, 721 F. Supp. 1541 (D.R.I. 1989) (forfeiture of Section 8 lease would amount to excessive punishment for drug sale)

United States v. Leasehold Interest in 121 Nostrand Ave., 760 F. Supp. 1015 (E.D.N.Y. 1991) (grandmother did not know of activities and took steps to prevent drug related activity in her household- no eviction).

Williams v. Hawaii Housing Authority, 690 P.2d 285, 5 Haw. App. 325 (Haw. Ct. App. 1984) (tenants awareness of violent acts of her children was necessary for eviction, but such awareness or an ability to prevent should be inferred when there is a history of violent acts)

Wilmington Housing Authority v. Bacon, No. JP13 89 C0882 (Del. Just. Peace May 22, 1989) (tenant prevailed in eviction action because she had no knowledge of son's conduct until arrest),

Wilmington Housing Authority v. Goodman, No. JP13 89 C0883 (Del. Just. Peace May 22, 1989) (tenant tried unsuccessfully to control minor son who sold drugs and was not legally permitted to be removed from household, therefore no eviction),

Wilmington Housing Authority v. Hollis, No. JP13 89 C0886 (Del. Just. Peace May 22, 1989) (tenant had actual or constructive knowledge of drug activity of son, therefore evicted),

Wilmington Housing Authority v. Sudler, No. JP13 89 C0880 (Del. Just. Peace May 22, 1989) (tenant attempted to remove family member (son) after knowledge of drug sales).

Yesler Terrace Community Council v. Cisneros, 37 F. 3d 442, 1994 LEXIS 24496; (9^th Cir. 1994) ("When HUD implemented 42 U.S.C. § 1437d(k), and decided that Washington's state eviction procedures satisfy the basic elements of due process, it promulgated a substantive rule. Because it did so without providing notice and an opportunity to comment, in violation of its own regulations, the rule thus promulgated is invalid." p. 449).

LAW REVIEWS:

1. Robert Hornstein, "Mean Things Happening in this Land: Defending Third Party Criminal Activity Public Housing Evictions," 23 S.U. L. REV. 257, 1996.

2. Jason Dzubow, "Fear-Free Public Housing? An Evaluation of HUD's 'One Strike and You're Out' Policy," 6 TEMPLE POL'Y. & CIV. RTS. L. REV. 55 (Fall 1996-Spring 1997).

3. Nelson Mock, "Punishing the Innocent: No-Fault Eviction of Public Housing Tenants for the Actions of Third Parties," 76 TEX. L. REV. 1495, 1998. 

4. Robin S. Golden, "Toward a Model of Community Representation for Legal Assistance Lawyering: Examining the Role of Legal Assistance Agencies in Drug-Related Evictions from Public Housing," 17 YALE L. & POL'Y REV. 527, 1998.

5. Shelby D. Green, "The Public Housing Tenancy: Variations on the Common Law that Give Security of Tenure and Control," 43 CATH. U.L. REV. 681, 1994.

6. Michael H. Schill, "Distressed Public Housing: Where Do We Go From Here?," 60 U. CHI. L. REV. 497, 1993. 

_____________________________________ 

1. The National Housing Law Project is grateful to Laura Burdick of the Columbia University School of Law for assisting us in the development of this packet.

2. 42 U.S.C. § 1437d(l)(6) as amended (2000).

3. 42 U.S.C. § 1437f(d)(1)(B)(iii) and 42 U.S.C. § 1437f(o)(7)(D) (2000).

4. 24 C.F.R. § 247.3(a)(3) (1999).

5. 42 U.S.C. § 13662 (2000).

6. HUD Notice, "One Strike and You're Out" Screening and Eviction Guidelines for Public Housing Authorities (HAs) (PIH 96-16 Apr. 12, 1996).

7. President William Jefferson Clinton, "State-of-the-Union Address" January 23, 1996.

8. 42 U.S.C. § 1437d(l)(5) (1988).

9. 42 U.S.C. § 1437d(l)(5) (1990).

10. 42 U.S.C. § 1437d(l)(5) (1996).

11. 42 U.S.C. §§ 1437d(k) and 1437d(l)(3) (2000)

12. 42 U.S.C. § 1437d(l)(7) and 13662 (2000); See also Pub. L. No. 105-276, 112 Stat. 2519, 2634-2643, Title V, Subtitle F, "Safety and Security in Public and Assisted Housing," §§ 575-579 (1998).

13. 42 U.S.C. § 1437d(l)(9) (2000).

14. 64 Fed. Reg. 40262 (July 23, 1999) proposed rule on "One-Strike Screening and Eviction for Drug Abuse and other Criminal Activity."

15. Rucker v. Davis, 203 F.3d 627, 2000 U.S. App. LEXIS 1966 (9^th Cir. 2000).

16. 42 U.S.C. § 1437d(k)(6)(2000); 24 C.F.R. § 966.51(a)(1999).

17. 42 U.S.C. § 13661 (2000).

18. Id. at § 1437(d)(q) (2000).

19. Id.; see also Congress' New Public Housing and Voucher Programs, 28 HOUS L. BULL., 165, 170 (Oct/Nov.1998).

20. Id.

21. The term "drug-related criminal activity" means the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sale, distribute, or use, of a controlled substance (as such term is defined in section 802 of Title 21). 42 U.S.C. § 1437a(b)(9) (2000). See also 55 Fed. Reg. 28,540 (July 11, 1990).

22. 42 U.S.C. § 1437d(l)(6)(2000).

23. 42 U.S.C. § 1437f(o)(7)(D) (2000) (the Voucher statute adds at this point the clause "or any violent").

24. 42 U.S.C. § 1437f(d)(1)(B)(iii) (2000) (Certificate); 42 U.S.C. § 1437f(o)(7)(D) (2000) (Voucher)

25. S.Rep. No. 316, 101^st Cong., 2^nd Sess. (June 8, 1990) at 127 and 179, reprinted in 1990 U.S.C.C.A.N. 5889 and 5941.

26. 24 C.F.R. § 966.4 (l)(2)(ii)(A) and (B) (1999).

27. 24 C.F.R. § 966.4 (l)(5)(I) (1999). See also 24 C.F.R. § 982.553 (1999) (PHA's may terminate Section 8 subsidies (not an eviction action) for criminal activity only if the activity is drug-related or violent.)

28. 24 C.F.R. § 982.310 (c)(1996).

29. 12 U.S.C. § 1715z-1b (2000).

30. 24 C.F.R. §§ 880.607(b)(iii) and 247.3(a)(3) (1999).

31. 42 U.S.C. § 13662 (2000).

32. 42 U.S.C. § 1437d(l)(7) (2000) (sic) note that there are two d(l)(7) clauses.

33. Regulations for public housing still retain the requirement that the activity be "on or near" project premises. 24 C.F.R. § 966.4(l) (2)(ii)(B) (1999).

34. Boston Hous. Auth. v. Bryant, 44 Mass. App. Ct. 776, 693 N.E.2d 1060 (1998) (court held that other criminal activity such as credit card fraud, is not a threat to health and safety so the Housing Authority was not allowed to bypass the regular grievance hearing); (Long Island) Newsday Edition: QUEENS , Thursday April 27, 2000, Robert Polner. A judge has severely faulted the city Housing Authority for trying to kick out a lifelong public-housing resident based on his convictions for turnstile jumping.

35. Perry v. Popolizio, No. 35765, N.Y.L.J. 11, col. 6 (N.Y. City Sup. Ct., Dec. 16, 1987) (held that eviction of a housing authority tenant was not warranted where tenant's daughter had been involved in misconduct on one single day); Powell v. Franco,, 684 N.Y.2d 226, 257 A.D.2d 509 (1999) (isolated incident so disproportionate punishment- "the penalty of petitioners conditional exclusion from public housing [is] shocking to our sense of fairness")

36. 64 Fed. Reg. 40,262 (July 23, 1999) (proposed rule).

37. 42 U.S.C. § 1437(d)(1)(6)(2000), 42 U.S.C. § 1437f(d)(1)(b)(1993), 24 C.F.R. § 880.607(b)(1997), 24 C.F.R. § 982.310 (1996).

38. 24 C.F.R. § 966.4(f)(12)(2000).

39. S. Rep. No. 316, 101^st Cong., 2^nd Sess. 127 and 179 (June 8, 1990).

40. S. Rep. No. 316, 101^st Cong., 2d Sess. 179 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5941.

41. Id. at 275, reprinted in 1990 U.S.C.C.A.N. at 5889.

42. 56 Fed. Reg. 51, 560, 51, 562-63 (Oct. 11, 1991). 

43. 24 C.F.R. § 966.4(l)(5)(1993).

44. Id.

45. See attached list of annotated cases in which the courts protected vast majority of innocent tenants from arbitrary eviction.

46. American Apartment Mgmt. Co. v. Phillips, 653 N.E.2d 834 (Ill. App. Ct. 1995), Charlotte Hous. Auth. v. Patterson, 120 N.C. App. 552, 464 S.E.2d 68 (1995), Diversified Realty Group v. Davis, 257 Ill. App. 3d 417, 628 N.E.2d 1081 (Ill. App. Ct. 1993), Housing Auth. of Norwalk v. Elmore, 626 A.2d 1339 (Conn. App. Ct. 1993), Greenhill v. Bonefont, No. 85-SP-0088 (Mass. Trial Ct., Hous. Dept., Worcester Cnty., Jan. 10, 1986), Kings Cnty Dist. Atty's Off. v. Freshley, 160 Misc.2d 302 (1993), Housing Auth. of Decatur v. Hawk, No. 90D 008839 (Ga. St. Ct., Dekalb Cnty., April 17, 1990), Housing Opportunities Comm'n v. Lacey, 322 Md. 56, 585 A.2d 219 (1991), Mid-Northern Mgmt. v. Heinzeroth, 234 Ill. App. 3d 240, 599 N.E. 2d 568 (Ill. 1992), Owners Mgmt. Co. v. Moore, No. L-95-295 (Ohio Ct. App. June 21, 1996). Compare Rucker v. Davis, 203 F.3d 627 (9^th Cir. 2000) (petition for rehearing pending) (innocent tenant unaware of wrong doing with no ability of control could be evicted for the drug-related actions of another member of household). See also attached list of cases with explanatory squibs.

47. Abney v. Popolizio, 582 N.Y.S.2d 507 (1992), Boston Hous. Auth. v. Guirola, 410 Mass. 820, 575 N.E. 2d 1100 (1991), DePopolo v. Brookline Rent Control Board, No. 9209 CV 0204, 1993 WL 340693, (Mass. Dist. Ct. Sept. 2, 1993), City of South San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr.2d 367, 41 Cal. App.4th Supp. 13 (Cal. Super. Ct., App. Dept. 1995); Jimenez v. Poplizio, 180 A.D.2d 590, 580 NYS 2d 302 (1^st Dept. App. Div. 1992), Minneapolis Pub. Hous. Auth. v. Lor,591 N.W.2d 700 (Minn. 1999); Memphis Hous. Auth. v. Henry, No. 17, 1989 WL 55162 (Ct. App. Tenn. 1999). See also attached list of cases with explanatory squibs.

48. Hodess v. Bonefont, 519 N.E.2d 258, (Mass. 1988), Housing Auth. of Augusta v. Jones, No. S94CO772 (Ga. Sup. Ct. April 1, 1994), 28 CLEARINGHOUSE REV. 186 (No. 49,811, June 1994), United States v. Leasehold Interest in 121 Nostrand Ave., 760 F. Supp. 1015 (E.D.N.Y. 1991).

49. Delaware Cnty Hous. Auth. v. Barbara Bishop, No. 1007 C.D. 2000, Pa. Commw. LEXIS 89, Dickerson v. Popolizio, No. 41104 (N.Y. App. Div. Dec. 18, 1990), Jones v. Christian, 120 A.D. 2d 367, 501 NYS 2d 854, (1^st Dept. App. Div. 1985), Stroman v. Franco, 676 NYS 2d 591, 253 A.D. 2d 398 (App. Div. 1^st Dept. 1998), Tyson v. New York City Hous. Auth., 369 F. Supp. 513 (S.D.N.Y. 1984).

50. Delaware Cnty Hous. Auth. v. Barbara Bishop, No. 1007 C.D. 2000, Pa. Commw. LEXIS 89.

51. ABC Mgmt. Co. v. Gamble, No. 83AP-788 (Ohio Ct. App. Dec. 15, 1983), Boston Hous. Auth. v. Bell, 428 Mass. 108, 697 N.E.2d 130 (1998), Chicago Hous. Auth. v. Rose, 560 N.E.2d 1131 (Ill. App. Ct. 1990), Gallatin v. Gifford, No. 89-25-II (Tenn. Ct. App. Aug. 30, 1989), Henry v. Wild Pines Apartments, 359 S.E.2d 237 (Ga. Ct. App. 1987), Housing Auth. v. Thomas, 723 A.2d 119 (N.J. Super. Ct. App. Div. 1999), Housing Auth. of Decatur v. Brown, 180 Ga. App. 483, 349 S.E.2d 501 (1986), Minneapolis Pub. Hous. Auth. v. Jivens, No. UD-1920720559 (Minn. Dist. Ct., Hennepin Cnty., Sept. 9, 1992). But see New Orleans Hous. Auth. v. Green, Memphis Hous. Auth. v. Thompson, and Syracuse Hous. Auth. v. Boule, 177 Misc. 2d 400, 676 NYS2d 741 (1998).

52. Baldwin v. New York City Hous. Auth., 65 A.D.2d 546, 408 NYS 2d 948 (1978), Cabrera v. New York City Hous. Auth., 590 NYS 2d 90, (App. Div. 1992), Charlotte Hous. Auth. v. Fleming, 473 S.E. 2d 373, (NC Ct. App. 1996), Coughing v. Popolizio, No. 14770186 (N.Y. Super. Ct., Queens Cnty., Oct. 31, 1986), Edwards v. Christian, 61 A.D. 2d 1045, 403 N.Y.S. 2d 119 (1978), Lines v. New York City Hous. Auth., 67 A.D.2d 1000, 413 N.Y.S. 2d 733 (1979), Knox v. Christian, 96 A.D.490, 465 N.Y.S. 2d 203 (1983), Means v. Franco, 248 A.D.2d 262, 670 N.Y.S.2d 435 (1^st Dept. App. Div. 1998). But see Lopez v. Henry Fops Plaza South, 498 F.2d 937 (2d Cir. 1974).

53. Rucker v. Davis, 203 F.4d 627 (9^th Cir. 2000) (see discussion supra. in section on History and Significant new developments); Memphis Hous. Auth. v. Thompson, 1999 WL 55162 (Ct. App. Tenn. 1999), City of South San Francisco Hous. Auth. v. Guillory, 41 Cal. App. 4^th Supp. 13 (1995), New Orleans Hous. Auth. v. Green, 657 So. 2^nd 552 (1995), Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W. 2d 700 (Minn. 1999).

54. 42 U.S.C. § 1437d(l)(6) (1999); see discussion, supra, regarding a change in the statutory language.

55. 24 C.F.R. §§ 966.4(l)(2)(ii)(B), 880.607(b)(iii), 982.310(c)(3) (1999).

56. 42 U.S.C. §1437f(d)(1)(B) (1993).

57. Richmond Tenants Org. Inc. v. Richmond Redev. and Hous. Auth., 751 F. Supp. 1204 (E.D. Va. 1990), aff'd, 947 F.2d. 942 (4^th Cir. 1991).

58. Heartland Realty Management Inc. v. Case,, No. CV-90-04160 (Id. Dist. Ct. Dec. 28, 1990) (Clearinghouse No. 46, 512) (statutory rape off the premises); Housing Auth. of Omaha v. Smith, No. 88-08029M (Neb. Cnty. Ct. Aug. 11, 1998)(Clearinghouse No. 49, 498)(drug arrest of son off project premises), See also, Atlanta Hous. Auth. v. Madison, No. 92ED0114696 (Ga. Magistrate Ct., Fulton Cnty., Aug. 10, 1992)(mother held not responsible for the acts of her daughter performed off the site and for which she had no prior knowledge).

59. 24 C.F.R. § 982.553 (1999).

60. Housing Auth. of Truman v. Lively, No. CA 99-543, 1999 WL 1203731 (Ark. App., Dec. 8, 1999) (in denying the eviction the court noted that the PHA did not serve the eviction notice until nearly five months after it became aware of the drug sale); see also Housing Auth. of DeKalb Cnty v. Myrtle, (insufficient threat to health and safety so as to justify avoiding the grievance procedure because PHA did not act in a timely fashion when there were repeated incidents of intoxication and irresponsible use of kitchen)

61. 56 Fed. Reg. 51,568 (Oct. 11, 1991); 55 Fed. Reg. 28,540 (July 11, 1990).

62. Id.

63. Housing Auth. of Los Angeles v. Vargas, No. 89U34272 (Cal. Mun. Ct., Los Angeles County, June 15, 1990), Burgess v. Popolizio, 565 NYS 2d 201 (App. Div. 1991).

64. S. Rep. No. 316, 101^st Cong., 2d Sess. 127 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5889, see also Id. at 179, 1990 U.S.C.C.A.N. at 5941.

65. 24 C.F.R. § 966.4(l)(5), compare 64 Fed. Reg. 40262 (July 23, 1999) (proposed regulations reversing and extending HUD's one-strike eviction policy which remove the section on PHA discretion.)

66. Allegheny Cnty Hous. Auth. v. Janice Nibbler, (Pa. Commonwealth, No. 3100 C.D. 1997, 1/13/00) (PHA's do need to consider mitigating factors in public housing drug evictions)
 

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