FEINSTEIN, RAISS, KELIN & BOOKER, L.L.C.
100 Executive Drive Suite 360
West Orange" New Jersey 07052
(973) 324-5400
Attorneys for Plaintiff
JERSEY CITY MANAGEMENT, INC., Plaintiff,
vs.
HIEN NGUYEN, Defendant.
SUPERIOR COURT OF NEW JERSEY
SPECIAL CIVIL PART
LANDLORD/TENANT
DOCKET NO.: LT-13435-10
PLAINTIFF'S MEMORANDUM OF LAW
On the Brief: Tracey Goldstein, Esquire
LEGAL ARGUMENT
POINT II
THE PROPERTY IS FEDERALLY SUBSIDIZED AND THE LANDLORD CAN RELY UPON N.J.S.A. 2A:18-61.1e(2) TO EVICT THE TENANT
N.J.S.A. 2A:18-61.1 e(2) permits eviction of a tenant living at property that receives federal assistance if that tenant, members of their household, their guests and others under their control engage in criminal activity in violation of the lease. See, Department of Housing & Urban Development v. Rucker, 535 U.S. at 125; Oakwood Plaza Apartments v. Smith, 352 N.J. Super. at 467. More specifically, e(2) provides that a tenant may be evicted:
...in public housing under the control. of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities whether or not a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term. (Emphasis supplied)
While the plain language of e(2) of the Anti-Eviction Act expressly applies to public housing under the control of a public housing authority or redevelopment agency, e(2) has been applied to tenants who are recipients of Section 8 assistance and the property was not under the control of a public housing authority or redevelopment agency. Oakwood, supra. Since this Property receives project-based Section 8 assistance and since the Tenant's son engaged in criminal activity which is prohibited by the lease, the Landlord can rely upon e(2) as a basis for eviction.
A. The Purpose Of e(2) Of The Anti-Eviction Act Is To Allow Federally Assisted Properties To Evict Tenants As Result Of Criminal Activity.
A reading of the Anti-Eviction Act, its legislative history and the cases interpreting it demonstrate that the Anti-Eviction Act was never intended and should not be interpreted to prevent the eviction of a tenant for criminal activity. The purpose of the Anti-Eviction Act is to eliminate evictions for arbitrary and capricious reasons and to limit them to reasonable grounds. Jijon v. Custodio, 251 N.J. Super. 370, 372 (Law Div. 1991); Bradley v. Rapp, 132 N.J. Super. 429 (App. Div. 1975). However, the New Jersey Legislature has a no tolerance policy with respect to such behavior since three separate grounds for eviction for criminal activity are included in the Anti-Eviction Act (subsections e(2), nand pl. In fact, the New Jersey Legislature has determined that criminal activity is so egregious that a Notice to Cease is not required prior to the service of a Notice to Quit. See, N.J.S.A. 2A:1861.2; (Muros v. Morales, 268 N.J. Super. 590 (App. Div. 1993) stating [T]he law does not require a warning to cease such behavior because it is so clearly improper and antithetical to the landlord tenant relationship, and because repetition is not an element of the impropriety of the behavior. [Fn 2 Muros v. Morales, 268 N.J. Super. at 590 referred to sections n, 0 and p of the Act and was decided in 1993. E(2) of the Act was not adopted until 1997, which explains why it is not referenced in the case as another means to obtain an eviction for criminal activity without service of a Notice to Cease. ]
The purpose of enacting subsection e (2) was to allow federally funded properties to enforce its lease provisions which prohibit criminal activity. Housing Authority and Urban Redevelopment Agency of City of Atlantic City v. Spratley, 327 N.J. Super. 246 (App. Div.· 1999). All federally assisted properties are charged with the responsibility of providing safe housing for their tenants. That goal is advanced by regulations mandating the inclusion of provisions in tenant leases prohibiting criminal activity on or near the project. See Housing and Redevelopment Authority of the Township of Franklin v. Miller, 397 N.J. Super. 425 (App. Div. 2007), 42 U.S.C.A. §1437d(1) (6) and 42 U.S.C.A. 1437f (d) (1) (iii). The right to evict for criminal activity is critical to preserving the quality of life for residents at the property and neighboring areas, in deterring criminal activity and preventing the reoccurrence of criminal activity. Oakwood, at 475.
Under the plain language of the Anti-Eviction Act, a prerequisite to eviction under subsection e (2) is that the property must be considered "public housing under the control of a public housing authority or a redevelopment agency". However, as stated above, e(2) applies to properties receiving project-based Section 8 Assistance regardless of whether the property is under the control of a public housing authority or redevelopment agency.
The New Jersey Appellate Division in Oakwood Plaza Apartments v. Smith, 352 N.J. Super. 467 (App. Div. 2002) conclusively established that a tenant receiving Section 8 assistance is sUbj ect to eviction for a lease violation when the lease violation is a result of criminal activity. In Oakwood, the tenant, (who received Section 8 assistance pursuant to 24 C.F.R. §982.310, the tenant voucher program) had been arrested for criminal drug activity. The Appellate Division concluded that the unanimous Supreme Court decision in Rucker, supra (where the Supreme Court ruled that tenants are strictly liable for drug-related criminal activity by members of their household, guests and other persons under their control) applied to recipients of Section 8 assistance. Rucker, 535 U.S. at 125, involved a resident living in a complex operated by a public housing authority.
The Oakwood Court held that since the language in the statutory provisions governing drug-related activity in public housing authorities' leases, which is 42 U.S.C. §1437d and Section 8 leases, which is 42 U.S.C. §1437f were virtually identical, eviction as a result of criminal activity was warranted. Id. at 473. That Court stated:
Because of the virtual identity of language in statutory provisions governing drugrelated activity as a basis for eviction in public and Section 8 housing, there is no doubt that the reasoning in Rucker is applicable to this Section 8 case.
Id. at 474. Obviously, the phrase, "under the control of a public housing authority or redevelopment agency" in subsection (e) 2 was viewed by the Oakwood Court as mere surplusage.
The Court's rationale in Oakwood is applicable to the facts of this case for two reasons: (1) Oakwood involved a tenant receiving section 8 assistance and here, the entire project receives project-based Section 8 assistance; and (2) the statute and regulations pertaining to termination of the lease as a result of criminal activity are the same in leases at public housing and properties receiving project-based Section 8 assistance.
In Oakwood, the tenant was just a recipient of Section 8 assistance; the property was not federally funded or controlled. Here, the entire project is funded and controlled by HUD. Thus, under the facts of this case, a more compelling reason exists to justify a finding that this Property is considered public housing and entitled to rely upon (e)2 for eviction than in Oakwood.
Beyond that, the statutes and regulations, which apply to termination of the lease as a result of criminal activity in public housing and properties receiving project-based section 8 assistance are identical. Both sets of statutes and regulations compel the Landlord, whether it is in public housing or property privately owned receiving project-based Section 8 assistance, to include the same language regarding termination for criminal activity in their respective leases. [Fn3 42 U.S.C. 1437d (1)6 and the federal regulations codified at 24 C.F.R. §966.4 (f)12(i) and (ii) are applicable to public housing. They require the housing provider to include a specific provision in the lease relating to termination of the lease as a result of criminal activity. 42 U.S.C. 1437f(d) (1) (B) (iii) and the federal regulations codified at 24 C.F.R. 5.859 (made applicable through 24 C.F.R. §881) apply to project-based section 8 substantial rehabilitation programs. This statute and the regulations cited thereafter require the housing provider to include the same specific provision in the lease as contained in public housing which relates to termination of the lease as a result of criminal activity.]
In fact, in 2001, HUD amended its regulations to compel all federally assisted housing programs, including properties receiving project-based section 8 assistance, to include the same standard lease clauses in its lease which relate to termination of the lease as a result of criminal activity that threatens the health, safety or quiet enjoyment of other residents and others in the immediate vicinity. As a result of this amendment, all federally assisted properties have leases which contain the same provision prohibiting criminal activity. See, 66 FR 28776 01 This action by HUD demonstrates HUD's intention that all federal assisted properties treat criminal activity the same.
Specifically, 42 U.S.C. A. §1437f (d) (1) (B) (iii) which was codified in the federal regulations at 24 C.F.R. §5.89, which applies to project-based section 8 assistance provides:
[d]uring the term of the lease, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises or any drug-related criminal activity on or near such premises, engaged in by a tenant of any unit, 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.
42 U.S.C. §1437d (1)6 and the federal regulations codified at 24 C.F.R. §966.4 (f) 12 (i) and (ii) are applicable to public housing and require their leases to contain the same provision. Since both statutes and federal regulations mandate the inclusion of a provision in the lease which require termination of the lease as a result of criminal activity and they are exactly the same, there is no reason why the two types of properties should be treated any differently under e(2).
The Tenant makes the conclusory statement in her brief that there are "vast differences that exist between the way Conventional Public Housing functions and the manner the Section 8 Program functions." However, the only difference offered in support of that argument is that a public housing authority has a Board of Commissioners upon which tenants serve that make policy decisions regarding the PHA and property receiving proj ect-based section 8 assistance does not have such a Board. Respectfully, this distinction is inconsequential. It has absolutely no impact on the statute and regulations which both types of federally subsidized properties must follow regarding termination of the lease due to criminal activity.
Moreover, the Tenant argues that Title 24 of the Code of Federal Regulations, the main source of federal law for HUD, treats the programs differently. Yet, the Tenant fails to articulate any real distinction between the two. Importantly, the Tenant refers to 24 C.F.R. §5.100 in her brief and recites the definition of public housing and a public housing agency in those regulations. However, the Tenant ignores the fact that under that same federal regulation, both types of property are defined as federally assisted housing, that these regulations apply to both types of properties and both properties are treated similarly under those regulations. See, 24 C.F.R. §5.1004
[Fn4 According to 24 C.F.R. §5.100, Federally assisted housing is defined as: Federally assisted housing (for purposes of subparts I and J of this part) means housing assisted under any of the following programs:
(1) Public Housing;
(2) Housing receiving project-based or tenant-based assistance under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f) ;
(3) Housing that is assisted under section 202 of the Housing Act of 1959, as amended by section 801 of the National Affordable Housing Act (12 U.S.C. 1701q);
(4) Housing that is assisted under section 202 of the Housing Act of 1959, as such section existed before the enactment of the National Affordable Housing Act;
(5) Housing that is assisted under section 811 of the National Affordable Housing Act (42 U.S.C. 8013);
(6) Housing financed by a loan or mortgage insured under Section 221(d) (3) of the National Housing Act (12 U.S.C. 17151 (d) (3) that bear interest at a rate determined under the proviso of section 221(d) (5) of such Act (12 U.S.C. 17151 (d) (5);
(7) Housing insured, assisted or held by HUD or by a State or local agency under section 236 of the National Housing Act (12 U.S.C. 1715z-1); or
(8) Housing assisted by the Rural Development Administration under section 514 or section 515 of the Housing Act of 1949 (42 U.S.C. 1483, 1484).]
The Tenant does not substantiate why tenants living at properties receiving project-based Section 8 assistance should be treated differently than tenants residing in properties under the control of a public housing authority or redevelopment agency-even though they are required to include and follow the same lease provision. In fact, the HAP contract signed by this Landlord expressly states on the front page that it applies to a private owner or PHA (public housing authority) owner proj ect. (See Exhibit "Bn annexed to the Certification of Jeanine Crippen) .
In this case, the Landlord, like a public housing authority, is entirely federally funded and is directly under the supervision, control and management of HUD and must include the same lease provision in their leases as a PHA. Therefore, there is no real distinction between public housing, under the control of a public housing authority or redevelopment agency and property that is privately owned receiving project-based Section 8 assistance for lease violations pertaining to criminal activity.
Respectfully, the Appellate Division's rationale and decision in Oakwood is controlling and is the law of the State until reversed or overruled by the Supreme Court. State of N.J. v. B.T., 145 N.J. Super. 268 (App. Div. 1976) ; State v. Rembert, 156 N.J. Super. 203 (App. Div. 1978) . Consequently, this Court must apply Oakwood's holding to the facts of this case. Application of the literal language of e (2) would defeat the purpose of e (2) since the Property is fully funded and controlled by HUD.
B. The Property Is Entirely Federally Funded, Is Directly Under HUD's Control And Is Considered Public Housing Under e(2) A public housing authority is an independent entity that contracts as a principal with both the state and federal governments. Housing Authority of the City of Asbury Park v. Richardson, 346 F. Supp. 1027 (D.N.J. 1972)
Under the federal statutes, the federal government is able to grant funds to and vest authority in pUblic housing authorities in order for the public housing authority to administer low rent housing programs. Housing Authority of the City of Newark v. Sagner, 142 N.J. Super. 332, 342-343 (App. Div. 1976).
According to 42 U.S.C.A. §1437f(b) (1):
The Secretary is authorized to enter into annual contributions contracts with public housing agencies pursuant to which such agencies may enter into contracts to make assistance payments to owners of existing dwelling units in accordance with this section. In areas where no public housing agency has been organized or where the Secretary determines that a public housing agency is unable to implement the provisions of this section, the Secretary is authorized to enter into such contracts and to perform the other functions assigned to a public housing agency by this section. (Emphasis supplied)
As evidenced by the federal statutes, HUD can choose to independently enter into a Housing Assistance Payment Contract on its own or HUD can delegate that responsibility to a pUblic housing authority. In either case, the property has the same funding source and is subject to HUD controls.
In this case, HUD chose to administer the Section 8 program directly. The Landlord has entered into a Housing Assistance Payments Contract directly with HUD. The lease provision the Landlord is seeking to enforce is federally mandated and is identical to the lease provision that is statutorily required in public housing leases. There is absolutely no reason why this project should be treated any differently under subsection (e)2 than a project which is under the control of a public housing authority or redevelopment agency. In fact, this property should get more deference because it is funded, controlled, managed and supervised directly by HUD-which is a public entity.
It cannot be overlooked that the Landlord does not have grounds for eviction under N. J. S.A. 2A: 18-61.1 e (1) . This provision requires service of a Notice to Cease as a prerequisite to service of the Notice to Quit. Admittedly, no Notice to Cease was served in this case. If the Landlord pursued eviction in this case under that provision, it would not be enforcing the terms of the federally mandated lease provision and federal law since under federal law criminal activity is a grounds for termination of the lease.
In actuality, if subsection e(2) were applied literally in that property owned by a public housing authority (e.g. Jersey City Housing Authority or Jersey City Redevelopment Agency) could only rely upon e(2), properties receiving project-based section 8 assistance which are funded, administered and supervised by HUD could not evict tenants under e(2) for violating the federally mandated lease provision. Taken logically, if HUD owned property in its own name, it could not rely upon subsection e (2) of the Act. HUD would be unable to enforce its own policy at property it owns, insures and controls, as tenants in such properties (which are clearly considered public housing) could not be evicted. This is an absolutely absurd result and could not have been what the New Jersey Legislature intended when it enacted e(2).
POINT III
SINCE FEDERAL LAW MANDATES TERMINATION OF THE LEASE AS A RESULT OF CRIMINAL ACTIVITY ON THE LEASED PREMISES FEDERAL LAW PREEMPTS STATE LAW
This is a summary dispossess action which has been commenced based upon a federally mandated lease provision. Since federal law preempts state law, any conflict between the Anti-Eviction Act and federal law must be resolved according to federal law.
Federal law can preempt state law where the state law is in actual conflict with federal law. Franklin Tower One, One, L.L.C. v. N.M.,157 N.J. 602, 615 (1999) Conflict preemption occurs in two instances: (1) where compliance with both federal and state law is physically impossible; or (2) where a state law stands as an obstacle to the accomplishment and execution of the full purposes of the federal law. Id. at 615-616. Housing Authority & Urban Development Agency of the City of Atlantic City v. Taylor, 171 N.J. 580, (2002) When compliance with both federal and state law is impossible, state law is nullified to the extent of the conflict. Turner v. First Union National Bank, 162 N.J. 75, 88 (1999). The relevant inquiry is whether state law stands as an obstacle to the accomplishment of a federal objective. Taylor, 171 N. J. at 587.