Plaintiff in a class action in behalf of herself and other tenants of defendant seeks to have this court declare as unconstitutional the lease used by defendant and presently in effect in the low-rent housing projects it manages. Defendant moved for summary judgment and plaintiff, agreeing that there was no issue of material fact, consented to have the matters decided as on cross-motions for summary judgment.
Defendant is a municipal housing authority organized pursuant to N.J.S.A. 55:14-1 et seq. , and is subject to the provisions of the United States Housing Act, 42 U.S.C.A. § 1401 et seq. The latter provides that the United
States Housing Authority, now the Department of Housing and Urban Development (hereinafter HUD), may make such rules and regulations as may be necessary to carry out the provisions of the act. 42 U.S.C.A. , § 1408.
Under this delegation of power HUD has issued certain regulations, or circulars, setting forth various provisions which are prohibited in low-income public housing leases such as those under consideration, and requiring other provisions to be included in such leases. Defendant concedes that its present form of lease may not comply with these circulars, but challenges the authority of HUD to impose such mandatory regulations on the local housing authorities in the administration of low-income housing programs.
Circular RHM 7465.6, issued August 10, 1970, prohibits certain unfair provisions in low-rent public housing project leases, including a waiver by the tenant of any notice or right of legal proceedings prior to eviction where the housing authority determines that the tenant has violated his lease. Defendant's form of lease provides in part:
5. The tenant hereby expressly waives all notice required by law to terminate his tenancy and all legal proceedings to recover possession of said premises, and agrees that upon any such termination the Management, at its option, may immediately reenter the premises and dispossess the Tenant without legal notice or the institution of any legal proceedings.
Circulars RHM 7465.8 and 7465.9, issued February 22, 1971, require that low-rent public housing project leases provide, among other things, the circumstances under which, for good cause only, the authority may terminate the lease, and a grievance procedure under which a tenant may obtain a hearing on any attempted termination of the lease or other action by the authority. Defendant's form of lease provides in part, without any further applicable provision:
The Management or the Tenant may terminate this tenancy at the end of any calendar month by giving the Tenant or the Management, as the case may be, one month's prior notice in writing.
RHM 7465.6 further provides that the housing authority may not include in its lease an exculpatory clause relieving the landlord of liability for failure to provide utilities or other services, whether deliberate or negligent on the part of the housing authority. The lease in question provides:
The Management shall not be liable for failure to supply any of the above services, electrical current and ...