Opinion
No. NHSP-093937
August 19, 2008
MEMORANDUM OF DECISION
This is a Motion to Dismiss. The plaintiff brought this summary process (eviction) action in two counts. In Count one, the plaintiff alleged the following: "1) the defendant, Trenna Soares, is the only adult authorized to reside in the subject premises and is expressly not to allow unauthorized occupants to reside at the subject premises. 2) She failed to report to the plaintiff any change in family composition. 3) Allowed unauthorized tenants to move into the unit. 4) Allowed long term guests to move to the premises."
On March 5, 2008, the plaintiff had the defendant served with a pre-termination notice. The notice specified violation of nine subsections of Section 6 — Tenants' Obligations. Subsection MM stated the reasons for termination of the lease as follows:
Attachment #1 — the pre-termination notice.
"you are allegedly in violation of each of these provisions because you allowed individuals not named in the lease to reside in your apartment specifically Charles Glenn, a.k.a., Charlie Rock and Jane Doe. Charlie Rock was recently evicted from another HANH property. Further on October 5, 2007 Officer Young of the New Haven Police Department reported that Mr. Glenn sated (sic) he was renting from Ms. Soares and pays her $200 cash and $100 in food stamps each month. The apartment is in disarray and drug paraphernalia was on the floor."
The notice also included violations of six subsections of Section 10(B) Termination of the lease — Termination by HANH. The notice further specified the following: "you are allegedly in violation of each of these provisions of your lease because you allowed individuals not named in your lease to reside in your apartment specifically and further these individuals made rent payments to you which was admitted to the New Haven Police Department. Further the apartment was in disarray with drug paraphernalia on the floor."
The pre-termination notice further notified the defendant that, if she wanted to contest the claim, she had the right to discuss the matter at an informal conference and should contact the grievance coordinator within fourteen days of receiving the letter. The defendant was also informed that if she were not satisfied she may request an informal hearing before an impartial person in accordance with the grievance provisions of ACOP. The plaintiff also informed the defendant that, if she could remedy the violations within fifteen days, no further action would be taken. If she could not, the rental agreement would terminate in no less than thirty days.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.)Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The defendant has moved to dismiss this action on the grounds that the pre-termination notice failed to comply with 42 U.S.C. § 1437d(k). Specifically, the plaintiff notified the defendant that she had fourteen days to contest the claim and the regulations required thirty days. The plaintiff argued that only fourteen days were required and the requirement of thirty days referred to the time in which it could terminate the lease and not the time to access the grievance process.
24 C.F.R. § 966.50 et seq. establishes the grievance procedures and requirements to be implemented by public housing agencies (PHA). The plaintiff is a PHA. Section 966.54 describes the procedure for the informal settlement without a hearing. If the defendant is not satisfied with the outcome of that informal process, § 966.55 requires the the tenant to request, in writing, a hearing within a reasonable time after receiving the summary from the informal discussion.
The issue, then, is what is a reasonable time in which to request a hearing. 42 U.S.C. § 1437d(k) outlines the Administrative Grievance procedure regulations for a hearing. This includes the opportunity for a hearing before an impartial party upon timely request within any period applicable under subsection (L).
42 U.S.C. § 1437d(k)(1) governs leases: terms and conditions; maintenance; termination. Section 1437d(k)(1)(4) requires the PHA to give adequate written notice of termination. This shall be a reasonable period of time a) not to exceed thirty days if the health or safety of the other tenants is threatened, b) fourteen days in the case of non-payment of rent and c) thirty days in any other case unless state or local law provides a shorter period.
In this case, the plaintiff makes no claim that the health or safety of the other tenants was threatened or that the defendant failed to pay rent. The claims made by the plaintiff therefore fall under "any other case". The plaintiff gave the defendant fourteen days to request a hearing and fifteen days to cure the violations. However, in this case, the plaintiff is required to provide thirty days to access the grievance process.
The defendant, in support of its motion, referenced Housing Authority of City of Danville v. Love, 375 Ill. App.3d 508, 874 N.E.2d 893, 314 Ill. Dec. 528 (2007). In that case, the PHA, in its lease provided notice of the grievance process as follows: ten days for informal discussion, five days to deliver the summary and five days to request a hearing. The court found that the ten days to the informal discussion conflicted with 42 U.S.C. § 1437, which requires thirty days, unless state or local law provided less.
In this case, the defendant challenged the pre-termination notice(which was not part of the lease). Since 42 U.S.C. § 1437d(k)(2)(1) governs the grievance process and no state or local law provided less, the plaintiff should have notified the defendant that she had thirty days to request a hearing rather than fourteen days.
The time will vary according to the plaintiffs claim.
". . . Before a landlord may pursue its statutory remedy of summary process . . ., the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease." Jefferson Gardens Associates v. Greene, 202 Conn. 128, 143 (1987). In this case, the plaintiff landlord failed to comply with federal law, specifically 42 U.S.C. § 1437d(k)(2)(1).
Accordingly, the motion to dismiss is granted.
Dear Ms. Soares,
You are hereby notified that you are allegedly in violation of your dwelling lease in that you have materially failed to comply with the following provisions of that lease and the rules and regulations concerning your use and occupancy of the premises, as is more specifically set forth below.
I
A. Section 6. Tenant's Obligations:
"The tenant(s), Household Member(s). guest(s) and person(s) under the Tenant(s) control must follow the following requirements:
F) Use the unit only as a residence for those listed in the Lease.
G) Inform HANH within 10 days of any change in family composition or income.
I) Not allow occupancy to long-term guests (in excess of 14 days per year) without the advance written consent of HANH.
CC) Make sure that Tenant(s), member(s) of the household, guest(s), or other person(s) under the Tenant(s) control do not engage and will not engage in any activity on or near HANH property which threatens the health safety or right to peaceful enjoyment of any HANH property by other tenant(s) or HANH employees . . .
DD) Make sure that Tenant(s), member(s) of the household, guest(s), or other person(s) under the Tenant(s)'s control do not and will not engage in any drug related criminal activity or any activity that threatens the health, safety, and right to peaceful enjoyment of other residents.
FF) Report to the Asset Manager, in writing, any person residing in or visiting the Unit that the Tenant(s) cannot supervise or control. If a Tenant knows of such a person and fails to make such a report, then this failure will be a waiver by the Tenant(s) of lack of knowledge of the acts of such person as a defense to any eviction action by HANH.
GG) Not assign or sublease the premises or provide accommodation for boarders or lodgers.
HH) Abide by necessary and reasonable rules made by HANH for the benefit and well being of the housing development and the tenants.
MM) Ensure that all household members (and guests, where applicable) avoid prohibited activities, including those specified in Section 10(B) (d), Reasons for termination of the lease."
You are allegedly in violation of each of these provisions because you allowed individuals not named in the lease to reside in your apartment, specifically Charles Glenn a.k.a. Charlie Rock and Jane Doe. Charlie Rock was recently evicted from another HANH property. Further on October 5, 2007 Officer Young of the New Haven Police Department, reported that Mr. Glenn sated he was renting form Ms. Soares and pays her $200 cash and $100 in food stamps each month. The apartment was in disarray and drug paraphernalia was on the floor.
B. Section 10 (B) Termination of the lease-Termination by HANH
(d) Reasons for Termination The lease may be terminated by the PHA at any time by giving written notice for violation of material terms of the lease, including but not limited to:
(5) Failure to fulfill Tenant(s) obligations in the lease, the ACOP, and other HANh rules, regulations or addenda to the lease.
(6) Knowingly permitting an ineligible individual to reside in the family's unit on a permanent basis, for which the family's lease will be terminated and the family will not be eligible for assistance for 24 months.
(19) Assignment or subleasing of the premises or providing accommodations for boarders or lodgers.
(28) Failure to abide by necessary and reasonable rules made by the PHA for the benefit and well being of the housing project and the Tenants.
(29) Drug related or criminal activity, including:
(b) Drug-related criminal activity on the premises by any other person under the control of the tenant.
(c) Drug-related criminal activity on the premises by any other person under the control of the Tenant.
(d) Any criminal activity by the Tenant, any household member, or visitor of the Tenant, that threatened the health, safety, and the right to peaceful enjoyment of the premises by other residents, or that threatens the health, safety, and right to peaceful enjoyment of their residence by other residents residing in the immediate vicinity of the premises.
(g) Illegal use, or a pattern of illegal use, by a tenant or any household member of a drug that interferes with the health, safety or peaceful enjoyment of the residents, (29) (page 12) Other material noncompliance with the terms of this Lease, including Tenant Obligations, the ACOP, or other HANH regulations.
The term" material noncompliance" includes:
• One or more substantial violations of the lease and regulations:
• Repeated minor violations of the lease and regulations that (a) disrupt the livability of the project: (b) adversely affect the health or safety of any person or the right of any tenant to quiet enjoyment to the leased premises and related project facilities: (c) interfere with the management of the project, or (d) have an adverse financial effect on the project."
You are allegedly in violation of each of these provisions of your lease because you allowed individuals not named in your lease to reside in your apartment, specifically and further these individuals made rent payments to you which was admitted to the New Haven Police Department. Further the apartment was in disarray with drug paraphernalia on the floor.
If you wish to contest this claim regarding your lease violations, you have the right to discuss this matter at a discuss an informal conference, with HANH, however you must contact Melissa Mathews, grievance coordinator, in person or by writing to HANH's main office at 360 Orange Street, New Haven, CT 06511, by telephone at (203) 498-8800 ext. 1118 within fourteen days of receipt of this letter. If this matter is not resolved to your satisfaction, you may request an informal hearing before an impartial person in accordance with the grievance provisions of the ACOP.
If you do not timely request a grievance informal conference or informal hearing, or if the requested grievance conference is resolved against you, an immediate action to recover possession of the premises may be commenced by the HANH based on the allegations as set forth above. A notice to quit terminating your tenancy will precede any such action.
II.
You have the right, should you so request, to examine documents in the Landlord's passion concerning the termination of tenant or eviction. In the event that you want copies of such documents, you must notify HANH and you will be allowed to copy such documents at your expense.
If the above noted violations can be and are remedied by repair or payment of damages on your part within fifteen (15) days of this notice, no action will be taken
against you based on these violations, if however, the above noted violations can not be or are not remedied within that fifteen (15) day period, your rental agreement shall terminate on a date not less than thirty (30) days after you receive this notice, which date will be set forth with particularity in a Notice to Quit.
In the event that judicial proceedings for your eviction are instituted, you will be entitled to present any defense that you may have under the laws of the state of Connecticut.
Sincerely,
Kathryn R. Sylvester
Special Assistant to the Executive Director for Legal Affairs
Housing Authority of the City of New Haven