Daily Development for Monday, September 3, 2001


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; TENANT RULES; CRIMINAL CONDUCT: When a guest of a public housing tenant participates in criminal activity unknown to the tenant and not under the tenant's control, the lease of that tenant may not be terminated under a policy of strict liability for the criminal

Activity pursuant to federal regulations unless the terms of the lease clearly provide for such termination.


 Memphis Housing v. Thompson, 38 S.W.3d 504 (Tenn. 2001)


A tenant of housing owned and operated by the Memphis Housing Authority permitted her boyfriend, recently released from incarceration, to enter her apartment temporarily to watch her children (one of whom was his).  Police, executing a search warranted, entered the apartment when he was there and found drugs.  He claimed that the drugs were his,

and was thereupon arrested for possession of illegal drugs.


Soon thereafter, the housing authority issued a notice of termination of tenant's occupancy, citing applicable federal law and the terms of her lease.


The terms of appellant's lease generally (but not word for word) followed federal regulations prescribing that the criminal activity of a public housing tenant or of such tenant's guest or other person under the tenant's control would  be grounds for lease termination.


The lease provided that tenant was required:


          "[t]o refrain from and cause household members, guests, or

     person under the resident's control from engaging in any criminal

     activity or unlawful activity that threatens the health safety or

     right to a peaceful enjoyment of the [authority's] public housing

     premises by other residents or employees . . . which includes but

     is not limited to any drugrelated criminal activity on or off the



The court states that lease further provided that a cause for termination existed if:


          "The resident, any members of the household, a guest of [sic]

or other person under the resident's control" engaged in "any drug related criminal activity on or off the premises."


The Supreme Court noted that other jurisdictions are divided on this issue of whether federal law or the language of the leases that follow that law establish a "strict liability" for the public housing tenant for the actions of the tenant's guests.   Tenant argued that the language "under the resident's control" indicated that the tenant must have actual or

constructive knowledge of a guest's criminal conduct and then have a reasonable opportunity to control that guest in order to be liable for eviction as a consequence of that guest's criminal behavior.


Probably the majority of the decided cases find that there is strict liability.  They read the language as stating that the guest must be there due to the tenant's exercise of control  the "guest" cannot be a trespasser or burglar.  But, since the purpose of the provisions is to establish a "zero tolerance" for drug usage, all that need be shown is that the criminal

perpetrator is indeed on the premises with tenant's permission. Presumably if the tenant consorts with criminals, this will create an atmosphere in the housing project that will adversely affect others, and the quickest way to address this problem is to oust any tenant who has such friends, whether the tenant otherwise is culpable for the criminal

conduct in any way.  Jurisdictions in which courts have reached such a conclusion include New York, California, Minnesota, Michigan and Louisiana.


On the other hand, there is a group of cases permit eviction under the lease provisions described above only if the tenant knew or should have known of the drug related activity and failed to prevent or halt it. Cases in Delaware, Illinois, North Carolina and Pennsylvania have so found. Also, a recent Ninth Circuit case Rucker v. Davis, 2001 WL 557254 (1/24/01) on facts arising in California, has reached a similar result.


Both groups of authority appear to emphasize the purpose behind the federal legislation, citing Congressional Record materials, to buttress their interpretation of the contractual language adopted by the tenant and the authority.


The court here, however, recognized that it was dealing with specific contract language.  It read the contract provision to impose a "zero tolerance," "strict liability" policy upon tenant and members of tenant's household.  But the court stated that the best reading of the rest of the language of the provision is that the phrase "under resident's control"

applies both to guests and to "others."  It concluded that the phrase "under resident's control" was inherently ambiguous on the question of whether tenant was liable to be evicted only if it failed to exercise control to prevent criminal activity of guests.  It noted that ambiguous language, under Tennessee law, normally is construed against the drafter, here the housing authority.


The court further opined that applying a "strict liability" standard to

tenant for the behavior of tenant's guests and invitees would lead to

absurd results.  In indicated that the authority admitted at argument

that under it's interpretation the tenant would be liable for eviction if a

pizza delivery person entered the premises while in possession of drugs.


In the instant case, the Court concluded that housing authorities, under the instant language,  should only be permitted resort to lease termination when a tenant is at fault, i.e., with knowledge of the criminal activity or in control of the situation in which criminal conduct occurs.  It deferred any consideration as to whether a more rigid "strict liability" interpretation would have violated Constitutional rights.


It then remanded the case back to the lower courts for further factual review, and adopted a standard for public housing eviction in such instances only if a tenant "knew or should have known" of the criminal activity being carried out by guests or "others" under tenant's control and failed to take reasonable action to prevent it.  The court notes that

This standard may require the tenant to seek outside intervention from social

services or law enforcement in order to prevent the criminal activity in question from occurring.  Simple passivity may not be enough.


Comment 1: Note that, if the language of the lease is taken literally, we still have an extraordinarily harsh standard, since the criminal activity, under the lease language, as required by statute, need not be on or near the premises.  The provision says the prohibited criminal activity may be on the premises or off the premises.  It doesn't matter.


Comment 2: Would it have been better to read the language as giving the authority the power to evict in a wide range of cases and leave it to the authority's discretion as to when to exercise that power?  That clearly is what's going to happen in the case of off premises criminal activity. Further, the authority is going to have to exercise discretion as to whether the tenant has met the standard of reasonably trying to prevent the criminal behavior (a standard  by the way  that can be extracted from the lease language only through an extraordinary contortion which the court apparently did behind a curtain.)  In this case, for instance, there was some reason to believe that the drugs which the police found were not the guest's drugs at all, but in fact belonged to the tenant. Presumably there had been probable cause to execute a search warrant in the apartment, not on the guest.  So the police certainly suspected that the tenant possessed drugs.


Comment 3: Can private landlords go as far as the public landlords here in establishing a "zero tolerance" policy?  Farther?  (Remember that private landlords aren't engaged in "state action.)  Clearly it might be wise for private multi family landlords to take advantage of these developments in public housing to "beef up" their own tenant behavior standards.


Comment 4: For the view that the application of "zero tolerance" and "strict liability" are not so absurd, see the dissenting opinion in Rucker, joined in by four of the eleven judges on the court.

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