SEMIANNUAL REVIEW OF CASE LAW AFFECTING AFFORDABLE PUBLIC

SEMI-ANNUAL REVIEW OF CASE LAW AFFECTING AFFORDABLE & PUBLIC HOUSING LESSONS LEARNED Compiled by Lisa L. Walker HDLI Executive Director & General Counsel October 2009

BANKRUPTCY LESSON LEARNED LESSON 1 v Cease adverse actions against tenants who file for bankruptcy protection: PHA could violate the nondiscrimination provisions of the Bankruptcy code if they continue evictions. Hous. Auth. of New Orleans v. Eason (La. ) p. 1

GRIEVANCES LESSON LEARNED LESSON 2 Grievance panel cannot include employees who participated in prior action against tenant, or their subordinants: Violates due process. v Costa v. Fall River Hous. Auth. , 903 N. E. 2 d 1098 (Mass. ) p. 4 1 of 4

GRIEVANCES LESSON LEARNED LESSON 3 Hearing officer/grievance panel cannot rely on uncorroborated hearsay, such as newspaper articles: Violates due process. Need a witness to corroborate story. Some courts also do not allow in police reports for same reason. v Costa v. Fall River Hous. Auth. , 903 N. E. 2 d 1098 (Mass. ) p. 4 2 of 4

GRIEVANCES LESSON LEARNED LESSON 4 “Criminal activity” is not solely limited to activity that is “drug related” or “violent. ” Criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents/neighbors also counts. v Costa v. Fall River Hous. Auth. , 903 N. E. 2 d 1098 (Mass. ) p. 8 3 of 4

GRIEVANCES LESSON LEARNED LESSON 5 v Grievance decision must state factual findings of the specific criminal acts. Bald statements or mere references to “criminal activity” will not suffice. Costa v. Fall River Hous. Auth. , 903 N. E. 2 d 1098 (Mass. ) p. 4 4 of 4

DISABILITIES LESSON LEARNED LESSON 6 v Section 8 administrators, like PHAs, are not liable for discrimination caused by Section 8 landlords: Unless administrator discriminates in its administration of the program, such as by ignoring participant’s claims of discrimination. Dinapoli v. DPA Wallace Ave. II, LLC (N. Y. ) p. 8 1 of 4

DISABILITIES LESSON LEARNED LESSON 7 v Making “reasonable accommodations” means changing your usual rules of way of doing business to accommodate the needs of disabled residents: Both landlords and PHAs have to be reasonable in changing their rules to be accommodating. Dinapoli v. DPA Wallace Ave. II, LLC (N. Y. ) p. 8 2 of 4

DISABILITIES LESSON LEARNED LESSON 8 v You can consider the criminal history of disabled residents in determining eligibility: Accommodating the applicant’s criminal history is not equivalent to accommodating their disabilities. However, must always consider whether a RA will eliminate any risk posed by the prior behavior. Evans v. UDR Inc. (N. C. ) p. 10 3 of 4

DISABILITIES LESSON LEARNED LESSON 9 v Imposing an “independent living” requirement violates Fair Housing: Cannot make housing eligibility determinations based upon the nature and characteristic of one’s disabilities. Laflamme v. New Horizons (Conn. ) p. 14 4 of 4

LEP LESSON LEARNED LESSON 10 ØPHAs have a responsibility to ensure that clients with language barriers fully understand our rules and processes: Must ensure that a true “interpreter” is present, if necessary. Make sure that parties document presence of an “interpreter. ” Hassan v. Dakota County Cmty. Dev. Agency (Minn. ) p. 23

EVICTIONS LESSON LEARNED LESSON 11 Ø HUD v. Rucker’s “One Strike” strict liability flows from the lease and only applies to evictions brought under the lease. Eviction actions brought under statutory, and not lease, violations may not be preempted by Rucker. To invoke Rucker preemption, be careful how you bring your eviction cases. Frame them in terms of lease violations. New York City Hous. Auth. v. Lipscomb-Arroyo (NY) p. 28 2 of 2

SECTION 3 LESSON LEARNED LESSON 12 ØHUD has no authority to compel a monetary payment to Section 3 companies/residents: HUD can only include them in VOLUNTARY compliance agreements. Mannarino v. HUD (Pa) p. 27