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Federally Subsidized Public-Housing Agencies Are Required To Provide “Decent and Safe Dwellings” For Every Tenant

In Cincinnati Metro. Hous. Auth. v. Brown, 2013-Ohio-4143, Ohio’s First District Court of Appeals held that the Cincinnati Metropolitan Housing Authority (“CMHA”) was entitled to evict a tenant based on activities that threatened the health, safety, or right to peaceful enjoyment of other tenants.

Previously, the tenant threatened and yelled racially derogatory names at a fellow tenant.  The tenant was charged with menacing and ethnic intimidation.  She pled guilty to disorderly conduct.  CMHA investigated and found that tenant was a direct threat to other residents and served her a notice to vacate.

The tenant asked for a reasonable accommodation for her disabilities[1] and requested the eviction be dismissed and that CMHA participate in a behavioral-intervention plan that included contact with her “case manager and/or therapist if concerns related to her tenancy arose in the future.”  CMHA denied her request and the tenant filed an amended answer to raise a counterclaim which asserted that CMHA discriminated against her due to her disabilities.

The federal Fair Housing Amendments Act (“the FHAA”) makes it “unlawful to discriminate against a tenant on the basis of that person’s mental or physical disability.”  See 42 U.S.C. 3604(f).  However, federally subsidized public-housing agencies like CMHA are required to provide “decent and safe dwellings” for every tenant.  See 42 U.S.C. 1437(a)(1)(A).  The FHAA require:

Each public housing agency shall utilize leases which * * * provide 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.

 

42 U.S.C. 1437(d)(1)(6).

The United States Supreme Court has held that 42 U.S.C. 1437(d)(1)(6) “unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members * * *.” Dept. of Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130.

When making the decision to evict a tenant in public housing, the agency is in the best position to determine the “seriousness of the offending action, the duration of the problem, the administrative burden on the housing authority, and the extent to which the tenant has taken reasonable steps to prevent or mitigate the offending action.”  See Id. at 134. 

            The tenant believed she was entitled to a reasonable accommodation, however, the FHAA advises that public housing agencies should grant reasonable accommodation requests “when the tenant’s attorney provides satisfactory assurances that the [tenant] will receive appropriate counseling and periodic medication monitoring.”  See Joint Statement of the Dept. of Housing and Urban Dev. and the Dept. of Justice, Reasonable Accommodations Under the Fair Housing Act 5-6 (May 17, 2004).  The FHAA does not require the public housing provider to automatically accommodate a tenant who may harm other tenants.  In fact, Congress has made it clear that “housing need not be made available to persons whose impairments make them dangerous to others.”  Schwemm & Allen, For the Rest of Their Lives: Seniors and the Fair Housing Act, 90 Iowa L.Rev. 121, 161-162 (2004).

Here, because CMHA had a legitimate interest in ensuring the safety and quiet enjoyment of all of its tenants, it had the right to evict the tenant.


[1] The tenant suffered from bipolar and panic disorders, along with multiple physical disabilities which affected her mobility.

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