D.C. Housing Authority Asked to Reconsider Pratt Decision
In February, the D.C. Court of Appeals dealt the D.C. Housing Authority (DCHA) and its residents a setback. The court's decision in Pratt v. District of Columbia Housing Authority put a dent in DCHA's efforts to have local D.C. law support HUD's “One-Strike” policy. The One-Strike law, which permits owners to evict assisted housing residents for lease violations involving criminal activity, applies to Section 8 (Housing Choice Voucher) and Section 9 (safe public housing) residents, says Margaret McFarland, former general counsel to DCHA.
In the Pratt case, a DCHA resident lived with her son, whose identification card turned up in a stolen vehicle that he was seen driving and that the police found abandoned on DCHA property near his mother's unit. High-speed chases involving stolen vehicles have resulted in multiple injuries and deaths in the District, and abandoned and stolen cars left on housing authority property have been a source of serious disturbance of DCHA's residential communities, McFarland says.
Almost a year after the son's illegal activity, DCHA served the resident with a termination notice. The notice claimed that the resident's household was a threat to neighbors' “peaceful enjoyment” of the site. At trial, the judge instructed the jury that to evict, DCHA had to prove criminal activity that violated the lease. After DCHA prevailed, the resident appealed, arguing that DCHA should have sent her a notice giving her the right to cure—that is, to fix—the violation before suing to evict her. The cure, she said, would be to remove her son from the lease.
The resident based her argument on a local District of Columbia landlord-tenant notice provision that gives tenants who receive certain types of notices a right to cure the underlying violation to avoid penalties, such as eviction.
The resident's argument was also based on the fact that the DHCA did not specifically identify criminal activity as a violation, although it did have a provision that required the resident to maintain the property in a “safe” condition and not disturb the “peaceful enjoyment” of the property by other residents. The D.C. Court of Appeals ruled for the resident, voiding the eviction and awarding her continued possession of the unit.
The Court's Reasoning
According to the court, the problem with DCHA's position was that its then lease did not incorporate the precise language of the federal “One-Strike” law, which permits eviction of subsidized housing residents for lease violations involving criminal activity. The court said that the One-Strike language must appear in the lease. Therefore, the court ruled that the federal One-Strike law overrides local D.C. housing law only when the lease contains the language of the One-Strike law.
In other recent cases, the court upheld evictions from federally assisted housing based on the federal One-Strike law. The court ruled in Scarborough v. Winn Residential, LLP [January 2006] that the One-Strike law preempted a local D.C. law giving residents of federally assisted housing the right to cure lease violations and, consequently, to avoid eviction.
However, in Pratt, the court ruled that the lower court's basis for eviction was a lease provision in which criminal activity was not even mentioned. Therefore, the court ruled that because the language of the federal One-Strike law was not in the lease, the One-Strike law did not eliminate the resident's right to cure a lease violation.
In addition, the court ruled that the right to cure a lease violation extended to all types of lease violations, including those for criminal activity. As applied to Pratt, the court indicated that the resident might cure the lease violation for criminal activity by taking such measures as, for example, “excluding her son from the household to prevent recurrence of [his] criminal activity,” the court said.
What the Decision Means for Owners
According to McFarland, the court's decision is troubling but has a very narrow application. In her view, the ruling in Pratt does not undermine or diminish the prior rulings that have permitted eviction where the lease includes the One-Strike language.
For example, in Scarborough the court ruled that an “innocent resident” defense is not permissible, says McFarland, who represented DCHA in the Scarborough case. In addition, there is no right “to cure” a violation, she says. The Pratt case does not undermine these legal principles, because the decision is a narrow interpretation of DCHA's lease language, she adds.
McFarland suggests amending your lease if it does not contain specific regulatory ‘one strike’ HUD language. Better to be safe than sorry, so put the exact language into your lease, she says.
In the Scarborough decision, the D.C. Court of Appeals had quoted approvingly the point made by a lower court judge that an act of a noncontinuing nature, such as a crime, cannot be “taken back.” Even if the resident in Pratt removes her son from the lease, there is no guarantee that he will not return to the site for long-term stays with her, McFarland says. In the best of circumstances, the potential for illegal occupancy by the son creates a lease enforcement problem, she adds. Site managers of “Low-rise” buildings rarely know which residents are on or off-site on weekends or after hours, McFarland says. So taking a resident's name off the lease does not make a problem tenancy go away, she adds.
The court's ruling in Pratt—narrow as it is—appears to exalt form over substance so as to undermine federal policy designed to provide assisted housing owners with the tools necessary to make sites safer, McFarland says. The DCHA is petitioning for a rehearing in Pratt so that the court will have to reconsider its decision, she adds.
HUD's One-Strike Policy: 66 Fed. Reg. 28776, May 2001.
Margaret McFarland, JD: Director, Real Estate Development Programs, University of Maryland; College Park, MD 20742; (301) 405-6790; firstname.lastname@example.org.