PHA Can Evict Resident for Guest’s Criminal Behavior

HUD says owners may terminate tenancy for any of the following types of criminal activity by a covered person (that is, a tenant, household member, guest, or other person under the tenant’s control):

1.       Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or

2.       Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises [HUD Handbook 4350.2, par. 8-14(A)(2)].

In addition, the covered person doesn’t have to be arrested or convicted for a flagged criminal activity. Owners may terminate tenancy and evict residents for criminal activity by a covered person if they determine that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying a criminal conviction standard of proof of the activity.

In a recent case, a trial court ruled that a housing authority could evict a resident after the resident’s adult son assaulted his girlfriend at the apartment building when the girlfriend came to pick up their child. The resident tried to argue that the evidence didn’t show that she breached the lease.

What Happened

The incident occurred while the resident was visiting a relative. According to the police incident report, the girlfriend reported that she was in a dating relationship with the resident’s son and they had a two-year-old son together. She told officers that she went to pick up her son from the apartment. She had a flat tire on the way, and the resident’s son didn’t want her to take the child because she was so late. She picked up her son and went outside to the parking lot to leave. The resident’s son was upset and took the child out of her arms using an open hand to push her away, causing her to stumble. He then went inside, locking her out of the apartment building. She then called police. The officer issued a citation on the resident’s son for family violence for the incident.

At trial, the manager testified that other tenants had complained that the resident’s son was selling drugs out of the apartment. The resident testified that her son doesn’t live with her, but he comes over and does things for her like mopping the floor and taking out the trash and checks on her when she is sick or has seizures. She testified that he never stayed with her, never had a key to her apartment, and never spent the night. She heard about the complaints about her son’s activities and told the manager that she couldn’t control him, and they should do something to bar him from the premises if there was a problem. She also explained she was keeping her grandson, and the girlfriend would come to her apartment to pick the child up from her son.

Court Sides with PHA

Under the terms of the lease, violation of the tenant obligations is grounds for termination of the lease. The tenant obligations section of the lease says, “Tenants, their family members, guests and other persons under the control of Tenant are obliged to refrain from and cause Tenant, family/household members, guests and other persons under Tenant’s control to refrain from any drug-related or violent criminal activity or other activity that threatens other.”

On appeal, the resident argued that she wasn’t responsible for her son’s conduct and, therefore, he couldn’t be considered a “person under the Tenant’s control.” However, the lease defines the phrase “Other person under the Tenant’s control” as “a person who, although not staying as a guest in the unit, is, or was at the time of the activity in question, on the premises because of an invitation from the Tenant.”

There was evidence her son visited her and assisted her with housework. He checked on her because of her medical condition. The resident kept his child and his girlfriend knew to pick the child up at the apartment, including on the day of the incident. The record indicates the trial court believed that the resident allowed her son to be at the apartment and gave him access.

As a result, the appeals court found there was evidence to support that the resident’s son was her guest and that he engaged in violent criminal activity in violation of her lease. The court said it could reasonably believe from the evidence that her son, even if not staying as a guest, was on the premises because of an express or implied invitation from the resident. The appeals court agreed with the lower court’s judgment.

• Berkley v. Housing Authority of Dallas, August 2022