Appendix — Thorpe v. Housing Authority of Durham

Supreme Court brief1969

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a APPENDIX 1 ie hen eee Med

Excerpts from the United States Housing ‘Act of 1987 \ Saree.

A2 U.S.C; § 1401 et seq. - :

z 5 1401. ‘Declaration of policy

It is declared to be the policy, of the: United States to

_ promote the general welfare of the Nation by employing

" its funds and credit, as provided in this chapter, to assist

the several States and their political subdivisions to alle-

viate present and recurring unemployment and to remedy

the unsafe and insanitary housing conditions and the acute, -

shortage of decent, safe, and sanitary dwellings for families |

of low income, in urban and rural nonfarm areas, that are _- -

' injurious to. the health, safety, and morals of the citizens |

of the‘ Nation. In the development of low-rent housing it.

shall be the policy of the United States to make adequate

provision for larger‘families and for families consisting of: = -—*

; elderly persons. It is the policy of the Uniteds States to

. vest in the local public: housing agencies the maximum

amount of responsibility i in the administration of the low-

rent housing program, including responsibility for the

establishment of rents and eligibility requirements (subject | as

to the approval of the _Authority), with due consideration |

to accomplishing the objectives of this chapter while effect-

ing economies. . Sept. 1, 1937, c. 896, §1, 50 Stat. 888;

_ July 15, 1949, ¢. 338, ‘Title ITI, § 30¥(a), 63 Stat. 429;

Sept. 23, 1959, Pub.L. 86-372, Title V, § 501, 73 Stat.. 679.

8 1404e. Public Housing Administration; right to sue; em-

ra.t > | ployment of personnel; delegation of pene .

a rules and regulations; expenses

The Public Housing Administration shall sue dnd bev

sued only with: — to its functions under this chapter,

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/ .

Excerpts from the United States Housing Ach of 1937

and sections 1501-1505 of this title. The Public cue

Commissioner may appoint such ‘officers. and employees as

he may find necessary, which. appointments, notwithstand-.

_ ing the provisions of any ‘other law, after August .10; 1948,

shall. be made under this ‘section, and shall be subject to

. the civil-service ‘laws and the Classification Act of 1949,

_-as amended; delegate any of ‘his functions and powers to

_ such officers, agents, or employees of the Public Housing

Administration as he may designate ; and make such rules

and regulations as he may find necessary to carry out his.

functions, ‘powers, and duties. Funds made available for

carrying out the functions, powers, and duties of the Ad-

ministration (including appropriations therefor, which are *

authorized) shall be available, in: such amounts as may

from year ‘to yefr be authorized by ‘the Congress, for the —

administrative expenses of the Administration. Notwith-

standing any other~provisions of law except, proyisions of

law enacted after-August 10, 1948 expressly in limitation

hereof, the Public Housing Administration, or any State »

or local public agency administering a low-rent housing

project assisted pursuant to this chapter or sections 1501- _- < 5

a 1505 of this title, shall continue to: have the right to main- as

tain an action or proceeding to recover possession of any

housing accommodations operated by it where such action

‘is-authorized by the statute or regulations under which

such housing ‘accommodations are administered, and, in

determining net income:for the purposes of tenant eligibil-

ity with respect to low-rent housing projects assisted pur-

suant to this chapter and sections 1501-1505 of this title,

the Public Housing Administration is authorizéd, where .

it finds such action equitable and in the public interest,

_ . ‘to exclude: —— or Portions thereof 'Paid by the \United

,. Me cs

searte from the United States a Act of 1937.

States . Government for disability or death occurring in |

- connection with military service. Aug. 10, 1948, c. 832,

_ Title V, § 502(b), 62 Stat. 1284; Oct. 28, im, c. 782, Title

get XI, §1106(a), 63 Stat. 972. ,

§ 1408. Same; rules and: raguiatiqnie

The Administration may from time to time make, amend,

and rescind such rules and regulations as may be necessary |

to carry out ‘the provisions of this chapter. Sept..1, 1937,

c. 896, § 8, 50 Stat. 891; 1947 Reorg.Plan No. 3, $$1, 4(a),

9 eff. oy 27, 1947, 18 FR. 4981, 6] Stat. 954. .

§ 1410. ‘humael ccntatiailens in assistance. of low Senibllipess ;

Authorization |

Maximum Income Limits; ApMIssiOn PoLicres

ea 4 (g) Every contract for annual contributions for any low-

rent housing. project shall provide that-—.

(i 1) the maximum i income limits fixed by the public hous- |

ing agency shall be subject to the prior approval of the

»—. .", Administration and the Administration may require the

agency to review and revise such limits if the Administra-

tion determines that changed conditions in the locality make

such revisions necessary in achieving the purposes + the’

chapter;

(2) the public housing agency shall iaies sid poniet. |

gate regulations establishing admission policies which shall -

give full consideration to its responsibility for the rehous- -

ing of displaced, families, to the.‘applicant’s status as a

serviceman or veteran or relationship to a serviceman or

véteran Sr to » disabled serviceman or veteran, and to the

applicant’s age or disability, housing conditions, urgency '

j Escerpts hii the United States Housing Act of 1987

' of housiig need, and source of income : ‘Provided, That in-

establishing such admission policies the public housing

“agency shall accord to families of low income such priority

over single persons as it determines to be necessary to

avoid undue hardship; and ie

(3) the public housing agency shall determine, and so

certify to the Administration, that each family in the

project was admitted in accordance with duly adopted ©

regulations: and approved income limitg; and the public

housing agency shall make periodic reexaminations of the —

incomes of families living in the project and shall réquire

any family whose income has increased beyond the ap-

proved maximum income limits for continued occupancy —

_ to move from the project unless the public housing agency

‘determines that, due to special circumstances, the family

‘is unable to find decent, safe and sanitary housing within ©

its financial reach although making every reasonable effort

to do so,.in which-event such family may be permitted to

remain for the duration of such a situation if it pays an

. imereased rent consistent with such family’s increased in- ~

come. Sept. 1, 1937, c. 896, §10, 50 Stat. 891; June 21,

1938, c. 554, Title VI, §601, 52 Stat. 820; 1947 Rebrg. Plan

No. 3,-4§1, 4(a), 9, eff. July 27, 1947, 12 F.R. 498, 61 Stat.

954; July 15, 1949, c. 338, Title IIT, -§§302(a), 304(a), (c),

(e), (£), 305, 307(d), 63 Stat. 423-426, 430; Ang. 2, 1954,

c. 649, Title IV, §§401 (1), (2), 402, 403, 405, 406, 68 Stat.

630; June 30, 1955, ¢. 251, §3, 69 Stat. 225; Aug. 11, 1955, |

c. 783, Title I, §108(b), 69 Stat. 638; Aug. 7, 1956, c. 1029,

Title IV, §§401(a), 404(b), 70 Stat, 1103, 1104° As amended <

Sept. 23, 1959, Pub.L. 86-372, Title 4 $§505(a), 507, 73

Stat. 680, 681; June 30, 1961, Pub.L. 87-70, Title II, §§203,. .

- 204(a), (b), 205, 206(b); (c), 75 Stat. 163, 164, 165. ~

_ eee

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Ezcerpte from the United States Housing Act si 1937

a 1415. Preservation of low rents —. :

In order to insure that the low-rent character of housing

B ojects will be. preserved, and thet the other purposes. of

—— will be achieved, it is provided that—

i e's. »

“Looat ResPponstBiLiriEs ; AND DETERMix tions

(7) In recognition that there should be local daternsins. :

tion of the need for low-rent ‘housing to meet needs not

: being adequately met by private enterprise— _

(a) The Administration shall not make any ehibiogat

with a public housing agency for preliminary loans .

(all of which shall be repaid out of any moneys whieh

become available to such agency for the development -

of the projects involved) for surveys and planning i in

- respect to any low-rent, Housing projects initiated after .

March 1, 1949, (i) unless the governing body of the

locality involved has by resolution approved the: ap-

_ plication of the’ public housing agency for such pre-

liminary loan; and (ii) unless the public housing -

agency has demonstrated to’ the satisfaction of the

- Administration that there i#a need for-such low-rerit

housing which is, not a mee ” private enterprise; ;

and» |

- for loans (otherthan preliminary loans) or for annual

‘contributiens pursuant to this chapter with reépect to

- any low-rent housing project initiated after March 1,

1949, (i) unless-the governing body of the locality in- .

» volved has entered into an agreemest, with the public

housing agency providing for the loca, cooperation — |

required by the Administration’ pursuant to This chap- ©

ter; ( ii) unless the poblig Mousing er has demon

(b) The Administration shall not weil any ‘Sadiing

P 6a . ec eal

° > +s

Excerpts from the. United States Housing Act of 1987

scehid to the apitietection | of the Adinielatretinn that

a gap of at least 20 per centum (except in the case of

on: displaced family or an elderly family) hag-been left

. {> between: the upper rental limits for admission to the-

3 proposed low-rent housing and the lowest rents at

which private enterprise unaided by -public subsidy i is

.* providing (through new construction and available ex- .

_ isting structures) a: substantial supply of‘ decent, safe, ©

‘and sanitary housing toward meeting the need #f an.

adequate volume thereof; and. (iii) unless the public *

housing agency has demonstrated to the satisfaction

of the Administration thet there is a feasible method

’ for the tegiporary relocation of the individuals and

families displaced from the project site, and that there

are‘ or are being provided, in the project area or in- :

other areas not generally less desirable in regard to ~

public utilities and public and commercial facilities and

at rents or prices within the financial means of such

individuals and families, decent, ‘safe, and sanitary

dwellings equal i in number to the n ber of and avail-

able to such jndividuals and families and reasonably

accessible to. their places of employment.

e e@ ee , ; *

> Sept. 1, 1937; ‘e. 896, $15, 50 Stat. 895 ; 1947 Reorg.

Plan No. 3, $§1, 4(a), 9, eff. Julp.97, 1947, 12 F.R.

4981, 61 Stat. 954; July 31, 1947, c. 418,41, 61 Stat.

904; July 15, 1949, ; Title III, $§301, 303, 304(j),

63 Stat. 422, 424, 497; ‘Aug. 2, 1954, c. 649, Title FV,

(MOLE), (4), 68 Stat. 631; Aug. 7, 1956, c. 1029, Title

IV, §404(c), 70 Stat. 1104. As amended July 12, 1957,

Pub.L. 85-104, Title IV, §401(b) (c), 71 Stat. 302;

Sept. 23, 1959,-Pub.L.”86-372, Title V, §§503(b),.506, _ *

73 Stat. 680; June 30,-1961, Pub.L. 87-70, Title II,

§§204(b),°205(b), 206(a), 75 Stat. 164,165. — / ‘

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- Excerpts fret the United fates ‘Housing ‘Act of 1987 :

$1484. Records; natiaibiis siesta and audit =

Every contract between the Housing and Home Finance

“Agency (or. any official or constituent thereof ). and any

person or local. body: (including any corporation or public

" or private agency or body) for a loan, advance, ‘grant, or

* contribution under this chapter, the Hbusing Act of. asks, y *

. as amended, or,any other Act. shall provide that such

person. or local body shall keep such records ‘as the Hous-

.. ing and Home Finance Agency (or. such official’or con-- ¢ |

stituent thereof}*shall from time to tinfe presaribe, in- - “°

- eluding records which permit a speedy and-effective audit - |

and will fully disclose ‘the amount.and the disyositior’ -

‘by such person or local body of the proceeds of the loau, .

advance, grant, or contribution, or any supplement there- ' .9

to, the capital cost of any construcfion, projeet, for which -

_ any such loan, advance, grant, ,or contribution is made,

_ and the amount. ‘of qny private or other non-Federal funds « 0

used or grants-in-aid made for or in connection with any

_ Such jprojeet.. No mortgage covering new or rehabilitated —

multifamily housing (as defined in sectivn-1715r of Title -

12) shall be insured unless the moétgagor certifies that

he will keep such records as are prescribed by the Fed- —

eral Housing Commissioner at the time of the ‘certifica- -

tion and that they will be kept in such, form as to permit.

a speedy and effective audit. The Housing and Home ©

Finance Agency or any Official or constituent, agency there-

. <2 e ComptrollemGeneral of the United States shall

. bave access to and the right: tagexartine and audit such

‘records. This section shall become effective on the fret’

4s day after the first full calendar month following the date

of approval of the Housing Act of 1961. Aug. 2, 1954, c.

, * 649, Title WIII, (814, 68 Stati 647. As amended June 30, -

; 1961, Pub.L. 87-70, Title Ix, $908, 75 —_ 191:

APPENDIX II

- Excerpts from the North Carolina

“Housing Authorities Law”

eo Stats. of North ‘Carolina, s 157-1 et bees

§ 157-2. Finding aa declaration . of eeneity

It is hereby declared that unsanitary ‘or unsafe dwelling

accommodations exist in urban and rural areas throughout

the -State and that such unsafe or unsanitary conditions

arise from overcrowding and concentration of population,

the obsolete and poor condition of the buildings, improper

planning, excessive land coverage, lack of proper light, air ©

and space, unsanitary design and arrangement, lack of

proper, sanitary facilities, and the existence of conditions _

which endanger life or property by fire and other causes;

that in such urban and rural areas many persons of. low

income are forced to’reside in unsanitary or unsafe dwell-

‘ ing accommodations; that in such urban and rural areas

there is a lack of safe or sanitary dwelling accommodations

available to all the inhabitants thereof and. that conse-

quently many persons of low income are forced to occupy

overcrowded and congested dw elling accommodations ;. that

these gonditions cause an increase in and spread of disease

and crime and constitute a menace to thé health, safety,

morals and welfare of the citizens of. the State and impair

economic values; that these conditions cannot be remedied:

by the ordinary operation Jf private enterprise; that. the

clearance, replanning and reconstruction of such areas and ;

the providing of safe and sanitary dwelling accommoda-

‘tions for persons of low. income are public uses and pur-

poses for which public money may be spent and private

property acquired; that it is in the public interest that

__ work:on such projects be instituted as soon as possible;

and that the necessity for the provisions hereinafter en- .

acted is,’ “hereby declared as a matter of se | deter-

‘ e

Excerpts from the North Carolina

| “Housing Authority Law” _

mination to be in the public interest. (1935, c. 456, 8. 2; 1938,

Ex. Sess., c. 2, 8. 14; 1941, c. 78, s. 2.)

§ 157-4; Notice, hearing and creation of authority; can-

cellation of certificate of incorporation |

' Any twenty-five residents of a city and of the area

_ within ten miles from the territorial boundaries thereof

may file a petition with the city clerk settipg forth that

there is a need for an authority to function in the city

and said surrounding area. ;Upon the filing of such. a peti-

tion the city clerk shall give notice of the time, place and

purposes of a public’hearing at which the council will de- *.

termine the need ‘for an authority in the city and said

_ surrounding area. Such‘ notice shall be given at the city’s |

expense by publishing a notice, at least ten days preceding

the -day on which the hearing is. to be held, in a news-

paper having a general circulation in the city and said

surrounding area, or, if there be no such newspaper, by

posting such notice in at least three public places within.

’ the city, at least ten days preceding the day. on which the |

hearing is to be held. ; |

Upon tlie date fixed for said hearing held vpon notice

as provided herein, an opportunity to be heard shall be:

granted to all residents and taxpafers of the city and said

surrounding area and to all other interested, persons,,,Af-

ter such a hearing, the council shall determine :

(1) ‘Whether insanitary or unsafe inhabited dwelling

(2) Whether there is a lack of safe or sanitary dwell-

- ing accommodations in the city and said sur-.

accommodations exist in the city and said sur- |

rounding area, and/or - iF

10a

a - Becerpte from the Nort Carolina

eA “Housing Authority Law”

' pounding area available. for all ‘he inhabitants

thereof. : | |

eel

In eneieniine whether ‘dwelling: accommodations are un-

safe or insanitary, the council shall take into consideration

the following: the physical condition and age of the build-

ings; the degree of overcrowding; the percentage of land

coverage; the light and air available to the inhabitants of |

such dwelling accommodations; the sise and arrangement _

~ of the rooms; the sanitary facilities; and the extent to

- which conditions exist in such buildings which endanger

life or property by fire or other causes.

If it shall determine that either or both of the above.

enumerated conditions exist, the council shall adopt a reso-

lation 80 -finding (which need not go into any detail other =

than the mere finding) and shall cause notice of such -

determination tobe given to the mayor who shall there-

upon appoint, as hereinafter provided, five commissioners

to act as an authority. Said commission-shall be a public _

body and a body ‘corporkte and politic upon the comple-

tion of the taking of the following proceedings :.

The commissioners shall presen é the Soin’ of State

an application signed by them, w: “”. shall set forth (with-

. oat any detail other than the mere recital) :

(1) That ea notice has been given and public hearing

has been held as aforesaid; that the council made

the id determination after such hearing, —

and that the mayor has appointed them as com-

2 missioners ; +

(2) The name and official residence of souls of the com-_

missioners, together with a certified copy of the

5 -y . appointment evidencing their right to office, the

lle | =

Eacerpts from the North Carolina —

“Housing — Law”

- date and place of induction into and taking oath

, Of office, and that’ they desire the housing au-

“thority to become a public body and a body.cor-

porate and politic under this article; aa.

(3) The term of office of each of the commissioners;

(4) The name whieh i is proposed for the einen

_ and |

(5) The distin of the principal office dus the proposed

- corporation. ahs ae

The application shall te subscribed and sworn to by each

of said: commissionere before an officer authorized by the

laws of the State to take and certify oaths, who shall certify

upon the application that he pe rsonally knows the commis-

sioners and knows them to be the officers as asserted in the

application, and that each subscribed and swore thereto

in the officer's. presence. The Secretary of State shall ex-

amine the application and if he finds that the name pro-

_posed for the corporation is not identical with that of a

person or of any other corporation of this State or 80

nearly sithilar as to lead to confusion and uncertainty he

_ Shall receive and file it and shall record it in an appropri-

ate book of record in his office.

When the application-has been made, filed and recorded,

as’ herein provided, the authority shall constitute a public

body and a body corporate and politic under the name

_ proposed in the application ; the Secretary of. State shal].

make and issue to the said: commissioners a certificate of

incorporation pursuant to this article, under ‘the seal of

the State, and shall record. the same with the application.

° *

. . ®-.

‘

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Excerpts from the North Carolina

"ienemng auhetty Law”

If the council, after a hearing as aforesaid, ‘shall deter-

~ mine that neither of the above enumerated conditions exist,

it shall adopt a resolution denying the petition. After

three months shall have expired from the date of the de-

nial of any such petitions, ‘subsequent petitions. may be

filed as aforesaid and new hearings and determinations

» made thereon. alae

In any suit, action or proceedi ing involving the validity

or ce de to any contract of the au-

_ thority, th rity shall: be conclusively deemed-to have

| \ ae established i in accordance with the provisions of this -

article upon proof of the issuance of the aforesaid certifi- ©

* cate by the Secretary of State. A copy of such certificate, .

duly certified by the Secretary of State, shall be admissible

in evidence in any such suit, action or proceeding, and

.. shall be conclusive proof of the filing and contents thereof.

The Secretary of State is authorized and empowered to_.

revoke or to cancel a certificate of incorporation previ- -

ously issued to an authority or housing authority upon

a filing in his office a petition and resolution of the council

~ and a petition and resolution of the authority and its mem-

| __ “bers requesting such revocation or cancellation and when

| the Secretary of State is satisfied that no ‘indebtedness has

been incurrtd or property acquired by said housing au-

Cheemty. (1935, Sm & O 1943, c. 636, s. 7; 1961, ied

)

§ 157-9. Powers of authority

An authority shall constitute a public body and a ‘jm

corporate and politic, exercising public powers, and having

all the. powers necessary or convenient to carry out and ©

_ effectuate the purposes and provisions of this article, in-

a - ns powers in addition to othé¢rs herein

18a

Excerpts “from the North Carolina .

“Housing Authority Law”

To investigate into fiving, dwelling and housing cendi-

tions and into the means and methods of improving such

- conditions; to determine where unsafe, or insanitary dwell-

ing or housing conditions exist; to study and make recom-

mendations concerning the plan of any city or municipality

. located within its boundaries in relation to the problem of

clearing, replanning and reconstruction of areas in which

_. unsafe or insanitary dwelling or housing conditions exist,

and the providing of dwelling accommodations for persons

of low income, and to co-operate witb any city municipal

or regional planning afféncy; to prepare, carry out and

‘operate housing projects; td provide for the construction,

an reconstruction, improvement, alteration or repair of any

_ housing project or any part thereof; to take over by pur-

j chase, lease or otherwise any housing project located with-

"in its boundaries undertaken by any government, or by any

city or municipality located i in whole or in part within its

boundaries; to manage as agent of any city or municipality —

located in whole or in part within its boundaries any hous-

ing project constructed or owned by such city; to act as

agent for the federal government in connection with the

acquisition, construction, operation and/or management of

a housing project or any part thereof; to arrange with

any city. or municipality located in whole or in part within

its boundaries, or with a gov ernmetit for the furnishing,

planning, replanning, installing, opening or closing of

streets, roads, roadways, alleys, sidewalks or other places

or facilities or for the acquisition by sugh city, municipal-

ity, or government of property, options or property rights

or for the furnishing of property or. services in connec- —

tion with-a project; to arrange with the State, its subdi-

visions and agencies, and any conntv. city or municipality

; 14a

Excerpts from the North Carolina

“Housing ns Law” |

of the State, to the cxignt that it is within the scope of

‘each of their respective functions, (i) to cause the services |

‘customarily provided by each of them to be rendered for

- the benefit of such housing authority and/or the occupants

of any housing projects. and (ii) to provide and maintain

_ parks and sewage, water and other facilities adjacent to

or in connection with housing projects and (iii) to change

_ the city or municipal ty map, to. plan,. replan, zone or re-

, zone any part of the city or municipality ; to lease or rent |

— any of the dwelling or other accommodations or any of the

lands, buildings, structures or facilities embraced in any

housing projéct-and to establish and revise the: rents or -

charges therefor* to enter upon any building or property

in-order to conduct investigations.or to make surveys or

soundings; ; to purchase, lease, obtain options upon, ac-

quire by gift, grant, bequest, devise, or otherwise any

property real or personal or any interest: therein. from

any person, firm, corporation, : ‘city, municipality, or gov- °

ernment; to acquire by eminent domain any real property,

including improvements and fixtures thereon; to sell, ex-.

change, transfer, assign, or pledge any property real or

personal or any interest therein to any person, firm,:cor- .

poration, municipality, city, or government; to own, hold, !

‘clear and improve property; to insure or provide for the

insurance of the property or operations of the authority

against such risks as the authority may deem advisable; 5:

to-procure insurance or guarantees from-a federal govern-

ment of the payment of any debts or parts thereof se- . |

’ eured by.mortgages made or held by the authority.on shy -

property included in any housing project; to borrow money ~~

_ upon -its bonds, notes, debentures or other evidences of

indebtedness and to secure the same by pledges of its

Fhe

Excerpts’ from the North Carolina .

“Housing Authority Law”

revenues, ‘and (subject to the limitations hereinafter im-

posed) by mortgages upop property held or t6 be held -

__ by it, or in any other manner; in connection with any loan,

@t° agree to limitations upon its right to dispose of any

housing project or part thereof or to undertake additional

hogging Projects; in connection with any loan by a gov-

ernment, to agree to limitations upon the exercise of any

powers conferred upon the authority by this article ; to

invest any funds held in reserves or sinking funds, or

any funds not -required for immediate disbursement, in

_ property or securities in which Savings banks may legally

invest funds subject to their control ; ‘to sue and be sued;

to have a seal and to alter the sameat pleasure; to have.

“requiring the attendance of witnesses or the production of

_ ination of witnesses who are out of the State or: unable

to attend before the authority, or excused from attendance ;

and to make available to such agencies, boards or commis-

sions as are charged with the ‘duty of abating or requir-

ing the correction of nuisances or like‘ conditions, or of

demolishing unsafe or insanitary structures within its. ter-

ritorial limits, its findings and recommendations with re-.

gard to any building or. property where conditions exist’

Me,

ax. from the North Nasties . i

“Housing Authority Law”

which are yee to the public health, morals, safety

or welfare. Any of the investigations ‘or examinations pro-

.. wided for in this article. may be conducted by the author-° -

ity or by 8 committee appeinted by it, consisting of one

or more Gommissioners, or by counsel, or by an officer or

employee specially authorized by the authority to, con- Z

duct it. Any commissioner, counsel for the authority, or

any person designated by it to conduct an investigation —

or examination shall have power to administer oaths, take

affidavits and issue subpoenas or commissions. An av-

. thority may exercise any or all of the powers herein’con-

ferred upon it, either generally or with respect to any

specific housing project or projects, through or by an

agent or agents which it may designate, including any

- corporation or corporations which are or shall be formed.

‘under the laws of this State, and for such purposes an

authority may cause one or more corporations to be

formed under the laws of this’ State or may acquire the |

capital stock of any corporation or corporations. Any

corporate. agent, all of the stock of. which shall be owned |

by the authority or ‘its nominee or nominees, may to the

extent permitted by law exercise any of the powers con- —

“ ferred upon the authority herein. In addition to all of the

’ other powers herein conferred upon it, an authority may :

‘do all things necessary and convenient to carry out the

powers expressly given in this article. No provisions with °°

to the. acquisition, ‘operation or disposition of

property by other public bodies shall be applicable to an

authority unless the legislature shall specifically so state.

Notwithstanding. anything to the contrary cdntained in

this article or in any other provision of law an authority”

_ may include in any contract let in connection with @

- | \ 17a

Excerpts from the North Cagolina

. “Housing ‘Authority Law” _

» ptoject, stipulations requiring that the contractor and any _

subcontractors comply with requirements as to minimum

wages and maximum hours of labor, and comply with any

conditions which the federal government may have at-_

tached to its financial aid‘of the project. (1935, ¢. 456, s. 9; ay

| 9 1989,0. 150.) ee eee es i

§ 157-28. Contracts with federal government

» In addition to the powers conferred upon the authority

. by: other provisions of this article, the authority is em-

powered to borrow money and/or accept grants from, the

‘féderal government for or in aid’ of “the construction of

any housing project which such authority ig, authorized by

_ this article to undertake, to take over day land acquired

. by the federal go¥ernment:for the construction: of a hous-

ing project, to ‘take over or lease or(man omg Saal doar?

_ project constructed or owned by the federal. government,

_and to these ends, to enter into such’ contracts, mortgages, -

_ trust indentures, leases or other agreements as the federal

government may require including agreements that the

federal government shall have the right to supervise and

‘approve the construction, maintenance and operation of

such housing project. It is the purpose and ‘intent of this ~

article to authorize every éuthority do any and all things

necessary to secure the financial aid and the co-operation |

‘of the federal government in the construction, maintenance

and operation of any- housing project which the’authority’ , ©

‘is empowered by this article fo undertake. (1935,'c. 456, _

" g. 38.) °° ero : RA

§ 157-29, Rentals and tenant selection = ¢

‘. : , It is heveby declared to be the policy ofthis State that \

each housing authority shall manage and operate its hous-

‘ ¢ ; ‘ ; ; , “4 ‘ 6+”

: Excerpts from the North. Carolina -

, “Housing Authority Law” >

ing projects in an efficient manner so as to enable it to

fix the rentals for dwelling accommodations: at the lowest

possible rates consistent with its providing decent, safe and

. sanitary dwelling accommodations, and that no housing ~

_. authority ‘shall construct or operate any guch’ project for

profit, or as a source of reventé to the city. To this end

. * an authority shall fix the rentals for dwellings in its proj-

ects at no higher rates than it shall fitid to be necessary

in order to produce, revenues Which (together with all .

‘ other available monies, rev enues, income and receipts of |

the enemies + from whatever : sources: derived) will bcs suffi-_ ;

cient :

~@) To pay, as the same becom@.due, the intitle and

interest on the bonds of the authority ; ae

( 2) To. meet. the cost of, ‘and to provide for, maifitain:

ae ing and operating the projects (including the

ea A eost of. any insurance) and, the’ administrative

" expenses of the authority ; and .

(3) To ereate (during not less than the six years

immediately. succeeding: its issuance .of any

. bonds) a reserve sufficient to’ meet the largest: _

i | principal and interest’ payment which: will -be .

due on such bonds in any one year thereafter

and to maintain ‘such wale a

~ In the epetpties or management of housing: projects an

authority shall .at all times observe‘ the following. duties

with respeet to rentals and tenant selection: =

~ (1) It gay rent or lease the dw elling EE tae

therein only’ to persons who’lack the amount of.

' income which —— (as determined ty was

| 19a

Excerpts from the North Carolina

“Housing Auihorty Law”

housing author@y anistiatiing the Sieitie pro)- ees

est) to enable them, without financial assistance}

_to live in decent, safe and sanitary. dwellings,

without overcrowding ;

( 2) It may rent or lease the dwelling accommodations ,

only at rentals within the financial reach of _

- per sans; ’ * Y a

ae 4

Paci x may rent or lease to a tenant dw ding accom-

modations: consisting’ of the number of rooms

(but no greater number) which it deems neces-

‘sary to provi safe and sanitary accommoda-

tions to the proposed occupants thereof, with- $

out overcrowding; and

(4) ‘It shall not accept any person as a tenant in any

housing project if the person’ or persons who

. would occupy. the dwelling accommodations have

.an annual ‘net income in-excess of fiye times the:

annual rental of the quarters to be furnished |

_ Such persor or persons, except that in the case

of families with three or nf~re minor “depend-

dents, such ratio shall. not exceed six to one;

‘in computing the rental for this purpose of’.

sélecting tenants, there shall be included in the;

rental the average annual cost (as determined —

by the authority) to° “oceupants of heat, water, ;

electricity, gas, ‘cooking range and other neces-

sary services or facilities, whether or not the

charge for such services and facilities is in fact

included i in the rental. |

: R ‘ a

Excerpts from the North Carolina

nn ne Law”

Nothing contaizied i m, this tins shall be construed as

- limiting the power of an authority to vest in an_obligee

the right, in the event of a. default, by the authority, to

take possession of. a housing: pr oject or cause the appoint-

ment of a receiver thereof, frees from all the restrictions

_ Imposed by this section. (1939, c.: 150.)

. Qla

APPENDIX III

North Carolina Statutes Re Summary Ejectment

Gen. Stats of North Carolina, § 42:26 et seq:

942-26. ‘Tenant holding over may be daposced in cert

Any tenant or lessee-of any house or land, and the as-

signs under the tenant or legal representatives of ‘such*

_ tenant or lessee, who holds over and continues in the pos-

session of the demised premises, or any part thereof, with-

_ out the permissicn of the landlord, and after demand made ae

for its surrender, may be removed from such premises in ~

the manner hereinafter prescribed 1 in — of the following

cases : -

c=]

(1) When a tenant in possession of real estate holds

over after his term has expired.

(2) When the tenant or lessee, or gfher person under

him, has done or omitted any act by which, ac-

cording to the ic of the lease, his estate )

has. ceased, .

(3) When any tenant or lessee of lands or ieee,

who is in arrear for rent or has agreed to culti-

- yaté the demised premises and to pay a part of

the crop to be’ made thereon as-rent, or’ who

has given to the lessor a lien on such crop asa .

security for the rent, deserts the demised prem- —

- jses, and leaves them unoccupied and unculti-

vated. (4 Geo. II, «. 28; 1868-9, ¢ 156, s. 19;

Code, ss. 1766, 1777; 1905, cc. 297, 299, 820;

- Rev., 8. 2901; C. S., s. 2365.)

. .

— 2

° .

“ ad > . .

24 .

Os. - -~22a

‘North Carolina Statutes Re Summary Ejectment

s § 42:28. Summons issued by justice on verified complaint.

When the lessor or his assigns, or his or their agent or

attorney, makes ‘oath in writing, before any justice of the a

peace of the county in which’ the demised premises are are

_ situated, stating such facts. as constitute one of the cases — !

described in §42-26 and §42-27, and describing the premises _#

and asking to be put in possession thereof, the justice shall- —— 1

issue a summons reciting the substance of the cath, and = =

requiring the defendant to appear before him or some other ee

justice of the county, at a certain place and time (not to

exceed five days from the issuing of the summons, with-

out the consent of the plaintiff or his agent or attorney),

to answer the complaint. The plaintiff or his agent or at- i m

torney may in his oath claim rent in arrear, and damage

for the occupation of the premises. since the cessation of ~ = |

the estate of the lessee: Provided, the sum claimed shall © =~)

not exceed two hundred dollars; but if he omits to make

such claim, he shall not be thereby prejudiced in any other

action for their recovery. (1868-9, c. 156, 8: 20; 1869-70, ¢.’

212; Code, §. 1767; ‘Rev,, s. 2002 ; C. S., 8. 2367.)

» $4229. Service of summons }

The officer. receiving such summons shall immediately — |

serve it by the delivery of a copy to the defendant or by | ;

- leaving a copy at his usual or last place of residence, with

' some adult person, if any such be found there; or, if: the 3

defendant has no usual place of residence in the county

and cannot be found therein, by fixing a copy on some con- © .

- Spicaous part of the premises claimed. (1868-9, c. 156, s. 21; :

. Code, 8. 1768; Rev., s. 2003; C. S., s. 2368.)

23a |

North Carolina Statutes Re Summary Ejectment®

| : a &

§ 42-30. Judgment by default or confession

. The summons shall be returned according to its tenor,

and {f on its return if appears to have ‘been duly: served;

. and if the defendant fails to appear, of admits the allega-

tions of the complaint, the justice shall give judgment that -

the defendant be removed from, and the plaintiff be put

. in possession of, the demised premises; and if any rent or

damages for the occupation of the premises after the ces-

' gation of the estate of the lessee, not exceeding two hun-

dred dollars, be claimed in the oath of the plaintiff as due —

and unpaid, the justice shall inquire thereof, and give judg-

ment as he may find the fact to be. (1868-9, c. 156, s. 22;

Code, s. 1769; Rev., s. 2004; C. 8, 8. 2369.) )

§ 42-31. Trial by justices jury trials judgment; exeention

If the deferidant by his answer denies any material alle-

. gation in the oath of the plaintiff, the justice shall hear

_ the evidence and give judgment as he shall find the facts

to be. If either. party demands a trial by jury, it shall be —

_granted under the rules prescribed by law for other trials

_ by jury before a justice;.and if the jury finds that the

allegation in the plaintiff’s oath, which entitles him to be

‘put in possession, is true, the justice shall<give judgment .

that the defendant be removed from and the plaintiff put 23

in possession of the demised premises, and also for such

rent and damages as shall have been assessed by the jury,

and for costs; and shall issue his execution to carry the |

judgment into effect. (1868-9, c. 156, s. 23; Code, s. 1770;

Rev., 8. 2005; C. 8., s. 2370.) : e

§ 42-32. Damages assessed to trial

On appeal to the superior court, the settee nena

joined shall assess the damages of. the plaintiff for the

. : ; ; : ~

- Norta Carolina Statutes Re Summary Ejectment

detention of his possession to the tinie of the trial in that

court; and, if the jury finds that the detention was Wrong-

ful and that the appeal was without merit and taken for

the purpose of delay, the plaintiff, in addition to any other

area Saigon allowed, shall be entitled to double the amount of

rent in arrears, or which may have accrued, to the time

of trial in the superior court.. Judgment for the rent in

arrears and for the damages assessed may, on motion, be

rendered against the sureties to the appeal. (1868-9, o. 156,

8. 28; Code, s. 1775; cuties 2006; C. S., s. 2371; 1945, o.

796.)

- ganna Undertaking on appeal when to be increased

the justice of the peace :. Provided,-further, that the presid- -

‘Rither party may appeal from the judgment of the jus-

tice, as is prescribed in other cases of appeal from the

judgment of a justice; upon appeal to the-superior court

either plaintiff or defendant may demand that the same -

“shall be tried at the first term of said court after said ap-

peal is docketed in faid court, and. said trial shall have

precedence in the trial of all other cases, execpt in cases

of exceptions to homesteads: Provided, that said appeal

shall have been docketed at least ten days prior tothe —

convening of said court: Provided further, that in the

event the trial before the justice of the peace takes place

"at least fifteen days prior to the convening of said stiperior

court, said appeal shall, upon the demand of either plain- _

. tiff or defendant, be docketed in time to be tried at said

. first term of said superior court after said trial before

ing jadge, in his discretion, may make up for trial in

advance any pending case in which the rights of the parties

or the public require it; but no execution commanding the

2680

North Carolina Statute Re Summary Ejectment

removal of a defendant from the possession of the demised

premises shall be suspended until the defendant gives an

undertaking in an amount not less than one year’s rent

of the premises, with sufficient surety, who shall justify

and be approved by the justice, to be void if the defendant

pays any judgment which in that or any other action the ~

plaintiff. may recover for rent, and for damages for the

detention of the land. At any term of the superior court

of the county in which such appeal is docketed after the

lapse of one year from the date of the filing of the under-

tnking above mentioned, the tenant, after legal notice to

that end has been duly executed on him, may be required ©

to show cause why said undertaking should not be increased

to an amount sufficient to cover rents and damages for such

period as to the court may seem proper, and if such tenant

fails to show proper cause and does not file such bond for

rents and ‘damages as the court may direct, or make affi- _

davit that he is unable so to do and show merits, his appeal

shall be dismissed and the judgment of the justice of the

peace shall be affirmed. (1868-9, c. 156, s. 25; 1883, ¢. 316;

Code, s. 1772; Rev., 8. 2008; C. 8., s. 2373; 1921, «. 90; Ex.

* Sess. 1921, c. 17; 1933, c. 154; 1937, c. 294; 1949, ec. 1159.)

26a

APPENDIX IV

** Gireulars and Manual Provisions of the: United States

' Department of Housing and Urban Affairs

Circular of February 7, 1967

_-DEPARTMENT OF HOUSING AND -

URBAN DEVELOPMENT -

, | * Washington, D. C. 20410

or 7 esa + . CrecuLAR

2-17-67

Office’ of das aise anitely For Renewal

and Housing Assistance "

! Assistant Regional Administrators for

Housing Assistance ~

- HAA Division and Branch Heads

Faou: Don Hemme

Sussect: Termination of Tenaney i in Low-Rent Posiiite

Within the past year increasing lisastigfaction has been

- expressed with eviction practices in public low-rent hous-

ing projects. During that period a number of suits have

. been filed throughout the United States generally challeng-

“ing the right of a Local Authority ¢o evict a tenant without

advising ~, of the reasons for-such eviction.

Since this is a federally assisted program, we bélieve it is

essential that no tenant be given notice to vacate without be-

ing told by the Local Authority, in a private conference or

other appropriate manner, the reasons for the ‘eviction, and

given an opportunity to make such reply or explanation as

he niay wish.

SB ree a

ee ee ee ee nt ee

> whiudierncsahinian yews ee

27a

Poth

_ Circulars and Manual Provisions of the United States

Department of Housing and Urban Affairs

Ctreular of February 7, 1967

In addition to informing the tenant of the sneenie for

any proposed eviction action, from this date each Local ©

Authority shall maintain a written record of every eviction

from its federally assisted public housing. Such records are

to be available for review from time to time by HUD repre-

sentatives and shall contain the following information:

i Name of tenant and identification of untt occupied.

2. Date of notice to vacate.

3. Specific reason(s) for Sice to vacate. For example,

if a tenant is being evicted because of undesirable ac-

tions, the nae ea detail the actions which re- —

sulted in the determination that eviction should be ;

instituted. e.

- 4. Date and method of ‘notifying tenant with summary

of any conference with tenant, including” names. of con-

ference participants.

5. Date and description of final action taken.

The Circular on the above subject from the PHA Commis-

sioner, dated May 31, 1966, is superseded by this Circular.

_8/ Don Hummel!

Assistant Secretary for Renewal

and Housing Assistance

Circulir of May 31, 1966

DEPARTMENT OF HOUSING AND .

' URBAN DEVELOPMENT —

PUBLIC HOUSING ADMINISTRATION

Washington, D. C. 20413

\ CracuLaR

To: ‘ Local Authorities

Regional] Directors

Central Office Division and Branch ‘Heads

From: Commissioner

Sussect: Termination of tenancy laiaiak? projects

The Public Housing Administration has for a-number of |

years recommended that tenant leases be drawn on a month-

to-month basis noting that this practice should permit any

necessary evictions to be accomplished upon the giving of

a notice to vacate. There is as you may be aware growing

opposition and challenge from: individuals and organiza-

tions to the practice of simply giving the statutory. notice

without stating the reason or reasons therefor.

In connection with the aboye practice, we strongly urge, as’, |

a matter of good social poli¢y, that Local Authorities in a ¥

private conference inform any tenants who are given, such Woe

notices of the reasons for this action. |

Also, not all Local Authorities have kept their tenant lease

forms-current with the result that, in some cases, obsolete . |

Anes Se

and unenforceable lease conditions are being challenged

legally. We urge that all Local Authorities review their

lease forms and remove any such conditions. Regional Of-

fices will provide advice and assistance in connection with |

such reviews as may be: desired. Atos !

8/ Marie C. McGuire ,

. Commissioner ee

- Girealar of Joly 28,1954 jivk Ti Soe \

% |

PUBLIC HOUSING Fe ee : ‘i

ce HOUSING AND HOME FINANCE AGENCY bs ,

Wasuinoton 25, D.C. Jie

Cmounag

7-28-54 ‘ -

To: Local Authorities - a, gat? |

Field Office Directors ¥,

Susszcr: Decision in Rudder v. US of A and Its Fail

tance Re Tenant Lease Forms

The: decision made in the case of John ‘Rudder Le Doris

Rudder, Appellants; v. United: States of America, Appellee,

No. 1429 in the Municipal Court of Appeals for the Dis-

- trict of Columbia, on June 9, 1954, is one which should be —

of interest to all Local Authorities as it affects the issu-

ance of Notices To Vacate and the right to evict any teri-

ant, either in the Lanham Act or. the low-rent program.

The questions at issue were whether the U. 8. Govern-

ment (National Capital Housing Authority) is required: to

reveal its reason for seeking to terminate tenancy and

_ whether, if a reason were given, the tenant had the tight.

to defend on. the ground that the reason given was im-

proper or unlawful. The Appellate Court stated that the

Government, like any private landlord, hag the right ‘to

terminate a monthly tenancy by serving a statutory No-

tice To Quit without revealing the reason therefor, pro-

viding, that such action. is in accord with the existing.

lease agreement with the ténant. Although, in this case,

the lease agreement did provide for termination upon

30 ‘days’ notice, the ‘Housing’ Authority included in the

lease a provision that it could be terminated for any one

of ight listed reasons.. The Appellate Court held that

“Circular of July 28, 1954

lie

_ the Ceneeunans in citing one such reason in its Notice °

~. To Quit was in effect saying that eviction would be sought -

only for one or more of thgse eight stated reasons. It

therefore -held that the Trifl Court should have enter-

tained the defense of the tenant. However, because of

another more compelling consideration the Appellate Court —

did not reverse the decision of the Trial: Court.

In light of this Aecision it it suggesttd that all existing . i

tenant lease forms be review to determine whether there

ate contained therein any provisions which, might be in-

terpreted bya Court as being contrary to a simple molthly ”

tenancy, thus precluding tenancy being terminated by mere-

ly giving the statutory Notice To Quit. It is also suggested

_that all future Notices To Quit cite nly the provision of

the lease which permits termination within a specified

time without reference to any other provision.

- (Illegible Signature)

_ Acting Commissioner |

rs ’

: / . ‘Bla

‘Selected Provisions of the Federal Low-Rent_

Housing Management Manual ©

ae ee be <a he eas ;

September 1963 Low-Renr Hovusinc Manvay — 100.2.

Description aud Distribution 6f PHA a

M antals and ‘Technical Guides

1. Introduction. The. Public Housing Administration ian

- statutory responsibility for ensuring that the objectives

~ of the U.S. Housing Act of 1937 are achieved. To ful-

fiJl this responsibility, it has: established minimum re-

quirements. for Local Authorities who are planning, ©

constructing, and operating PHA-aided low-rent hous-

sing. The basic requirements are set forth. in the |

“Preliminary Loan Contract, Annual Contributions Con-

tract, or Administration Contract between the Local

Authority and the PHA. Supplementary’ requirements

and advisory material for Local-.Authorities are con-

_tained in manuals, circulars, bulletins, handbooks, and

booklets issued by the PHA. This Section 100.2. treats

the latter category of material, and gives information -

of the distribution of _—. to Local as asia :

2. The System a Directives

a. Manuals. ‘The PHA manuals ’ contain the require-

ments which supplement the provisions of the Con-

_ tracts between thé Local Authority, and the PHA.

_ ‘The four manuals and the’ subjects ~ cover are

as follows: '

(1) ‘The Low-Rent Housing ‘Masel siehen PHA

policy | and covers necessary Local Authority

actions in connection with initiating, planning, ©

and constructing a oo low-rent housing

«a>

yc. t,...e

Selected’ Provisions of the. Federal Low-Rent

Housing Management Manual |

project,. and also-includes introductory Sections

100:1 through 103. 1 for use by aH Local Author-

ities i in development or management operations ; :

(2) The PHA Accounting. Manual contains 4 uni-

' form system of accounts to be used b Local

Authorities and provides : structions (for ac-

counting during the planning, construction, and

- operation of projects (Sections A14.1-and A14.2

of this Manual relate ne to — Local

- Authorities) ; . :

(3) The PHA. Financing Manual aii instruc- |

tions for temporary and. permanent financing f

of projects; sts ee,

(4) The PHA Management Manual contains. PHA |

requirements: and covers’ Local Authority ac-

tions in connection with the operation of projects

after initial occupancy.

: ‘ . ; f

b. Circulars. Circulate igsued by the PHA 1 are of two

types, procedural and nonprocedural. Circulars of § aie

~& procedural nafure contain requirements which have 4

the same effect as manuals; they are temporary ad- q

ditions to or modifications of the manuals pending

incorporation of the provisions into the appropriate |

manual, and are clearly identified as such, Other . a , :

circulars are merely informative or, if procedural,

- are for one-time, nonrecurring use and do not affect

the ‘manuals or other more permanent“publications. _

Selected Provisions of the Federal Low-Rent

Housing Management Manual

c. Bulletins, Handbooks, and Booklets

me) The Low-Rent Housing Bulletins sehidiain de-

tailed technical treatments of specific subjects —

and may be either (a) wholly .or partially man-

datory,; or (b) wholly nonmandatory. The dis-

tinction is made clear in each bulletin or in.the -

reference to it in the appropriate manual. Orig-

inally, the Low-Rent Housing Bulletins were |

numbered LR-1 through LR-54 but some have

become obsolete or have -been superseded. by

_¢ sections in the handbook series. Although con-

version of other bulletins to the handbook series

is planned, bulletins pertaining to development ’

matters are not scheduled for conversion and

revisions to these are issued as needed.

_ (2) The Local Housing Authority Accounting Hand-

book gives.technical suggestions for accomplish-

ing the requirements of - PHA Accounting

Manual.

é & . S :

(3) The Local Housing Authority Manageéniont

Handbook offers suggestions and techniques for

housing operation and maintenance.

(4) The-Contractor’ s Handbook covers instructions -

'-for use by contractors. engaged in constructing

PHA-aided housing.

(5) The Architect’s Check List booklet presents

_ items for consideration in planning housing for

" the elderly.

S4a e<

Selected Provisions of the- Federal Low-Rent

Housing Menagemont Manual

(6) The Income: Limits booklet provides wiles

in establishing and administering i income eases

for PHA-aided: ‘housing.

. (7) The Management of Housing for Senior Citizens

_ booklet lists factors for consideration in oper-

ating housing for the elderly. . RT ead a

d.. Material for Architects, Engineers and Contractors.

The Arehitect’s Check List, certain sections of the

-Low-Rent Housing Manual, and some Low-Rent

_ Housing Bulletins-are also needed by architects and

. engineers;-the Contractor’s Handbook. is needed by

. construction contractors. To maintain appropriate

. relationships, such materials should be furnished

__ by the. Local Authority to its architects, engineers,

and contractors. Additional copies needed for this.

purpose will be sent by the PHA to i satin Au-

thority on request. :

. at

3. Revisions

a. LooseYeaf Form. All supplemental Fipitinlianite and

most advisory materials are issued in looseleaf form

and should be inserted in binders and kept current,

at all times. The looseleaf form facilitates the

handling of revisions, additions, and deletions. —

35a

Seledted Provisions of the Federal Low-Rent

H ousing M anagement M anual

HUD -

- October 1967 Low-Rent Manacement Manvat Section 3

3.9 Términations of Tenancy

a. It is believed essential that no tenant be given

notice to vacate without being told by a duly author- |

ized’ representative of the Local Authority, in a

private conference or other appropriate manner,

the reasons for the eviction, and given an oppor-.

tunity to make such reply or explanation as he

may wish. |

b. In additi6n to Lshocuitaee € the tenant of the reason(s)

for any proposed eviction action, each Local Au-

thority shall maintain a written record of every

"eviction from its federally a8sisted public housing."

Such records are to be available for review from.

time to time by HUD representatives and shall

contain the following information:

(1) Name of tenant and identification of unit oc-

cupied. , ;

(2)' Date and copy of notice: to vaente.

(3) Specific reason(s) for notice to vacate. (For

c example, if a tenant is being evicted because of

" undesirable actions, the record should detail ©

the actions. which resulted in the determination

_ that eviction ‘should be instituted.)

(4) Date and method of notifying tenant of reasons

and, if by conference with tenant, a summary

of any such conferences, including names as

conference participants. -

(5). Date and description of final ‘action toes.

- Mr. Don Hummel

_ APPENDIX . &

°Q

dsiiiendiibin re: HUD Interpretation ‘of

February 7, 1967, Circular

July 10, 1967,

Assistant Secretary for Renewal

“and Housing Assistance -

Department of Housing and Urban -

Development | |

Washington, D. C. 20410 ©

Re: Thorpe v. Housing Authority of the City .

of sigh clea Circular ia

Dear: Mr. Hummel :

I am an attorney for Mrs. Joyce Thorpe, the petitioner —

in the case above. As-you probably know, the Supreme

Court of the United States, on April 17, 1967, remanded

the case to the Supreme Court of North Carolina for recon-

sideration in light of the circular issued under your name

by the Department of Housing and Urban Development on

February 7,:1967. The Supreme Court of North Carolina -

has just recently required us to submit briefs in the case by’

August 1, 1967, in light of the action of the Supreme Court

of the United States. |

The purpose of this letter is to obtain from the Depart.

" ment of Housing and Urban Development its views as to

the present legal status and effect of the February 7th

circular, in-order to aid usin the preparation of our brief

for the Supreme. Court of North Carolina.. We have a.

number of questions to which we would appreciate your

ie , P . : f 5 ; ;

| 87° ry

Correspondence re: HUD Interpretation of

February 7, 1967, Circular, ~ :

1, What is the legal status of the circular? *

(A) Was it intended to be legally binding on loeal *

public housing. authorities, or merely advisory? .

(B) Isit planned to include the circular in the manual

sent to public housing authorities so as to make

it binding? Te Hr | |

_ Register or is it intended that it will be pub-

lished in the Federal Register? °

2. What is the intention of the circular as to the nature

of the hearing to be afforded to the tenant? The circu-

lar speaks of local authorities telling the tenant “ina -

private conference or other appropriate manner, the .

reasons for the eviction”: and giving a tenant. “an

opportunity to make such reply or explanation as he

may wish.” WER :

* (A) Would an informal conference bétween the ten-

‘ant and the housing manager be sufficient to

comply with the circular?

(B) Is the requirement intended to be broader, e.7.,

the giving of a more formal hearing at the

tenant’s request before the housing authority _

: board itself, or other body, at. which time’ the |

tenant would be able to present: evidence on’

her behalf: and confront ‘any persons who had

made charges against her? ~ |

3. Does HUD have any views as to what reasons justify

an eviction? Or, may the housing authority terminate

the lease for any reasons it feels appropriate?

Correspondence re: HUD Interpretation of

February 7, 1967, Circular

4. Does HUD intend to enforce the circular by, for ex-

° ample, cutting off funds if the records set out in the

circular are not maintained or if notice of reason

and opportunity to be heard are. not given?

Thank you very much for your consideration.

Very truly yours,

_ /8/ Crantzs 8. Rarstox

Charles Stephen Ralston

CSR :cf 7

oc: Mr. Joseph Burstein

‘ 39a

- .

rs Correspondence re: HUD Interpretation of

February 7, 1967, Circular

DerarTMEnt or Hovsine AND Unean DeveLoPMent

_ Wasuixotor, D, C. 20410 -

- OBR.

Orrice or THe Aseierawt SzcneTaRy = 7/27/67

- FOR RENEWAL AND Hovsine ASSISTANCE :

Mr. Charles Stephen Ralston

"NAACP Legal Defense and

Educational Fund, Inc.

10 Columbus Circle

New York, N.Y. 10019

Re: Joyce C. Thorpe v. Housing Authority of the City

of Durham |

Dear Mr. Ralston:

' This is in reply to your letter of July 10, 1967, advising that

_ you are an attorney for Mrs. Joyce Thorpe, the petitioner

‘ in the above case, and requesting our views as to the present _

legal status and effect of our February 7, 1967, circular on -

the ‘subject “Terminations of Tenancy in Low-Rent Proj-

ects.” “ zi

The following are your questions and our answers:

Q. 1. What is.the legal status of the circular?

(A) Was it intended to be legally binding on local

' public housing authorities, or merely ad-

- Vvisory? | ss |

A. It is our position that the. circular is legally author-

: ized under Section 8 of the. United States Housing Act

of 1937; that it means what it says; and that we in-

tended it to be followed. We assume that the question

as to the authority of the Department of Housing and_

40a

— f 4 : ; 4

Correspondence re: HUD Interpretation of

February 7, 1967, Circular

‘ Urban Development to make the provisions of the

circular mandatory, either in whole or in part, is gne

that will be answered by the-courts in the Thorpe

. (B) Isit planned to include the circular in the manual

sent to public housing authorities so as to make

it binding!

. The circular is: as binding in its present form as it

wil! be after incorporation in the manual. It is in the

process of being so incorporated.

. (C) Has the circular been pyblished in the Federal

_ Register or is it intended that it will be ‘pub-

lished in the Federal Register?

. It is not intended to publish the civenlar in the

Federal Register. Under the Administrative Pro-

cedure Act, prior to its amendment by P.L: 89-487,

effective July 4, 1967, publication in the Federal Reg-

ister was required. only for matter which is formulated

and adopted “for the guidance of the public.” HUD

_ policy over the years has been to treat local housing

- ‘authorities as contracting parties under the Annual

_ Contributions Contract not covered by the term “pub-

lic.” Material issued ‘from time.to time for the guid-

ance of local housing authorities in the implementa-

_ tion of the Annual Contributions Contract has, there-

fore, not been published in the Federal Register ‘but

local authorities are given actual notice of these

matters by supplying the material (manuals, bulletins,

“arculars, and similar publications) directly to the

_ Alle )

Correspondence 1 re: H UD Interpretation of

February 7, 1967, Circular

local authorities. While P.L. 89-437 amended the Ad- ’

ministrative Procedure Act as to publication in the -

Federal Register, the Attorney General’s memoran-“—~

dum on that Act, at page 10, states that “rules, policy

. statements and interpretations which do not concern

the public similarly are to be omitted from the Federal .

the policy of treating local housing authorities as not

being part of the “public” for the purposes of the

. requirement of publication in the Federal Register.

A copy of the HUD Regulations under P.L. 89-437 is

enclosed for your information and convenience, to-

gether with a copy of the Attorney General’s Memo-

randum.

Q. 2. What is the intention of the circular as to the na-

ture of the hearing to be afforded to the tenant? |

| The circular speaks of local ‘authorities telling the

tenant “in a private conference or other appropri- . —_

ate- manner, the reasons for the eviction” and: |

giving a tenant “an opportunity to make such reply

or explanation as he may wish.”

“(A) Would an informal conference between the

tenant and the housing manager be sufficient

* to comply with the circular? —

A, It. was our intention that an informal conference

would be sufficient compliance with the circular.

Q: ( ” Is the Tequirement intended to be broader, C.9:,

: ., the giving of-a, more formal hearing at the ten-

“* ant’s request before the housing. authority board

itself, or other body, at which time the tenant

a¢

‘Correspondence re: HUD Inderpretation of

February 7, 1967, Circular

would be able to present ‘evidence on her behalf

and confront any person who had made anaes -

against her?

\ quired to give the tenant a more formal hearing. . _The

{question of whether fhe tenant is entitled to a formal: -

_ hearing or whether -the opportunity afforded the

* ‘tenant-of a full.judicial hearing when the Authority —

‘ attempts to evict him: through judicial process is suffi-

cient. is One of tlie issues to be decided by the Thorpe —

case. We would, of course, approve of the ‘housing —

authorities’ adopting a procedure. to give the ae,

F .,, @& more formal hearing. |

a Be Does HUD have. any: views as to what reasons

eee ER, terminate the ‘lease for, any reasons it feels ap-

ae propriate? .

n A. Of course there are a number. of. reasons: that would

justify an ‘eviction, in our opinion, such as destruction .

of property, breaches of the peace or other, boisterous

. & *“eonduet which’ would: disturb other tenants, ponpay-

% .. ment of rent, failure to ‘report an increase in family

“¢ ~ ineome, or .a number of other-‘reasons. which .conld-

“ reasonably be. said to impair the-successful operation

_ , of the project as “decent, safe, and sanitary” housing. ;

’ Certainly the housing: authority may not terminate the __

‘lease “for any reasons it feels: appropriate” if such -

ie: ‘reasons | are. arbitrary or capricious, nor may it evict

: ‘a tenant ‘as retribution for his’ exercise: -of a constitu-

a » tional right

De : 2

rs *

A. It was not intended that the hecisinet silicate be re- |

Correspondence re: HUD Interpretation of, hae

February 7, 1967, Ctroulor

@. 4. “Does HUD intend to iii the iin -by, for

the circular are not maintained or if notice of —

reason and opport tunity to be heard are not given?

A. HUD intends to enforce the. circular to the fullest ex-

tent of its ability.’ Enforcement will probably be ac-

complished by judicial process or, if necessary, by the

take-over and operation of the projects by HUD under

_ the provisions of Section 22 of the USHAct.rather. *

_»than by cutting off funds to the local housing author-

ity. This is primarily because we consider these reme-

dies sufficient and more-constructive than cutting off

funds, and further because .the full faith and credit of

the United States is pledged to the payment of the

bonds-and other obligations of local housing authori- -

- ties, which, in turn, depends on the availability of these

funds. Section 22 of the USHAct -Yrequires that these

’ Siaie (annual. contributions). must continue until the

securities are paid, regardless of any act or omission

of the local hotsing authority. vs

Y .

We trust that these are . sufficient answers to: your questions.

Saad a f° Sincerely’ yours,

/s/ Don Hume

Don Hummel

Assistant Secretary .

. » Enclosures

44a

Correspondence r re: HUD Sitietnetiinien, of

February 7, 1967, aaaaied

DEParTMENT OF Reni AND Unsan Davaoesems

Hovsine AssIsTANCE ADMINISTRATION

"Washington, D.C. 20413

es eee C.S.R.

- ao ied 8/8/67

Ave 7 1967

Mr. Chnies Stephen Ralston Pi

NAACP Legal Defense and Educational Fund, Inc.

10 Columbus Circle

New York, N. Y. 10019

- Dear Mr. Ralston:

Reference is made to your letter of July 10, 1967, enclosing

copy of letter you sent to Mr. Hummel asking for HUD’s

dpinion on the status and effect of the February 7, 1967,

Circular regarding evictions from public housing. Your

letter asks that I also.give you my views as to the questions

- asked in your letter.

I am familiar with Mr. Hummel’s reply dated July 25, 1967,

to your letter and my views are the same as those expressed

hd him. | : '

: &

Sincerely yours,

/8/ JosEPH BursvErx

+ : Joseph Burstein

Chief Counsel

‘ A

, APPENDIX VI

- Opinion of March 11, 1968

NEW YORK SUPREME COURT

Reta Drvision—Seconp DEPARTMENT

In the matter of |

Bennie. Vinson, ef al., | ASS

| : Respondents. :

onalifipann

GneensurcH Hovsmwyc Auruority, \ -

Appellant.

Decided March 11, 1968 * *

Before: Slee ae se

Be.pock, P.J.; :

Cunisr, BRENNAN, Horxins and Munprr, JJ.

}

| Appeal (by pheniesion) from an order of ‘the Supreme “

_. Court at Special Term (Joseph F. Hawkins, J.), entered

p. a August 15, 1966, in Westchester County, . (ay: granting

<°* petitioners’ ‘application pursuant to CPLR, aticle 78, to.

annul appellant’s determination to institute pe aes pro-

——. to evict petitioners, unless appellant submit a

further return, and (2) directing that the summary pro-

ceedings be- stayed. pending a final determination of this

proceeding, on. condition that petitioners continue to pay

rent. sa

_—.

es. } |

Opinion of March 11, 1968

Bleakley, Platt, Schmidt, Hart & Fritz (John C.

Marbach of counsel), for appellant.

. Levine & Frost and Rudolph D. Raiford (Robert

P. Levine of counsel); for respondents. —

Horxtns, J.

The petitioners in. this proceeding under CPLR, article

78, are husband and wife and the tenants in a housing

project.owned and managed by the appellant, the Green-

burgh Housing Authority (hereafter called “Authority”). |

‘The Authority exists.as a public corporation through act

of the Legislature (Public Housing Law, sec. 3,-subdiv. 2;

sec. 457). The petitioners have occupied an apartment -

under a written lease since July 16, 1962.

The lease provides for a term of one month, to be auto-

matically renewed for successive terms on one month, un-

less terminated by either party upon giving one month’s

prior notice in writing. The rental i is stipulated at $66 a

month, which may be increased. 1 in the event that the peti-

tioners’ family income shall have increased beyond a cer-

| tain: ratio to that rental.

On March: 29, 1966, a written notice of endniiies of

the lease was given by the Authority to the petitioners,

effective April 30, 1966, ‘Phe notice states no reason for.

the termination. The petitioners did not comply with the

- notice and on May 3, 1966, the Authority commenced

summary proceedings to evict the petitioners in the Jus-

'__ tice’s Court of the Town of Greenburgh. This proceeding

_,to annul the determination of the Authority to evict the

petitions and to stay the summary erogetines followed

on May 12, 1966.

47a en ae

Opinion of March 11, 1968

The ‘petitioners | allege that: the regulations of the Au-

_ thprity establish a standard of eligibility and conduct for

continued occupancy. by its tenants, that is, so long as the

: tenants do not constitute a detriment to the health, safety

_and morals of their neighbors or to the community or an

adverse influence on sound family and community life, or

a source of danger to the ‘premises or the peaceful occu-

‘pation of other tenants. Further, they allege that, upon

receipt. of the notice of termination of their lease, the -

petitioner-wife was told by the attorney for the ay wets |

that she and the children of the family- would per-

mitted to remain as tenants, provided that she compel

her husband to leave the apartment and that she seek

public welfare assistance and an order of support by her

husband in the Family Court; and that she refused to

comply with this instruction. In further support of their

_ proceeding, the petitioners submitted an affidavit by their |

attorney who stated therein’ that the attorney for the .

_ Authority had refused to discuss the matter with him or

to give any reason for the eviction, other than the termina-

tion of the lease itself. 5 | aide

‘The Authority’s return alleges no reason for the ter-

mination of the lease; it admits that the petitioners’ at-

torney spoke to: its attorney, who informed the former.

_ that.the Authority was not required to give a reason for

the eviction. The Authority claims as a defense that the 2

notice validly terminated the lease and. that its deter-

mination ‘was -nejther @ judicial nor a quasi-judicial act

and hence not reviewable by the cogrt.

Special Term in effect granted the relief ‘sought by the

. petitioners, unless the Authority. submit an appropriate |

return stating the grounds for its determination. Special

Term reasoned ‘that the petitioners has. asserted grave

‘

‘6

ges

Opinion of March 11, 1968

pen of irresponsibility by ie Authority and that the

latter’s contention that its exercise of discretion to ter-

‘minate the lease was absolute dould not be sustained. By

6701, subdiv. [c]).

_ The Authority argues that the provisions in the lease

for its termination-are plain and binding on both parties —

and cannot be modified by the court. To interfere with

its determination by requiring an explanation, the Au- °

thority urges, imposes a burden not demanded from other

landlords and thus discriminates unfairly and invalidly

against it. On the other hand, the petitioners press on: us

_ the contention thatth@ Authority may not act arbitrarily

toward its tenants, for otherwise a tenant might be evicted

without cause or justification. .

‘We meet, then, the question of the nature of the. rela-

tignahip between a housing authority and its tenants. Orgi-

- narily, provisions in a lease permitting its termination,

‘ upon the service of a notice of a stated period are en-

‘forcible by the landlord at will (Zule v: Zule, 24 Wend.

16; ef. Metropolitan Life Ins. Co. v. Carroll, 43 Misc. 2d

693). The relationship between landlord and tenant is

considered contractual simply; and the terms of the lease

_. Mgor, termination, unless calling for a ‘reasonable basis for

action, may be exercised without explanation. But a hous- —

' ing authority is not an ordinary landlord, nor its lessees

ordinary tenants.

_Our constitution recognizes low rent housing as a proper

governmental function (N, Y. Const., Art. XVIII). The

Legislature, in response to its drietion, has enacted the

Public Housing Law. The statute empowers the construc-

tion of housing through the agency of authorities (Public

Housing Law, sec. 30), which may “appoint a general man-

49a.

> Opinion of March 11, 1968 eras iat

. ager (id., sec. 32), isles bylaws and Ee eae (id., ‘gee.

. 87, subdiv. 1, par. [w], and conduct hearings (id., sec. 3, —

subdiv:.1, par. [x]). ‘The authorities are empowered to

select tenants qualified as ‘persons of low income. (id., sec.

156), under leases which provide for rerits adjustable. ac-

cording to income (id., sec. 37, subdiv. 1, par: [k])-

Thus, our state has distinguished low rent housing as a_

human need to be satisfied through governmental action

and has created by specific statutory provisions the struc-

ture of the relationship between the housing authority.

_ and the tenant. The statute consequently enters into and |

becomes a part of the lease; and its spirit. and intent

must be the-guiding beacon in the interpretation of the

terms of. the lease.

3“ ‘Due process of law,’ is not confined to judicial pro- .

aii. but extends ‘to every case which may deprive a

citizen of life, liberty, or property, whether the proceed-

ing be judicial, administrative, or executive in its nature”

(Stuart v. Palmer, 74 N. Y. 183, 190-191). Once-the state

embarks into the area of housing as a function of govern-

ment, necessarily that function, like other governmental

functions, j is subject to the constitutional commands. Low

‘rent housing is not the leasing of government-owned prop- .

erty originally acquired for a different purpose, but now

surplus or not required for that purpose, on a sporadic

or temporary basis (cf. United States v. Blumenthal, 315

F’. 2d 351), where the traditiofial notions of private prop:

. erty might well be applied; rather, it imports a status of

a continuous character, bésed on the need of ‘the tenants

for decent housing at a cost proportionate to their income,

subject to the compliance by the tenants with reasonable

regulations and the payment of rent when due. “The

‘Government as landlord is still the government. - It must ~

ican |

er, Opinion of March 11, 1968

ot act arbitrarily, for, utilike private landlords, it is

subject to the requirements of due process of law” (Rudder |

LM, United States, 226 F. 2d 51, 53).

What may be complete freedom of action under: private

contractual arrangements falls to restricted action under

public honsing leases (cf. Housing Authority of City of —

Los Angeles v. Cordova, 130 ‘Cal. App. 2d 883, cert. den.

350 U.S. 969; Kutcher v. Housing Authority of City of

Newark, 20 N. J. 181; Chicago Housing Authority v. Black-

ah man,'4 Ill. 2d 319; Lawson v. Housing Authority of City

of Milwaukee, 270 Wis. 269; Edwards v. Habib, 227-A. 2d

388, D. C. App.). We think that a housing authority can-

‘not arbitrarily deprive a tenant of his right to continue

occupancy through the exercise of a contractual provision

to terminate the lease. In other words, the action of the

housing ‘Quthority must not rest on mere whim or caprice

or an arbitrary reason. :

Several considerations combine.to justify the difference .

_ in treatment between governmental agencies and private

individuals. Realistically, it must be acknowledged that

the housing authority prescribes the terms of the lease —

and that the tenant does not negotiate with the authority

in the usual sense (see Reich, The New Property, 73 Yale

L. J. 733, 749-752; Friedman, Public Housing and the

Poor: An Overview, 54 Cal. L: Rev. 642, 60; note, Govern-

ment Housing Assistance to the Poor, 76 Yale L. J. 508,

512). In this condition of affairs, to impose a require-

. ment of good faith and reasonableness on the party in the

stronger bargaining position when he exerts a contractual

option is but a reflection of simple justice (cf. N. Y. Cen-

tral Iron Works Co. v. United States Radiator Co., 174

N.Y: 331; Wood v. Duff- Gordon, 222 N. Y. - er

‘Bla

' Opinion of March 11, 1968

That requirement, even before the poe of housing as

a public function, was read into municipal agreements

aan with the use of governmental facilities (Gushee v.

City of N. Y., 42 App. Div. 37, 18; ef. Lincoln Safe De-

‘posit Co. v. City of N.'Y., 210 N. Y. 34, 40). - “In Gushee

(supra), thus, it. was said (pp. 48-49):

“But if at any time in the future it shall determine

_ in good faith to take away the restaurant, the plain-

' tiff must submit, because he takes his agreement sub-

ject to the power which the law has given to make

these regulations. Until, however; some such regula-

tion is made the plaintiff has the right to his contract

and to the protection of the court to prevent any

capricious or unnecessary interference with it.”

Moreover, in balancing the interests of the state against

the interests of the individual, the advantages to the.state—

are outweighed by the detriment to the individual, if we

were to deny the tenant protection from an arbitrary ter-

mination of the lease. The eviction of a family in the

‘income bracket eligible under the standards of public

housing from its household is a serious blow. If, in fact,’

a mistake has been made in the accusation against the .

tenant of improper coriduct or a violation of regulations,

or if the reason for the ouster has no better basis than ~

dislike or unjustified discipline, the requirement of the.

disclosure of the ground for the termination of the lease

affords the tenant the opportunity to- ‘protest its exercise.

On the-other hand, the authority will suffer no more than

delay in the ultimate eviction in the event the termination

of the lease is made on reasonable grounds; and in the

° meantime the authority may control excessive misbehavior |

of the tenant through police ‘action.,

. S2a

Opinion of March 11, 1968 ,

‘ The dedared purpose of the statute makes clear that

low rent housing was considered to be permanent and

not. transitory and that, so long as the tenants remain. .

qualified ‘and do not ‘violate the reasonable regulations

of the state agency; they would not be evicted for grounds

extrinsic to these requirements. So, the state policy was

established 4n- contemplation of “insanitary and substand-

ard ‘housing conditions owing to overcrowding and con-

centration of the population,” as a result of which “the

-construction of new housing facilities, under public super-

vision in accord with proper standards of sanjtation and

safety and at a cost which will permit monthly rentals

' which persons of low income can afford to pay” is neces-

,Sary; and it was acknowledged that “these conditions

require the creation of the agencies, instrumentalities and

' corporations, hereinafter prescribed, which are declared

to be agencies and instrumentalities of the. state for the

purpose of attaining the ends herein recited” -(Public

- Housing. Law, sec. 2).

To be sure, some state courts have held that a housing

agéncy may terminate a lease with a tenant with similar ®

provisions: in the same manner as a private landlord

(Housing Authority of City of Durham v. Thorpe, 267

N. C. 431, vacated and remanded 368 U. S. 670; Pittsburgh

Housing Authority v. Turner, 201 Pa. Super. 62; Colum-

} bus Metropolitan Housing Authority v, Simpson, 85 Ohio

App. 73; ‘Chicago Housing Authority v. Ivory, 341 Ik

“App: 282).. We think.that the better rule is that a

housing agency must have a reasonable ground for ;

mination. s)

In. Thorpe (supra), the pétitioner was a tenant ina

federally-assisted public housing project. in North Caro-

lina, The lease was terminable by eifher party upon fif-. -

¥ ys

58a.

Oviitiin of March 11, 1968 -

teen aie notice. The petitioner was elected president of

a tenants’ organization about a. year after the beginning

of occupancy. The housing authority on the day follow-

‘ning the: election gave notice of termination. It refused to

give any reason to thé petitioner for the termination.

Thereafter it brought. eviction proceedings agaimst her.

In the proceedings it was stipulated that the ‘authority

had not terminated the tenancy bécause of the petitioner’s

election as president of the tenants’ organization, but the

‘stipulation did not state the reason-for the termination.

ment in favor.of the authority, saying that it was, imma-

terial what may have been the reason for the authority’s

-disinclination to.continue the petitioner’s occupancy.

The Supreme Court of the United States vacated the.

judgment and remanded the proceedings to the cdurts of

North Carolina. The majority of the court found that a

directive issued by the Federal Department of ‘Housing:

. and Urban Development subsequent to the notice of ter-

‘mination had stated that it was essential that no such

notice should be given unless the tenant be teld the rea-

son for his eviction; and held that the procedure pre-

‘scribed by. the directive governed the disposition of the

‘appeal. It is implied by the decision that the petitioper —

. should be accorded on the remand the. treatment pro-

vided by the directive. In a concurring opinion, Mr. Jus-

tice Douglas held that the North Carolina courts should.

determine the reason for the petitioner’s eviction. Thus,

he said (386 U.S. 670, 678): >

“Over and over again we have stressed that ‘the

* nature and the theory of our institutions of govern-

ment, the principles upon which they are supposed

to rest . . . do not mean’to leave room for the play

TRAIT: SMENIEESS a . -

A Coen - ofa

<. , Opinion of March i1, 1968

and action of purely personal arid arbitrary power’

(Yick Wo v.. Hopkins, 118 U.S.: 356, 369-370) and

i «that the essence of due pracess is “ihe pretection of

the individual agaist arbitrary action’ (Ohio . Bell Tele-

phone Co. v. ‘Public, Utilities» Comm'n, 301 U. 8. 292

- 302; Slochower v. Board. of Edwation, 350. U.S. 5651,

_ -559). Any. suggestion to the contrary ‘resembles the .

° ’ philosophy of feudal tenure’ (Reich, The New. Prop-

‘ erty, 73 Yale L. J. 733, 769). It is not dispositive to

maintain that a private landlord might terminate a

lease at his pleasure. For this is government we are

dealing with, and the actions of government are. cir-

cumscribed by the Bill of Rights. and the Fourteenth -

Amendment. “The government as landlord is still the

government. It. must not act arbitrarily, for, unlike ~

: *private landlords, it is subject. to the requirements

of due process of law. Arbitrary ‘action is not due

process’ (Rudder * v. Umited States, 96 US. App. D. ~

329, 331, 226 F. 2d 51, 58). , =

Again, hé said id, » Bp. 679- 681) :

“This does not. mean that a public. Sonalinis author-.

ity is powerless to evict a tenant. A tenant may be

ewicted if it is shown that he is destroying the fix-

_ tures, defacing the walls, disturbing other tenants by

boisterous conduct and for a number of other reasong .

_-which impair the successful operation of, the housing

project. Eviction for such, reasons’ will completely |

protect the viability of the housing project without

making the tenant a serf. who-has a drome at. the

pleasure of the manager of the project or the rneneng a

‘a er

me Gs _.. * Opinion of March #1, —

aon z ee | = 2

“Here, the Superior Court found that petitioner ~

-. had mot -been evicted because she had engaged in ef- <

forts to organize the ten@ats of the housing:project or

because she had been elected president of the Parents’

-- Club. On appeal to the North Carolira Supreme Court,

petitioner contended that the finding was. erroadus.

The State Supreme Court did not. -pass on the finding

of the Superior Court since it concluded that the

Housing Authority could terminate tle leasé and

_ evict petitioner for any reason. As I have said, it *"

is argued- that the circular of the Department of

Housing and Urban ‘Devélopment answers petitioner’s |

claint that she was entitled to an administrative hear-:

ing before her lease was terminated. But: petitioner -

has already had a hearing in the state courts. And

the. status. of the circular, whether a regulation or:

- only a.press release, is- uncertain, an uncertainty which

the Court does not remove. Vacating and’ ‘remanding .

; ‘for such further proseedings as may be si ig

a light of the .-.. circular’ therefore furnish

guidelines for the state courts on remand, and “does .

not dispose of the basi¢e issue presented. I would

vacate and refnand to the state courts to determine .

the precise réason why petitioner was evicted and | ~

whether that reason was within the permissible: range —

for ate action against the individual.’ ak

. The Authority here’ notes that it is not subject to fed-

eral supervision, as no federal funds were received:.as_

assistance in the project, and argues that the suggested

procedure is therefere not applicable to it. Strictly speak-

ing, this is so, but, we do not believe that it makes a

material difference in the result. The rights of the peti-

Peete ‘ idee F x : : fe as ;

» ns 2 . : . ee : re ;

56a ;

R , 4 ¢

Opinion of March Sa Neca sights

tioners should be’ safeguarded to prevent the use of arbi-

trary power.

Doubtless, there exist areas of such sannitivity in the

relations between state and individual that rules of finality

.. will be enforced, even .as against the ‘charge of, arbitrari- ’ Nei

ness—i.e., eminent domain, taxation and tariffs. 'But, even |

in such eases, the circumstances dictate the effect ‘to be |

given to the constitutional’ rights. “It. . [the court] has.

.4 .weighed the®relative values of constitutional rights, the

- essentials of powers conferred, and the need of protect- °

ing both” (St. Joseph Stock. Yards Co. v. United States,

- 298 U.S. 38, 81 [concurring opinion of Mr. Justice Bran-

eis]). THe unrestricted exercise of power by administra-

tive’ officials has increasingly been: made. the subject of

‘judicial scrutiny (cf. Sleepy. Hollow Val. Committee v. |

McMorran, 20 N. Y. 2d 190; Matter of Brown v. McMorran, my

23 A. D. 2d 661). *

Once the field of housing: ¢ as a utility -has been encom- -

passed by the state, we think that the traditional” protec-

tion against the caprice of state agencies must: be pre- ty

served. “Discretionary administrative power over See

vidual rights . . . is undesiyable per se, and should be, .

. avoided as far gs may be, tor Wigerétion ix is unstandardized

power atid to lodge in .an official such power over person

or ‘property. is hardly conformable to the ‘Rule of Law’ ”

. (Freund, Historical ‘Survey in. Growth .of America, Ad-

ministrative Law,’ pp.- 22-23). ; a |

The order below should be affirmed, with $10 costs (anid

disbursements. : ‘

Brennan and Muuder, JJ., concur. °,

eo oe

Opinion of March 11, 1968

Besnoox, P.J. (Udeentae)— * ;

The basic issue raised by this proceeding is whether x

' + public corporation, such as the appellant Greenburgh Hous-

ing Authority, may assert the same right. as a private

corpe ation or individual to terniinate a month-to-month

tenancy, pursuant to the provisions of the operative lease,

without giving a reason for its action. —

- The majority of this court concedes that if the appellant

. Pre were a private landlord there: would .be no question that

‘ the lease between the parties could be terminated, with-

. out reason, by virtue of its provisions allowing termina- ° .

tion by’ the giving of the required notice - ‘by either party.

. _Although I am in sympathy with the plight of the peli. =

’ tioners if they are to be evicted from their apartment,

nevettheless, I am of the opinion that, it the absence of

a cledr expression of legislative intent to the contrary, if

the Authority is under no.obligation to give a reason in

support of its determination to terminate the tenancy. It

was said in Brand v. Chicago Housing Authority (120 F.

2d 786, 789): “We do not doubt, as-pointed“out by plain-

- tiffs, but that. their eviction wil] result in hardships. This

is a result which inevitably follows upon the termination

of any lease which, by its terms,.has been advantageous

to the lessee. Such a consequence, however, regrettable

as it is, can not determine the rights of the parties as

fixed by law and the terms of the lease.”

In ‘my opinion, the public nature of :the Authority’s, ac!

a tivities and purposes does not affect its: right -to rely » on:

| ee the express provisions of the lease. There is no obligation ;

; either under the terms of the ‘lease or by statutony Or ..

constitutional Jaw which compels the Authority to give.

reasons for the termination of the lease. The petitioners’

position rests largely on the underlying premise, although

wen

58a

Opinion of March 11, 1968 ; _w@

not. specifically urged, that by reason of their acceptance ’

as tenants they acquired a vested property right which

could not, be destroyed by what is claimed to have been .

the unreasonable and arbitrary act of the- Authority in - !

terminating the lease without giving the reasons therefor. )

_ However, the petitioners have’ no inherent right ta-the

i continuation of their tenancy in the public housing proj-

- eet: Any property rights acquired by them were circum- |

scribed by the terms and conditions of the lease upon

which they were founded. “It.is our opinion that ‘this

_ provision with reference to the termination of the tenancy

is-valid and binding upon plaintiffs in the same manner =

_. @& though the lessor had been a private person ‘rather

than a Governmental Agency” (Brand v. Chicago H ousing ;

Authority, 120. F. 2d 786, 788, supra; -_" v. United fy

” States, 292 ELS. 571). aaa

I do not. believe that the Ligtelatore, in enacting the

‘Public Housing Law, intended that a housing authority

be required to give notice of the reasons.for the termina-.

~ tion, of a lease whenever it exercises its right .to terminate

a month -to-month tenancy pursuant to the provisions of a

a written lease. .On. the contrary, if a housing authority | if

_ were: compelled to submit to interrogation and investiga- _ .

tion of its reasons for desiring possession of its property .

at the expiration of each tenant}s lease, it would place. .

an unreasonable restraint on its powers and make it more )

—difficult for it to carry out the policies declared by the | |

_ Legislature (Housing Authority of City of Pittsburgh v. .. | }

” Turner, 201 Pa. Super. 62, 191 A. 2d 869). |

' In Thorpe v. Housing Authority of City of Durham 7

(386 U.S. 670), the Supreme Court of the United States nx I

failed to reach the constitutional issues now raised by | |

Po RRR

59a ° ma

int Opinion of March 11, 1968

the petitioners.. The Stepan Court ieee the ~~

of the state court on-the ground that after certiorari had

been granted: the- United States Department of Housing ~

and Urban Development issued -a circular to local hous-

ing authorities which required federally-assisted housing

authorities (not herein invofved) to ‘disclose the reasons _-

for the termination of leases of their tenants; and held

.. that the procedures described in the circular should be

followed in that cage. With respect to the petitioner’s

setting forth the reasons for the termination of ‘her lease,

and a hearing thereon, the court stated at pages 671-672: - -

“We find it unnecessary to reach the large issues stirred

by these claims, because-of a.significant development. that

_ has occurred since we granted the. writ of certiorari.”

In the absence of any controlling judicial authority to.

the contrary, I am of the opinion that ythe | petitioners

have’ not been ‘denied due process or deprived of any.

constitutional right. by reason ‘of the actions of the Au-

thority herein. Accordingly, I would reverse the order

_ under review, dismiss the proceeding on the merits, and —

confirm the determination of the Greenbiirgh Housing Au-

thority. - . °

, Christ, J., concurs,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.