To: New Jersey Law Revision Commission
From: Staff
Re: Landlord Tenant; Eviction from federally assisted housing
Date: May 9, 2011
MEMORANDUM
At the March meeting, an issue was raised concerning eviction from federally assisted housing. The current statute allows eviction from public housing for certain illegal activity based on a single incident. That provision does not require the landlord to give the tenant notice to cease and an opportunity to stop the activity. The latest staff draft broadened that provision to include “federally assisted housing”:
46A:15-1
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b. (5) in public housing under the control of a public housing authority or redevelopment agency or in any federally assisted housing, substantially violates or breaches any covenants or agreements contained in the lease pertaining to illegal uses of controlled substances, or other illegal activities, regardless of whether sufficient language in the lease conveys that the violation or breach of the covenant or agreement allows the landlord to seek a termination of the lease, eviction of the tenant and a return of possession of the rental premises, provided that the covenant or agreement conforms to federal law and regulations regarding the lease provisions and was contained in the lease at the beginning of the lease term; or
The provision was broadened in response to case law that held that federal law governed eviction from premises leased with federal assistance (Section 8 housing). See Oakwood Plaza Apartments v. Smith 352 N.J. Super. 467, 470 specifically holding that federal law, 42 USC 1437f, required that a Section 8 landlord have the discretion to evict tenants when a member of the tenant’s household engaged in drug-related criminal activity.
Legal Services objected to the broadening of the provision, stating that federal regulations left procedural matters to the states, that the notice requirement was procedural, and the regulations allowed additional state protections for tenants. The relevant regulation is:
24CFR247.6 (c) State and local law. A tenant may rely on State or local law governing eviction procedures where such law provides the tenant procedural rights which are in addition to those provided by this subpart, except where such State or local law has been preempted under part 246 of this chapter or by other action of the United States.
The additional protections allowed by this regulation are only ones that are “procedural”. It can be argued that a requirement of a notice to cease is a matter of procedure. However, that procedure cannot be allowed to undercut the statutory requirement of 42 USC 1437f that the landlord be given the discretion to evict. The question arises as to what is the result if a notice is given and the tenant ceases the illegal activity. The notice would suggest that an eviction was no longer possible. In Oakwood Plaza Apartments v. Smith, the household member who had engaged in drug activity had moved out permanently. Notwithstanding, the court held that the landlord had the discretion to evict the tenant household. That holding implies that after a notice and compliance by the tenant, the tenant could still be evicted. If that is the situation, the notice to cease would be unnecessary and deceptive. On that basis, staff continues to recommend the additional language in 46A:15-1b.