PHA Didn't Follow State's Notice Requirements

Facts: A local PHA claimed that a resident violated his lease by using marijuana. One of the site’s security officers testified at the eviction evidentiary hearing that he smelled marijuana coming from the resident’s unit during his routine patrol of the building. Although the resident denied using marijuana that day, the court found the security officer more credible. Thus, the court determined that there was a “preponderance of evidence indicating that there’s drug activity.”

The court evicted the resident, who was living in the unit under a one-year lease. The parties agreed that the resident, who was 62 at the time of the hearing, is disabled. The parties also agreed that the PHA filed this eviction action without first giving the resident the five-day, right-to-cure notice as required by state law. The PHA didn’t dispute this. Rather, it argued that federal law preempted the state law’s right-to-cure provision. The lower court sided with the PHA, and the resident appealed.

Ruling: A Wisconsin appeals court reversed the lower court’s ruling.

Reasoning: Although the lease provides that “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy,” the lease also specifically says that the PHA will comply with the termination notice provisions of Wisconsin state law.

The court ruled that federal law didn’t preempt state law in this case because neither the state’s notice requirements nor the resident’s lease with the PHA conflicts with federal law, because compliance with both provisions isn’t “a physical impossibility” and enforcement of the five-day right to cure doesn’t block federally required notice-to-terminate requirements.

• Milwaukee City Housing Authority v. Cobb, May 2014