Evicting Bad Guys from Rental Housing
There have been some questions in the industry regarding which Crime Free addendum should be used by Arizona landlords. Apparently there are two versions floating around. However, there are only two (2) official versions of the Crime Free addendum for private housing. Now that H.R. 69 was voted down in committee, public housing authorities are still mandated to use the housing and urban development version of the Crime Free addendum, which is actually contained in, and is part of, the government subsidized lease.
On January 6, 2009, House bill 69 was introduced under the Bush administration to change the Clinton/Rehnquist “one strike you’re out” legislation and Supreme Court ruling. H.R. 69 would have been used to gut the law upon which HUD v. Rucker ruling was based, changing “one strike you’re out” to what is commonly referred to as the “innocent tenant” rule. Remember the Crime Free addendum in private housing mimics the Crime Free language of Jack Kemp, who was the Secretary of HUD under Ronald Reagan. In 1992, when Tim Zehring created the Crime Free programs, that same HUD language was used in the development of the private Crime Free addendum.
In 1988, Henry Cisneros, who was appointed Secretary of Housing and Urban Development, was the person who had the original Jack Kemp rule amended giving local housing authorities sweeping power and more control for living environments. In March 1996, one strike you’re out guidelines gave public housing administrators greater ability to screen and evict tenants involved in crime. President Clinton sent a message that, “If you mess up your community, you have to turn in your keys; if you insist on abusing or intimidating or hurting other people you will have to live somewhere else.” Clinton said, “I know that for some, one strike you’re out sounds like hard ball. Well, it is. This is because it is morally wrong for criminals to use up homes that could make a big difference in the lives of decent families.” Therefore, the original language of the Crime Free addendum that stated, “Resident and Resident’s Occupants, whether on or near of the property…,” for public housing changed to “on or off”. The Crime Free programs did not change its addendum at the same time.At the 2009 International Conference the Crime Free Addendum was amended to read “on or off’” instead of “on or near,” for private housing as well as public housing.
In his 2003 Supreme Court ruling, Judge Rehnquist made it very plain 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 off such premises, engaged in by public housing tenant, any member of the tenants household, or any other person under the tenants control, shall be cause for termination of tenancy.” He further stated that,”… public housing tenants are obligated to assure that a tenant, any member of a household, a guest, or any person under the tenants control shall not engage in any drug related criminal activity on or near the premises.” He also indicated that “control” meant giving “access” to the premises to another. Judge Rehnquist’s opinion stated that the Crime Free Addendum language is reasonable and constitutional to evict even when the tenant does not know about criminal activity of their occupants or guests. Judge Rehnquist also stated, “such “no fault” eviction is a common incident of tenant responsibility under normal landlord-tenant law and practice.” He stated, “Strict liability maximizes deterrence and eases enforcement difficulties.” He also stated that, “With drugs leading to murders, muggings and other forms of violence against tenants, and to the deterioration of the physical environment that requires substantial government expenditures, it was reasonable for congress to permit no fault evictions in order to provide public and other federally assisted low income housing that is decent, safe and free from illegal drugs.”
Well, that is exactly the same argument for private housing. Since private housing is not as regulated as public housing the parties are free to enter into a Crime Free contract. The Crime Free Addendum has always been an enforceable agreement. The Crime Free addendum has been working well in the private sector since its inception in 1992. The key for private owners is to use the Crime Free addendum as it was intended; for material breaches involving criminal activity. But, because some judges have difficulty in determining what the word “near” means, the International Crime Free Association changed the wording of the Addendum to be consistent with public.” Arizona is the only State that will not change to “on or off”. Arizona will remain “on or near”. The reason for this is due to the Arizona statute provisions of the Arizona Residential Landlord and Tenant Act. Ironically, in 1995 when a large portion of the Crime Free addendum was added into Arizona statue, in A.R.S. 33-1368 A, at the same time A.R.S 33-1368 G was also added, which states:
For the purpose of this chapter, the tenant shall be held responsible for the actions of the tenants guest that violate the lease agreement or rules and regulations of the landlord if the tenant could reasonably be expected to be aware that such actions might occur and did not attempt to prevent those actions to the best of the tenants ability.
Obviously, this section had the unintended negative consequences. This provision almost completely negates the one strike you’re out languageH.R. 69 would have done had it passed. Nonetheless, until the Arizona Residential Landlord and Tenant Act is amended, Arizona will be less than effective in its overall fight against criminal activity.
Author Resources: Denny Dobbins is General Legal Counsel and the Assistant Executive Director for The International Crime Free Association, a leading expert and educator of police departments, police officers and property owners in the detection and deterrence of criminal activity and protection from liability for the criminal acts of third parties regarding tenants, contractors and vendors. Denny is an accomplished National and International speaker on Crime Free Principles and Premises Liability Protection.
