Daily Development for
Wednesday, July 17, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HOUSING; PUBLIC HOUSING; EVICTION; CRIMINAL CONDUCT: Under preemptive provisions of federal housing law, public housing authority can evict all residents of a housing unit when one of the residents, without the knowledge or consent of others, has been guilty of possession of drugs within the unit. South San Francisco Housing Authority v. Guilory, 49 Cal. Rptr. 2d 367 (Cal. Super. 1995)

The lease with the housing authority stated expressly that the authority had a "zero tolerance" drug policy, and required tenant to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in (ii) [a]ny drug-related cirminal activity on or near the premises." Tenants and tenants' son, listed as a "household member," signed the lease. During a lawful search of the son's room pursuant to a probation on a non-drug related offence, authorities found drugs in the son's clothing hanging in a closet. The authority moved to evict the whole family, consisting of parents, sister and niece, in addition to the son.

Wishing to test their lease provision, apparently, the authority stipulated for trial that none of the other family members knew or consented to the son's drug possession.

Held: Eviction stands. The lease language is clear, and required by preemptive federal law.

Tenants had attempted to argue that the California public housing laws established a "reasonable cause" standard for eviction. Citing out of state authority, the tenants argued that this standard is the equivalent of a "good cause" standard, and requires that tenants have some knowledge or reason to know of their family members criminal activity.

The court held that the California law had no impact here, as the case was controlled by preemptive federal law. Although the federal statute is not expressly preemptive, it necessarily is controlling if it directly conflicts with state law provisions. Here, the federal statute, after a Congressional finding that a "zero tolerance" drug policy is necessary because of the real threat of drugs to the housing activities and to the society at large, requires that public housing tenants are obligated:

"To assure that the tenant, any member of the household, as guest, or another person under the tenant's control, shall not engage in:

. . .

(B) Any drug-related criminal activity on or near such premises.

Any criminal activity in violation of the precedeing sentence shall be cause for termination of tenancy, and for eviction from the unit."

Comment 1: The case is totally consistent, of course, with the generally tolerant attitude courts have had with regard to government activity implementing the "war on drugs." Note that the provisions apply not only to members of the tenant's family, but to guests, and apply not only to on-premises activity, but to conduct "near the premises."

It would be one thing to say that any drug-related criminal conduct by a tenant or tenant's family or guest is so dangerous to the authority's activities that the existence of such conduct justifies eviction. Effectively, the court and the authority are reading the language to so provide. But does the statutory language really say that? It says that the tenant "has an obligation . . . to assure that" drug-related criminal conduct shall not occur. How can the tenant assure that no crimes will occur outside the premises committed by persons over whom the tenant has no control - such as guests of the tenant? For that matter, how can a tenant "assure" that children will not do bad things? Any parent can tell you that a willful teenager can evade the best laid plans of parents to control conduct.

In short, if the federal statute had really established the "zero tolerance" policy that the authority and the court here provide, we might have a different case. But the Congress chose the words it chose for a reason. The use of "an obligation to assure" language certainly is susceptible of several interpretations, and we probably haven't seen the last of this issue.

Comment 2: It's difficult for the editor to be too righteous about the authority's position here when the editor has just excoriated the government's position on federal forfeiture. The government's position in each case is the same - the "war on drugs" is an emergency situation in which certain intrusion on fundamental rights should be tolerated. But are rights "fundamental" if they're ignored for reasons of government expediency? There may be a basis for "zero tolerance" in housing projects - certainly other measures don't seem to have worked - but we should recognize that when we turn people out of their homes for reasons totally beyond their personal control we are effectively declaring civil emergency, and we should be vigilant that these activities continue only to the extent that the emergency requires, and only so long as it exists.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.