Law Allows, But Doesn't Mandate, Eviction in Drug Cases

Facts: After police found crack cocaine, powdered cocaine, and drug paraphernalia in a public housing unit, the Housing Authority of Covington issued a notice of eviction to the resident. The resident claimed that she had no knowledge of drugs in her apartment and had not put them there. Her nephew, who visited from time to time, had. After learning of his arrest, she informed him to stay away, and he had not returned. However, the housing authority proceeded with the eviction, and the resident challenged the action in court. The resident said that her lease, which followed the local landlord-tenant law, gave her the opportunity to remedy a breach of the lease, which she had done. The housing authority maintained that federal law [42 U.S.C. §1437d(l)(6)] obligated the resident to assure that her guests did not engage in drug-related criminal activity on the premises and that the federal law preempted the local landlord-tenant act.

Decision: The Court of Appeals of Kentucky sided with the resident and quashed the eviction. The court said that the resident met the terms of the lease and sufficiently remedied the drug-related criminal activity by barring the nephew from her apartment.

Reasoning: In its 2002 decision in HUD v. Rucker, the United States Supreme Court ruled that federal law requires lease terms that give housing authorities power to evict tenants for the drug-related criminal activity of household members and guests whether or not the tenants knew, or should have known, about the activity. The Kentucky court said the law, according to Rucker, allowed no-fault eviction, but it did not mandate eviction in all drug cases. Local authorities have the discretion to decide whether to evict tenants, and they may follow local landlord-tenant law in doing so.

• Housing Authority of Covington v. Turner, May 2009

EDITOR'S NOTE: HUD's guidance to PHAs on the Rucker decision can be found in HUD Notice PIH 2002-9 (HA), which is available online at: http://www.hud.gov/offices/pih/publications/notices/02/pih2002-9.pdf. Note that HUD's model lease for multifamily programs includes language allowing “one-strike” termination for criminal or drug-related activity of tenants or guests. For discussions of other important one-strike cases, see the Insider, November 2007, p. 6; December 2007, p. 5; June 2008, p. 8; and November 2008, p. 10.