On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. Lt-2682-01/Lt-3007-01.
Before Judges Wefing, Parrillo, and Payne.
The opinion of the court was delivered by: Payne, J.S.C.(temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we are again called upon to decide whether innocents may be evicted from their governmentally-subsidized apartment because of the drug-related activity of a family member.
This matter was commenced as an eviction action by a Section 8 landlord against its tenant, head-of-household Andrea Smith, who had been arrested for drug-related activity. By the time that suit was instituted, Smith had allegedly vacated the premises (she says, for good) and had been replaced there by Tamia Feaster, to whom legal custody of Smith's three minor children was transferred. Feaster intervened in the eviction action on the children's behalf arguing below that she and the children, as innocent tenants, could not be evicted under New Jersey law. The trial court agreed with Feaster's position and, after consideration of stipulated facts, dismissed the eviction action. This appeal by the landlord followed. For the reasons stated below, we reverse and remand the case for further proceedings in accordance with our opinion.
We previously confronted issues relating to the eviction of innocent family members in two cases in which we were called upon to construe a provision of New Jersey's Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12, that permits eviction of a tenant or lessee who "knowingly harbors or harbored [in the leased premises] a person who committed [a drug offense], or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently." N.J.S.A. 2A:18-61.1(p). See Housing Authority v. Alicea, 297 N.J. Super. 310 (App. Div. 1997) and Housing Authority v. Thomas, 318 N.J. Super. 191 (App. Div. 1999). In those cases, we determined that "to justify the ultimate sanction of eviction under N.J.S.A. 2A:18-61.1(p), a tenant must not only 'permit' a drug offender to occupy the leased premises, but must also tolerate the offender's occupancy of the premises knowing that such person has violated the [Comprehensive Drug Reform Act]." Alicea, supra, 297 N.J. Super. at 313; Thomas, supra, 318 N.J. Super. at 195. We thereby recognized an innocent lessee exception to New Jersey's statutory cause for eviction.
Since our decisions in Alicea and Thomas, a similarly- motivated provision of the United States Housing Act of 1937, 42 U.S.C. §§ 1437 to 1437z, applicable to federally-subsidized, governmentally-owned and -operated public housing, has been construed by the United States Supreme Court to give public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest has been found to have engaged in drug-related criminal activity on or near the leased premises, even if the tenant had no knowledge of the activity. See Department of Housing and Urban Development v. Rucker, ___ U.S. ___, 122 S.Ct. 1230, ___ L.Ed.2d ___ (2002), construing 42 U.S.C. 1437d(l)(6). *fn1 The Court held that 42 U.S.C. §1437d(l)(6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity. [Id. ___ U.S. at ___, 122 S.Ct. at 1233, ___ L.Ed.2d at ___.] *fn2
The discretionary nature of the determination to evict was emphasized by the Rucker Court, which held:
The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from "rampant drug-related or violent crime," 42 U.S.C. § 11901(2)(1994 ed. and Supp. V), "the seriousness of the offending action," 66 Fed. Reg., at 28803, and "the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action," ibid. [Rucker, supra, ___ U.S. at ___, 122 S.Ct. at 1235, ___ L.Ed.2d at ____ (emphasis in original).] Discretion has also been emphasized in federal regulations, which provide that in deciding to evict for criminal activity, the public housing authority "may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action." 24 C.F.R. § 966.4(l)(5)(vii)(B) (2002).
Factors relevant to the landlord's decision are also contained in non-binding interpretive materials generated by the Department of Housing and Urban Development (HUD) since Rucker was decided. In a letter dated June 6, 2002 from HUD Assistant Secretary Michael M. Liu to Public Housing Directors, Mr. Liu stated:
In Rucker, the Court unanimously affirmed the right of public housing authorities, under a statutorily-required lease clause, to evict entire public housing households whenever any member of the household, or any household guest, engages in drug- related or certain other criminal activity. The Rucker decision upholds HUD regulations that, since 1991, have made it clear both that the lease provision gives PHAs such authority and that PHAs are not required to evict an entire household -- or, for that matter, anyone -- every time a violation of the lease clause occurs.
Therefore, after Rucker, PHAs remain free, as they deem appropriate, to consider a wide range of factors in deciding whether, and whom, to evict as a consequence of such a lease violation. Those factors include, among many other things, the seriousness of the violation, the effect that eviction of the entire household would have on household members not involved in the criminal activity, and the willingness of the head of household to remove the wrongdoing household member from the lease as a condition for continued occupancy. The Secretary and I urge you to consider such factors and to balance them against the competing policy interests that support the eviction of the entire household.
Like Congress and the Supreme Court, HUD recognizes that PHAs are in the best position to determine what lease enforcement policy will most appropriately serve the statutory interest of protecting the welfare of the entire tenant population. I know that you will continue to act in a manner that protects that general welfare, while giving consideration -- when you deem it appropriate -- to the interests of ...