Registered Sex Offender Can Continue Occupying Premises

Facts: A PHA began eviction proceedings against a resident after discovering that he was a lifetime registered sex offender in the State of New York. The resident became a convicted sex offender sometime in 1997.

When the resident had applied for housing in March 2006, the application didn't specifically ask if an applicant was a lifetime registered sex offender. But the application did provide for a release of credit, criminal, and financial background information, if the applicant authorized such a review. The resident answered all questions on the application, and signed all releases authorizing the PHA to complete its background checks. The PHA conducted a background check on him, which included a search on the sex offender registry. After the background check was complete, he was accepted into the federally subsidized housing program. The resident and the PHA signed a lease agreement on Sept. 1, 2006, and he moved in the same day.

A number of years later, the PHA conducted another background check, and discovered the resident was a lifetime registered sex offender in New York. As a result, the PHA served the resident with an eviction notice. The notice stated that the resident “Never Had a Right or Privilege to Occupy” the premises due to his lifetime sex offender status.

The resident asked the court for a judgment in his favor without a trial, arguing that he had a valid lease signed by both parties. He argued that the “Never Had the Right or Privilege to Occupy” reason applies only to applicants or occupants who don’t have a lease or rental agreement, and never had one. Also, the resident asserted that the lease is neither void nor voidable as a result of any unilateral mistake by the PHA in admitting the resident as a registered sex offender into federally assisted housing, or a mutual mistake by both parties.

Ruling: A Connecticut trial court ruled for the resident.

Reasoning: The federal regulations the PHA relied upon state that a PHA must “prohibit admission” of a lifetime registered sex offender. Here, the PHA failed to do so. According to the HUD notice the PHA relied on, a public housing agency “must pursue [an] eviction” action against registered sex offenders. However, the court pointed out that the notice doesn’t specify that a resident’s sex offender status creates an independent legal ground on which to terminate the tenancy. In other words, federal law doesn’t provide for the automatic eviction of a sex offender, once he becomes a participant in federal housing, solely based on his status as a sex offender.

• Housing Authority of the City of Hartford v. Brothers, June 2013