Federal Law Preempts Local Laws Derailing Eviction

In August, the Massachusetts Supreme Judicial Court ruled that federal law trumps, or preempts, the “innocent tenant defense” that residents facing eviction often raise, which typically is based on local law.

In Boston Housing Authority v. Garcia, a resident who was living with her three adult sons in a unit operated by the Boston Public Housing Authority (PHA) had signed the standard HUD lease that permits eviction for drug-related criminal activity. The police arrested two of her sons in separate incidents. The PHA complied with notice and hearing requirements, terminated the resident's lease, and sued to evict her.

The resident raised the state-law-based “innocent tenant” defense, which provided an exception to eviction where a resident could prove ignorance about the criminal activity of other household members. The trial court ruled for the PHA, and the Massachusetts Supreme Court upheld the ruling, ordering the eviction.

Court's Reasoning

The Court ruled that federal law preempts the “innocent tenant” defense, based on the U.S. Supreme Court's unanimous 2002 ruling in HUD v. Rucker. The U.S. Supreme Court had ruled that Congress had the constitutional authority to give PHAs the discretion to evict residents for drug-related criminal activity, as written in HUD's 2001 regulations, commonly referred to as HUD's One Strike policy.

In Rucker, the Court did not decide whether Congress intended to overrule state law that might limit PHAs’ exercise of their discretion. But it did rule that state law must yield to federal law when Congress has explicitly withdrawn state authority to regulate. The Garcia decision now joins a precedent set by Scarborough v. Winn Residential LLP in addressing that question (for a discussion of the Scarborough case, see “Residents Can't ‘Cure’ Criminal Activity to Avoid Eviction,” Insider, October 2007, p. 4; and “Bennington Error—Owner Should Have Sole Discretion to Evict,” Insider, November 2007, p. 1).

The Garcia decision says that federal policy, law, and regulations regarding eviction for criminal activity in federally assisted housing preempt state and local laws that conflict with, or frustrate the purpose of, federal policy.

The purpose of HUD's “One Strike Policy” and the underlying law enacted by Congress—the Anti-Drug Abuse Act of 1988—was to reduce drug-related crime at PHAs, the court said. That legislation and HUD regulations require PHAs and Section 8 owners to use leases permitting eviction for crimes committed by household members or guests even if the resident was unaware of the criminal activity. And federal law trumps state law when the latter poses an obstacle to congressional objectives.

State law may still require “cause” before a PHA can terminate a resident's rental assistance, the court said in the Garcia case, but the PHA in this case could evict for criminal activity by household members based on the lease. And the PHA did not abuse its discretion by terminating the resident's lease, the court said.

Local Law Cannot Hinder Federal Policy

With McFarland's help, we will examine four basic eviction scenarios that might be the basis for preemption by federal law:

1. Minimal finding of “illegal activity.”Federal law does not require that there be a criminal conviction (or even an arrest) before an owner may proceed with eviction of a resident based on illegal activity, says McFarland. And there is no requirement that a criminal court determination of illegal activity be the basis for the eviction. Obviously, a lease violation (proof that illegal activity took place) must be found by the court.

Indeed, even an arrest is not a necessary prerequisite to filing an eviction action, but it would, of course, be helpful in meeting the civil standard of proof that illegal activity took place.

The only requirement is that the court find (by the civil standard of “preponderance of the evidence”) that illegal activity took place. Federal law would preempt any requirement above and beyond that minimal finding.

2. No limit on scope of resident's responsibility for guests.Federal assisted housing law permits eviction based on a resident's activity and that of guests, visitors, and persons present in the unit with the resident's consent. A resident's responsibility also extends to all persons present in the unit or at the site with the resident's consent even if such persons do not “occupy” the unit. Federal law preempts any attempt by local law to limit the scope of a resident's responsibility for such persons.

3. No limit on location of resident's criminal activity.Local law cannot limit eviction based on where the criminal activity occurs. For example, under federal law the right to evict cannot be circumscribed based on the location where the illegal activity occurred. According to the One Strike

Policy, eviction is warranted if a resident engages in crime either on- or off-site. This is a practical necessity that prevents residents or their guests from avoiding eviction merely because they engage in crime somewhere besides the assisted site in which they reside.

4. Ignorance of illegal activity is no defense.A local law that exempts a resident from eviction on the basis that the resident was unaware of illegal activity in the unit also would be preempted by federal law. “Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents, or any drug-related activity on or off the premises by a resident, household member, guest or person under the resident's control is cause for terminating the tenancy,” says McFarland. “That's what One Strike is all about,” she adds.

Federal law preempts any state or local law stating that eviction may be ordered “only if the resident knew or should have known that illegal activity was taking place,” says McFarland. “Whether a court believes eviction will cause an adverse effect on others, such as innocent children, is not a factor to be considered,” McFarland explains. “An owner operating a site that is federally assisted has a right to evict the entire household as a result of one member's criminal activity,” she insists.

“It may sound harsh, but HUD's One Strike policy is designed to give an owner who receives federal subsidies the tools necessary to provide safe premises for its law-abiding residents,” she adds. “In other words, the federal government decided it will not subsidize criminal conduct in subsidized housing,” she says.

• Boston Housing Auth. v. Garcia, August 2007
• HUD v. Rucker, March 2002
• Scarborough v. Winn Residential LLP, January 2006

Insider Source

Margaret McFarland, JD: Director of Graduate Programs in Real Estate Development, Univ. of Maryland; College Park, MD