Daily Development for Thursday, November 8, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDLORD/TENANT; RESIDENTIAL; PUBLIC HOUSING: Public housing authority may evict a public housing tenant because he has committed a violent crime approximately one mile from the leased apartment where the authority concludes that such tenant threatens the other residents health, safety, or right to peaceful enjoyment.
Lowell Housing Authority v. Melendez, 865 N.E. 2d 741 (Mass. 2007)
Provisions in the lease permitted the authority to evict anyone who engaged in criminal activity that constituted a threat to the other residents health, safety or right to peaceful enjoyment. Tenant used a seven inch kitchen knife in an attempt to rob someone in a convenience store about a mile from the housing complex.
A housing court judge concluded that the authority was entitled to possession on the basis of the lease provision. This appeal resulted:
Tenant argued that an event occurring a mile from the housing complex did not establish any danger to the residents of the complex. The court elected to take this claim seriously and give it a thorough discussion, although it described the authoritys case from the outset as persuasive. It concluded that such discussion might be helpful in guiding authorities in the future.
Although the court had no trouble agreeing that the tenants crime reasonable presented a risk to the other tenants. (Indeed, during a brief stay of eviction while the tenant appealed, he committed three other violent crimes). But it did comment that it was not holding that all criminal activity of whatever nature, is cause for termination of a public housing tenancy. It cited an example of a tenant convicted of credit card fraud, who obtained a reversal of his eviction.
In a telling analysis of the real purpose of this rule, the court commented:
Tenants of public housing developments represent some of the most need and vulnerable segments of our population, including low-income families, children, the elderly, and the handicapped. It should not be their fate, to the extent manifestly possible, to live in fear of their neighbors.
Comment 1: The editor finds it interesting that the provision apparently applies only to crimes committed after the tenant moves in. Dont tenants with criminal records present equal risks? Perhaps the authority asks for information on this score in the application, and lying on the application may justify eviction if a criminal record is detected later. What if the criminal occupies as a guest, and never filled out an application? See: Wellston Housing Authority v. Murphy, 131 S.W.3d 378 (Mo.App. E.D. 2004). (Where a tenant in public housing allows a guest with a prior criminal history (murder) to reside in her unit, the housing authority has no right to terminate tenant's lease if the guest does not engage in criminal activity during the lease term.)
Comment 2: Although the editor basically agrees with the zero tolerance issue, a real question is if people who engage in these crimes cant live in housing authorities, where can they live? At a recent NCCUSL meeting, a proposed uniform law was introduced that would prohibit housing authorities and many other employers and service providers from discriminating in opportunities (employment, housing, etc.) on the basis of criminal records. Your editor got on his hind legs on that one, and its back on the drawing board. But the problem still is there. You dont make it go away by ignoring it. But the editor hasnt a clue, nor a spare room, to contribute to the solution of this problem.
Comment 3: Speaking of zero tolerance, the editor should note that the criminal conduct exclusion permits termination of the lease not only when the tenant commits a crime, but when the tenant, any member of the [tenants] household, or any guest or other person under the [tenants] control commits a crime. So any broadening of the definition of what activity supports eviction significantly broadens the number of relatively innocent friends and relatives who have provided a support network to the offender who also get evicted. Hence, fewer and fewer persons in a potential support network are going to provide that support. Is that a good thing? There are no easy answers. One DIRT DD dealt with this, protecting the innocent tenant Memphis Housing v. Thompson, 38 S.W.3d 504 (Tenn. 2001), (the DIRT DD for 9/3/01) But the editor believes that the majority view is does not favor the innocent tenant. See, e.g. South San Francisco Housing Authority v. Guilory, 49 Cal. Rptr. 2d
367 (Cal. Super. 1995) (DD for 7/16/95) (In fact the editor believes that the U.S. Supreme Court recently has ruled this way on the issue, but the editor is too lazy to look it up.)
Comment 4: One assumes that a private landlord could certainly include these kinds of protections in the tenant rules and leases. What if it doesnt, and a tenant engages in off premises criminal behavior? Compare: Barber v Chang 151 CA4th 1456, 60 CR3d 760 (2007) )DD for 11/1/07) (on premises) (Landlord had duty to take minimally burdensome measures to protect visitor to apartment complex from known threat of violence by gun-brandishing tenant.) to Castaneda v. Olsher, 2007 Westlaw 2164063 (Cal. 7/30/07) (DD for 8/4/07) (decided later and arguably modifying Barber). (The simple act of leasing a mobile home space to persons who have known affiliations with juvenile gangs is not an act of negligence that will render a landlord liable for subsequent injuries caused by such persons on premises.)
What about simply warning other tenants of known criminal tendencies? See: Rhaney v. University of Maryland, Eastern Shores, --- A.2d ----, 2005 WL 1936348 (Md.) (DIRT DD for 8/17/05) (The relationship between a college and a dormitory resident is one of landlord tenant, and the tenant does not occupy the status of "business invitee," but in either case the college owes no duty to warn against or prevent an assault by a randomly assigned roommate, even when that roommate has been suspended from the campus for a year due to a prior violent incident.)
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