                   IN THE COURT OF APPEALS OF TENNESSEE,
                                AT JACKSON

                                                                  FILED
             _______________________________________________________

                                    )                                 July 29, 1999
MEMPHIS HOUSING AUTHORITY, )              Shelby County Circuit Court
                                    )     No. 94425 T.D.           Cecil Crowson, Jr.
   Plaintiff/Appellee.              )                            Appellate Court Clerk
                                    )
VS.                                 )     C.A. No. 02A01-9812-CV-00356
                                    )
TARA THOMPSON,                      )
                                    )
   Defendant/Appellant.             )
                                    )
______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.
Honorable Robert A. Lanier, Judge



Brenda Oates-Williams,
MEMPHIS AREA LEGAL SERVICES, INC., Memphis, Tennessee
Attorney for Defendant/Appellant.


Gregory L. Perry, Memphis, Tennessee
Attorney for Plaintiff/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                          FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
               In this unlawful detainer action, Defendant Tara Thompson appeals the trial court’s

judgment granting the motion for summary judgment filed by Plaintiff/Appellee Memphis Housing

Authority (MHA) and issuing a writ of possession in favor of MHA. We affirm the trial court’s

judgment based upon our conclusion that MHA properly terminated Thompson’s lease after she

violated the lease provisions by failing to cause one of her guests to refrain from engaging in drug-

related criminal activity in her apartment.



               MHA is a public housing authority within the meaning of the United States Housing

Act. See 42 U.S.C.A. §§ 1437--1440 (West 1994 & Supp. 1999). MHA receives much of its

funding through a subsidy from the United States Department of Housing and Urban

Development (HUD), and its operation is governed by federal law and by HUD rules and

regulations.



               In 1988 and again in 1990, the United States Congress amended the Housing Act to

address the problem of illegal drug activity and other criminal activity on public housing premises.

As amended, the Act required public housing authorities to use leases which provided that



               any criminal activity that threatens the health, safety, or right to
               peaceful enjoyment of the premises by other tenants or any drug-
               related criminal activity on or near such premises, engaged in by a
               public housing tenant, any member of the tenant’s household, or any
               guest or other person under the tenant’s control, shall be cause for
               termination of tenancy.



42 U.S.C.A. § 1437d(l)(5) (West 1994). Congress again amended the Act in 1996 to refer to any

drug-related criminal activity “on or off such premises” rather than “on or near such premises.” 42

U.S.C.A. § 1437d(l)(6) (West Supp. 1999) (emphases added).



               Pursuant to Congress’s directive, MHA required its public housing residents to sign

lease agreements containing the following provisions:



               7.      OBLIGATIONS OF RESIDENT
                       Resident Agrees:

                       ....
                      M.     To refrain from illegal or other activity which impairs
              the physical or social environment of the development, and cause
              other persons who are on the premises with the resident’s consent to
              refrain from illegal or other activity which impairs the physical or
              social environment of the development or interferes with the health,
              safety or right of peaceful enjoyment of the premises by other
              residents.

                      N.      To refrain from and cause household members, guests
              or persons under the resident’s control [to refrain] from engaging in
              any criminal activity or unlawful activity that threatens the health,
              safety or right to a peaceful enjoyment of [MHA’s] public housing
              premises by other residents or employees of [MHA] which includes
              but is not limited to any drug related criminal activity on or off the
              premises;

                      ....

              15.     TERMINATION OF THE LEASE

                       Management shall not terminate or refuse to renew the lease
              other than for serious or repeated violations of the material terms of
              the lease, . . . such as failure to make payment due under the lease or
              to fulfill the resident’s obligations set forth in Section 7, or for other
              good cause. The resident agrees that the violation of any of the
              obligation of residents A thru W is a serious violation of a material
              term of the lease, and is good cause for termination of the lease.

                      Either of the following types of criminal activity by the
              resident; any members of the household, a guest, or other person
              under the resident’s control, shall be cause for termination of tenancy
              and such termination shall be excluded from resident’s right to a
              grievance hearing.

                      A.     Any criminal activity or unlawful activity that
              threatens the health, safety or right to peaceful enjoyment of the
              premises of the residents or employees of [MHA].

                      B.      Any drug related criminal activity on or off the
              premises or alcohol abuse which interferes with the health, safety or
              right to peaceful enjoyment of the resident. The resident agrees that
              any drug related criminal activity on or off the premises interferes
              with the health, safety, or right to peaceful enjoyment of the premises
              by other residents and is not conducive to maintaining [MHA] Public
              Housing Development in a decent, safe, sanitary and crime-free
              environment and creates a threat to the health and safety of other
              residents.



              Tara Thompson and her three children live in MHA’s Fowler Homes Housing

Development. In order to obtain housing in Fowler Homes, Thompson signed a Dwelling Lease and

Lease Addendum with MHA that contained the foregoing provisions.



              On February 6, 1998, Thompson saw Tallen Williams, the father of her youngest

child, “hanging out” at Fowler Homes. At Thompson’s request, Williams agreed to go to
Thompson’s apartment to watch her children while she went to do laundry. While Williams was in

Thompson’s apartment, officers of the Memphis Police Department, acting pursuant to a search

warrant, raided the apartment, found 0.4 grams of cocaine in Williams’ possession, and arrested him.



               Thompson had no prior knowledge of Williams’ illegal drug activity. Thompson

knew that Williams had been jailed in December 1997 for violating the terms of his probation, but

Thompson did not know the nature of the underlying offense for which Williams was serving

probation. Thompson did not ask Williams why he was on probation, and Williams did not

volunteer this information.



               Despite Thompson’s lack of prior knowledge of Williams’ illegal drug activity, MHA

notified Thompson that it was terminating her lease based upon her violation of the lease provisions

prohibiting drug-related criminal activity on the premises. When Thompson failed to vacate the

apartment, MHA brought this unlawful detainer action against her.



               This action initially was tried in the General Sessions Court, where a judgment for

possession was entered in favor of MHA. After Thompson appealed the judgment to the Circuit

Court, MHA moved for summary judgment, contending that, as a matter of law, it was entitled to

terminate Thompson’s lease based upon her violation of the lease provisions prohibiting drug-related

criminal activity on the premises. The trial court initially denied MHA’s motion; however, upon

MHA’s motion for reconsideration, the trial court granted MHA’s motion for summary judgment

and issued a writ of possession in favor of MHA.



               On appeal, Thompson contends that the trial court erred in entering a judgment in

favor of MHA when the record contained no evidence that Thompson was at fault in allowing

Williams to possess illegal drugs in her apartment. Specifically, Thompson asserts that the record

contained no evidence that she either knew about Williams’ illegal drug activity or had the ability

to control Williams’ conduct.



               We conclude that this argument lacks merit. In construing similar lease provisions,

courts in other jurisdictions have ruled that a public housing authority may evict a tenant without
presenting proof that the tenant knew of or had the ability to foresee or control the illegal activity of

a household member or guest. In City of South San Francisco Housing Authority v. Guillory, 49

Cal. Rptr. 2d 367, 369 (Cal. App. Dep’t Super. Ct. 1995), the lease provision at issue required the

tenants to “assure that the tenant, any member of the household, a guest, or another person under the

tenant’s control, shall not engage in . . . [a]ny drug-related criminal activity on or near the premises.”

Citing this provision, the housing authority filed an unlawful detainer action against the tenants after

a lawful search of their apartment revealed narcotics in their son’s bedroom. In pursuing its unlawful

detainer action, the housing authority stipulated that it could produce no evidence that the tenants

“knew of, controlled, acquiesced in, or had reason to know” of their son’s possession of narcotics.

Guillory, 49 Cal. Rptr. 2d at 369. Despite this stipulation, the trial court entered a judgment for the

housing authority, ruling that it properly terminated the tenants’ lease “based solely on the fact that

narcotics were found in the apartment.” Id. at 370.



                In affirming the trial court’s judgment, the appellate court first rejected the tenants’

argument that the subject lease provision was ambiguous:



                This argument has no merit.

                        The language of the lease with respect to drug use and
                possession on public housing premises is clear and unambiguous.
                The terms of paragraph 11(o) of the lease have a plain and obvious
                meaning. By signing the lease with [the housing authority], [the
                tenants] agreed to assure that no drugs would be possessed or used on
                their premises by any member of their household. There is no
                ambiguity in what [the tenants] were obligated to do, particularly
                when paragraph 11(o) of the lease is read in conjunction with the
                other lease provisions which also clearly and explicitly prohibit drug-
                related activity. The lease between [the tenants] and [the housing
                authority] is therefore a valid contract. The facts as stipulated in the
                court below demonstrate [the tenants] violated that contract. [The
                housing authority], acting pursuant to the contract, acted within its
                lawful authority in enforcing the contract by evicting [the tenants].



Guillory, 49 Cal. Rptr. 2d at 370. The appellate court also rejected the tenants’ argument that they

could not be evicted unless they had knowledge of or the ability to foresee their son’s criminal

conduct:



                [The tenants’] argument overlooks the fact that [they] were evicted
                for failure to assure that no drug-related criminal activity occur in
               their premises. [The tenants] were not evicted for the conduct of
               [their son]. The eviction was based on [the tenants’] failure to assure
               that illegal drug-related conduct did not take place in their household.



Id. at 372.



               In Housing Authority of New Orleans v. Green, 657 So. 2d 552, 553 (La. Ct. App.),

writ denied, 661 So. 2d 1355 (La. 1995), cert. denied, 517 U.S. 1169 (1996), the lease provision at

issue prohibited the tenant, any member of the tenant’s household, or a guest or other person under

the tenant’s control from engaging in criminal activity, including drug-related criminal activity, on

or near the housing authority’s premises. The housing authority brought eviction proceedings against

the tenant after illegal drugs were found in her apartment. The proof at trial established that the

drugs belonged to an acquaintance of the tenant’s daughter. Although the housing authority did not

prove that the tenant had any knowledge of the presence of the drugs in her apartment, the trial court

entered a judgment evicting the tenant.



               The appellate court affirmed the trial court’s judgment of eviction, specifically

rejecting the tenant’s argument that the trial court erred in evicting her when the housing authority

failed to prove that she had knowledge of the illegal drugs in her apartment or that she had control

over the actions of her daughter’s acquaintance. As did the Guillory court, the appellate court found

the lease provision’s anti-drug language to be “clear and unambiguous.” Green, 657 So. 2d at 555.

Upon examining this and other lease provisions, the court concluded that the lease contained no

knowledge requirement:



               [W]here Section 15 of the lease refers to “a guest or other person
               under the tenant’s control” it means that the tenant “controls” who
               has access to the premises. The lease makes the tenant responsible
               for the drug activities of those persons given access to the apartment
               by the tenant. “Control” as used in the lease in no way implies that
               the tenant knew or should have known of the drug activity, and there
               is no other provision in the lease that would make tenant knowledge
               of drug activity a necessary precondition of eviction.



Id. at 554. The court also refused to read such a knowledge requirement into the language of the

Housing Act, as amended in 1988 and 1990, upon which the housing authority had based the subject
provision. The court explained:



               Knowledge requirements in statutes are so common in general and so
               obviously relevant to this particular issue that we reject the argument
               that Congress either failed inadvertently to include a knowledge
               requirement, somehow included it by implication, or said “control”
               but really meant knowledge.



Id. (citing 42 U.S.C.A. § 1437d(l)).



               In accordance with these authorities, we hold that the trial court properly entered

summary judgment in favor of MHA in this unlawful detainer action against Thompson. The lease

provisions relied upon by MHA required Thompson to cause household members, guests, or persons

under her control to refrain from any criminal activity that threatened the health, safety, or right to

peaceful enjoyment of the premises by other tenants. In executing the lease and addendum,

Thompson agreed that the activity prohibited by these provisions included any drug-related criminal

activity on or off the premises. Thompson also acknowledged that any such criminal activity by a

member of her household, a guest, or other person under her control would constitute good cause

for termination of the lease and her tenancy.



               The language of these provisions is clear and unambiguous. By signing the lease with

MHA, Thompson agreed to cause her guests, such as Williams, to refrain from engaging in any drug-

related criminal activity while on the premises. Thus, the lease provisions placed upon Thompson

the affirmative obligation to ensure that her guests did not engage in drug-related criminal activity

while in her apartment. In light of the affirmative nature of this obligation, Thompson’s actual or

constructive knowledge of Williams’ drug-related criminal activity was irrelevant. Regardless of

her knowledge of Williams’ drug activity, under the terms of her lease, Thompson became

responsible for such activity once she granted Williams access to her apartment.



               Even when viewed in the light most favorable to Thompson, the evidence presented

below demonstrated that Thompson violated her lease with MHA when she granted Williams access

to her apartment and subsequently failed to cause Williams to refrain from possessing illegal drugs

while in the apartment. Under these circumstances, MHA had the right to enforce the lease
provisions by evicting Thompson.



               In contending that an eviction requires a showing of some degree of fault on the part

of the tenant, Thompson cites authorities indicating (1) that a housing authority should exercise its

discretion in light of all the relevant circumstances when it decides whether to evict a tenant for

criminal activity, (2) that the relevant circumstances include, inter alia, the tenant’s knowledge of

the criminal activity and the tenant’s efforts to prevent the activity, and (3) that the housing

authority’s decision is subject to review by the courts.



               In its report accompanying the 1990 amendments to the Housing Act, for instance,

the congressional committee included the following statements:



               The Committee anticipates that each case will be judged on its
               individual merits and will require the wise exercise of humane
               judgment by the [housing authority] and the eviction court. For
               example, eviction would not be the appropriate course if the tenant
               had no knowledge of the criminal activities of his/her guests or had
               taken reasonable steps under the circumstances to prevent the activity.



S. Rep. No. 101-316, at 179 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5941. Moreover, a HUD

regulation provides that, in deciding whether to evict for criminal activity, a housing authority



               shall have discretion to consider all of the circumstances of the case,
               including the seriousness of the offense, the extent of participation by
               family members, and the effects that the eviction would have on
               family members not involved in the proscribed activity. In
               appropriate cases, the [housing authority] may permit continued
               occupancy by remaining family members and may impose a condition
               that family members who engaged in the proscribed activity will not
               reside in the unit.



24 C.F.R. § 966.4(l)(5)(i) (1998). Finally, HUD’s “One Strike” policy contains the following

statements:



               [Housing authorities] retain the flexibility to handle these cases on an
               individualized basis, and they should exercise reasonable discretion
               in light of all the relevant circumstances. In particular, when a tenant
               has taken all reasonable steps to prevent the criminal activity, eviction
               may not always be warranted or proper. To ensure both humane
               results and success in court, [housing authorities] should undertake
               a case-by-case analysis before proceeding with eviction. If they do
               seek eviction, [housing authorities] should be prepared to persuade a
               court that eviction is justified.



Syracuse Hous. Auth. v. Boule, 658 N.Y.S.2d 776, 780 (Syracuse City Ct. 1996) (quoting HUD’s

“One Strike and You’re Out” statement of policy in public housing issued in March 1996), aff’d, 676

N.Y.S.2d 741 (Onondaga County Ct. 1998). Relying upon these authorities, some courts have held

that a tenant may be evicted for the drug-related criminal activity of a guest or household member

only if the tenant is personally at fault for the criminal activity, such as where the tenant had

knowledge of the criminal activity or where the tenant failed to take reasonable steps to prevent the

activity. See Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68, 72 (N.C. Ct. App. 1995); see also

Syracuse Hous. Auth. v. Boule, 658 N.Y.S.2d 776, 780 (Syracuse City Ct. 1996), aff’d, 676

N.Y.S.2d 741 (Onondaga County Ct. 1998).



               We decline to adopt such a standard in this case. As we previously discussed, the

language of the lease signed by Thompson was clear and unambiguous. The lease included no

knowledge requirement but instead placed upon Thompson the affirmative obligation to cause her

guests to refrain from engaging in illegal drug activity while on the premises. Moreover, the

language of the Housing Act contained no such knowledge requirement. As one appellate court

observed, “[t]hat a Congressional committee may not have intended for tenant evictions to take place

in the absence of knowledge, does not change the fact that when the Congress as a whole enacted

[the 1990 amendments to the Housing Act] it did so without the imposition of a knowledge

requirement.” Housing Auth. of New Orleans v. Green, 657 So. 2d 552, 554 (La. Ct. App.), writ

denied, 661 So. 2d 1355 (La. 1995), cert. denied, 517 U.S. 1169 (1996).



               We further note that, although HUD regulations appear to grant housing authorities

the discretion to evict tenants based on the criminal activity of their guests or household members,

courts and other legal authorities have begun to question the extent to which courts may review a

housing authority’s exercise of that discretion. In refusing to inquire into a tenant’s knowledge of

or ability to foresee the criminal activity of her son, for example, the Supreme Court of Minnesota

opined that
                       [d]espite HUD’s careful clarification of [housing authority]
               responsibilities, the regulations do not give courts similar discretion
               when hearing evictions involving the criminal acts of household
               members. Rather, when discussing the role of courts in such
               evictions, HUD regulations require only that courts provide due
               process. In light of HUD’s careful crafting of the [housing
               authority’s] role in eviction decisions, HUD would likely have spelled
               out any additional supervisory responsibilities it wished courts to
               take. Thus, HUD regulations, while providing tenants access to trial
               courts, do not empower trial courts to consider external circumstances
               in eviction proceedings.

                       ....

                       . . . [A] lease is a form of contract. Unambiguous contract
               language must be given its plain and ordinary meaning, and shall be
               enforced by courts even if the result is harsh. When a lease
               empowers a landlord to evict for certain actions, then the trial court
               shall determine de novo whether the facts alleged in the complaint are
               true and whether those facts, under the terms of the lease, support
               termination of the lease and eviction.



Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 703-04 (Minn. 1999) (footnotes omitted)

(citing 24 C.F.R. § 966.4(l)(3)(v)(B)); see also William F. Maher, Wisdom Revisited: Judicial

Intervention and the Exercise of Discretion in “Strict Liability” Public Housing Evictions, J.

Affordable Hous. & Community Dev. L., Spring 1998, at 218, 221-26.



               Under this limited scope of review, the trial court’s only role in this unlawful detainer

action was to determine whether Williams engaged in drug-related criminal activity while he was

on the premises as Thompson’s guest and, thus, whether the lease provisions prohibiting such

criminal activity were breached. In light of the parties’ stipulation that Williams was arrested for

possession of cocaine while in Thompson’s apartment at her invitation, we conclude that the trial

court properly entered summary judgment in favor of MHA.



               The trial court’s judgment is affirmed, and this cause is remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to Ms. Thompson, for which

execution may issue if necessary.



                                                       ____________________________________
                                                       FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
HIGHERS, J. (Concurs)
