Daily Development for Friday, September 10, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
HOUSING; EVICTION; “ZERO TOLERANCE” POLICY; PRIOR CRIMINAL ACTIVITY: Where a
tenant in public housing allows a guest with a prior criminal history 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.
Wellston Housing Authority v. Murphy, 131 S.W.3d 378 (Mo.App. E.D. 2004). I
Defendant, a tenant in a public housing apartment building, allowed an
individual who had felony convictions and had been recently released from prison
to reside in her unit as a guest. The guest’s criminal history included
convictions for second degree murder, sexual assault, and burglary.
The housing authority became aware of the criminal history of the guest, and
when tenant applied for tenant status for the guest and it otherwise became
plain that this was more than an overnight visitor, the authority served tenant
with an eviction notice based on the tenant’s violation of the terms of her
lease. The lease included a provision consistent with 42 U.S.C. section
1437d(l)(6), which requires public housing leases to “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 for termination of tenancy”.
Defendant refused to vacate the premises and the housing authority filed an
unlawful detainer action against defendant. Finding for the defendant, the Court
held that the criminal activity that serves as the basis for the termination of
a pubic housing lease must not be remote in time to the lease itself, but must
occur when the lease is in effect, and thus the housing authority’s termination
of the lease was improper.
In a separate opinion, the Presiding Judge, while concurring in the result
reached by the majority, stated that it was not necessary for the Court to adopt
a bright-line test that limits “criminal activity” to conduct during the term of
the lease, and that the Court need not decide whether, on different facts, past
criminal conduct of a guest might be sufficient to justify termination of a
tenant’s lease in a case where there was evidence that the guest caused a
current threat to the health, safety, or right to peaceful enjoyment of the
premises by other tenants.
Comment: In HUD v. Rucker, 2002 WL 272444 (U.S.S.Ct. 4/01/02) U.S. Supreme Court
upheld the interpretation of federal housing statutes that authorizes, but does
not require, expulsion of any tenant if guests or children of that tenant
possess or traffic in drugs, regardless of personal knowledge or involvement of
the tenant. This policy applies even if the criminal conduct occurred off
premises.
Note that here the Authority, apparently within its rights, had forbade the
defendant’s guest from coming on the premises at all. There appears to be little
doubt that it had the power and lawful cause to prohibit a party with a history
of violent crimes to come into its housing project. The only question here is
whether it can exercise the right to evict as a punishment to another party, who
had no criminal record, for bringing the barred party onto the premise before
the bar went into effect. Looked at from that perspective, the court likely made
an appropriate interpretation of the lease, notwithstanding the strong policies
enunciated in Rucker.
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