Wednesday, August 25, 2010

housing - sec. 8 - non-payment of rent not a per se "serious violation" of lease

Gray v. Allegheny Co. Housing Authority - Cmwlth. Court - August 25, 2010 - unpublished memorandum opinion

There was an administrative grievance hearing, at which it was found that the sec. 8 tenant had committed a "serious violation" of the lease under 24 CFR 982.552(b)(2) by failing to pay rent and suffering an MDJ judgment of eviction. At that hearing, tenant testified that he had paid judgment rent to the landlord and thus satisfied the judgment, which was a "pay and stay" judgment under
MDJ Rule 518.

The tenant then appealed to the court of common pleas, which reversed, holding that the HA hearing officer had erred by concluding that non-payment of rent was a per se "serious violation" of the lease. The court agreed, rejecting the HA's argument that non-payment is rent is always a "serious violation." "The trial court was correct that the hearing officer wrongly applied Section 982.552(b)(2) in holding that an eviction, ipso facto, established a serious lease violation." It found that the HA should have examined the reason for non-payment, stating that "[w]hat is absent from the record in this case, however, is why [the tenant], who had apparently paid his rent in a timely fashion for one year, failed to make one payment and continued not to pay until after he was evicted."

The court also noted that the MDJ entered a pay-and-stay judgment, which tenant could have paid right away but did not, because the landlord wouldn't accept payment and insisted that tenant vacate the property. If true, [tenant's] nonpayment of rent was a harm of the landlord’s making and should not be relevant to [tenant's] eligibility for assistance. Such undue influence, if true, was particularly improper with respect to a tenant who suffered a mental impairment. The record is also absent of evidence about [tenant's] monthly rental history, such as which month he missed his rent payment or by how much. All these facts are relevant to whether [tenant] failed to pay rent."

Ultimately, the court held that "[i]n short, the record is incomplete on the dispositive issue of whether [the tenant] committed a serious violation of the lease. See Cain v. Allegheny County Housing Authority, 986 A.2d 947, 952 (Pa. Cmwlth. 2009) (incomplete record is one that lacks sufficient evidence for an appellate court to rule on the question presented).


There is a lot of good stuff in this opinion. I think that we should consider asking the court to order its publication, so that it can be cited in the future. Please let me know if you agree or not. The opinion cannot be cited, Reporting of Opinions; Certain Decisions not to be Cited. Unreported opinions of this court shall not be cited in any opinion of this court or in any brief or argument addressed to it. . . . "