Facts: The son of a deceased resident claimed succession rights to his mother’s unit located in a public housing complex. The deceased resident had lived in the unit for approximately 50 years, and throughout her tenancy, paid her rent on time and was in good standing with the owner.

In 2004, the then 74-year-old resident requested that her son be permitted to move in with her to take care of her. Her written request described her poor health and various medical needs, which included congenital heart failure, diabetes, remission from cancer, and use of an oxygen tank 24 hours a day. She then completed the required form requesting to add a tenant to a lease. That year, the son was 50 years old, psychiatrically disabled, and receiving Supplemental Security Income as his sole source of income.

The PHA didn’t act on this application within 90 days as required by internal rules. But the mother informed the management office that her son had moved in with her and she listed him and his income on her subsequent income affidavits for the unit. She also named him in the section of the affidavit of income requiring a description of “family composition” as a person living with her in her unit. The PHA’s notes indicate that the mother went to the management office in 2005, regarding an “unauthorized occupancy,” but that the PHA told her that “everything was okay.”

In 2006, the PHA conducted a criminal background check on the son, and found that he had a 10-year-old burglary conviction. Under the PHA’s internal rules, the resident should have been given the opportunity to show that her son was rehabilitated, but the PHA made no inquiry of the resident or her son in 2006 as to the conviction, and gave neither of them an opportunity to present evidence of rehabilitation at that time.

Having deemed the son ineligible due to a criminal conviction, the site manager was required to notify the son that he had to vacate the premises within 15 days, and then to initiate Termination of Tenancy proceedings if the son didn’t leave. But no one told the residents that the son had to vacate the premises in 2006, and no termination proceeding was initiated. In fact, the record contained no evidence that the PHA issued any oral or written decision on the 2004 application to add the son to the lease.

When the resident died, the son promptly notified the PHA of his mother’s death, and he continued to pay the monthly rent for the unit. In 2007, he filed a second request to be added to the lease, and the PHA issued a written order denying the application on the grounds that the mother had died prior to its filing and that he was ineligible to gain any rights to his mother’s tenancy until May 2008.

A hearing officer denied the son remaining family member status. She ruled that the PHA had “belatedly but properly disapproved” the mother’s permanent permission request in 2006 when a criminal background check revealed a burglary conviction in 1996 that made the son ineligible for residence until May 2008. The son then asked the court to reverse the hearing officer’s decision.

Ruling: A New York appeals court invalidated the hearing officer’s decision and sent the case back for further review.

Reasoning: The appeals court found that while the PHA correctly asserted that the son’s remaining family member status was jeopardized by the fact that he never received written permission to be added to his mother’s lease while she was alive, the record was plain that the mother took every step to have her son added to her lease. It was undisputed that the PHA violated a number of its own internal rules by determining that the son’s 1996 conviction precluded him from joining his mother’s tenancy until May 2008, without notifying the mother or son, and without giving them the opportunity to present evidence of his rehabilitation.

The court stated that it couldn’t determine whether this almost 60-year-old, psychologically disabled man, who presented evidence of continuing psychiatric and substance abuse counseling, presently poses a threat to the other tenants. Accordingly, they sent the case back to the PHA for reconsideration of this narrow issue.

·         Gutierrez v. Rhea, April 2013