Housing Authority must exercise discretion in eviction


Real estate cases can be sad, and this is one of those. City of Charleston Housing Authority v. Brown* Involved the eviction of a mother from a public housing apartment because her son committed a crime.

The facts, according to the Court, are not in dispute. Katrina Brown renewed her lease with CHA in 2015. Brown’s minor son and daughter were listed as residents and members of her household. Early in 2016, Brown’s son, who was 17 at the time, was arrested a mile away from his home carrying a gun. Two weeks later, CHA sent an official 30-day notice of eviction to Brown. The notice informed Brown that her eviction was based on the lease’s prohibition against violent criminal behavior.

At the magistrate’s hearing, a Charleston detective testified that Brown’s son confessed to an attempted armed robbery that occurred two days before his arrest and approximately one mile from the housing complex. Brown testified that her son was being held in jail, and if he was able to make bond, he would live with his grandmother.

The magistrate found that evictions based on criminal activity provisions of housing lease agreements must be determined on a case-by-case basis and denied the application for eviction based on the testimony as well as factors from federal law.  On appeal, the circuit court remanded the case for factual findings and analysis regarding whether Brown’s eviction was warranted under 42 U.S.C. §1437(1)(6), the federal statute governing public housing leases, which is colloquially known as the “One-Strike Rule.”

The “One-Strike Rule” requires federally-funded public housing authorities and private landlords renting their properties to tenants receiving federal housing assistance to include a provision in all leases stating that drug-related criminal activity, as well as criminal activity that threatens other tenants or nearby residents, are grounds for eviction, regardless of the tenant’s personal knowledge of the criminal activity. The strict-liability, no-fault rule was premised on the idea that public housing tenants are entitled to homes that are “decent, safe, and free from illegal drugs.

In May of 2017, the magistrate issued an order evicting Brown, finding her son’s actions created good cause for eviction. At an appeal hearing before the circuit court, Brown argued that non-drug related criminal activity can only be grounds for eviction if the activity constitutes a present threat to the residents of the public housing facility and occurred in the immediate vicinity of the facility. She also argued that CHA was required to demonstrate that they used discretion in evaluating the circumstances and alternatives to eviction of an innocent tenant before evicting the entire household. She asserted that CHA made no showing that it exercised discretion.

The circuit court affirmed Brown’s eviction. The Court of Appeals found that Brown’s son’s actions created good cause for the eviction. The Court cited a 2007 Massachusetts case that set out the policy reason for the “One-Strike Rule”: Tenants of public housing developments represent some of the most needy and vulnerable segments of our population, including low-income families, children, the elderly, and the handicapped. It should not be their fate, to the extent manifestly possible, to live in fear of their neighbors.

The Court further held that the threat need not be “ongoing” to justify eviction. Then the Court turned to an interesting aspect of federal law, holding the “One-Strike Rule” does not automatically require eviction. Rather, the housing authority must demonstrate that it exercises discretion in the decision to evict. The record must reflect that the housing authority knew it could refrain from invoking the “One-Strike Rule” under the circumstances.

The case was remanded to the magistrate for a hearing to determine whether CHA exercised discretion in deciding to pursue the eviction of Brown’s entire household for the criminal actions of her son.

I’m sure you understand what I mean about this case being sad. It is sad for the mother to be evicted for the actions of her son, and it is sad for the other residents of the facility to be subjected to such criminal activity. This is a difficult situation, and I’m encouraged to know that discretion must be exercised.

*South Carolina Court of Appeals Opinion No. 5941 (August 24, 2022)