Memphis Housing Authority v. Tara Thompson

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 16, 2000 Session Heard at Jackson1

MEMPHIS HOUSING AUTHORITY v. TARA THOMPSON

Appeal by permission from the Court of Appeals, Western Section
Circuit Court for Shelby County
No. 94425-T.D.-7 Robert A. Lanier, Judge

No. W1998-00108-SC-R11-CV - Filed February 20, 2001

The appellee, Memphis Housing Authority brought this unlawful detainer action seeking to
evict the appellant, tenant Tara Thompson, after drugs were discovered on the father of her child
while he was inside her apartment. The trial court granted summary judgment to the appellee, and
the Court of Appeals affirmed, finding that the lease agreement imposes strict liability upon the
appellant for the drug-related criminal activity of her “guests and other persons under her control.”
We granted permission to appeal to consider the appropriate standard that applies when a public
housing authority seeks to evict a tenant for drug-related criminal activity. This is an issue of first
impression in Tennessee. After due consideration, we hold that the lease agreement imposes strict
liability for drug-related criminal activity engaged in by the tenant or any household member but
permits eviction for the drug related criminal activity of “guests and other persons under [the
tenant’s] control”only if the tenant knew or should have known of the drug-related criminal activity
and failed to take reasonable steps to halt or prevent the illegal activity. Accordingly, we reverse the
judgment of the Court of Appeals and remand this case to the trial court for reconsideration of the
appellee’s motion for summary judgment under the legal standard announced herein.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed;
Case Remanded to Trial Court

FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Webb M. Brewer, Debra N. Brittenum, Margaret Barr-Myers, Nancy Percer Kessler, and Brenda
Oates-Williams, Memphis, Tennessee, for the appellant, Tara Thompson.

Gregory L. Perry, Memphis, Tennessee, for the appellee, Memphis Housing Authority.

1
Oral argument was heard in this case on November 16, 2000, in Jackson, Madison Co unty, Tennessee, as part
of this Court’s S .C.A.L.E.S . (Supreme Court Advancing Legal Education for Students) pro ject.
Drake Holliday, Legal Aid Society of Middle Tennessee, Nashville, Tennessee and David
Kozlowski, Legal Services of South Central Tennessee, Incorporated, for the Amicus Curiae,
Tennessee Association of Legal Services.

OPINION

Background
On October 17, 1997, the appellant, Tara Thompson, executed a lease and began residing in
an apartment in the Fowler Homes Housing Development (“Fowler Homes”). Fowler Homes is
owned and operated by appellee Memphis Housing Authority (“MHA”), a federally funded public
housing authority within the meaning of the United States Housing Act of 1937, as amended, 42
U.S.C. § 1437 et seq. (“Federal Housing Act”). A federal statute requires that public housing
authorities, such as MHA, use leases that

provide 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 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. § 1437d(l)(6) (Supp. 2000). Attempting to comply with this federal statute, MHA
included provisions in its lease agreements that require a tenant

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

The lease further provides that cause for termination exists if “the resident, any members of the
household, a guest of other person under the resident’s control” engages in “any drug-related
criminal activity on or off the premises.” The lease agreement Thompson signed contained these
provisions.

Thompson was pregnant with her third child when she moved into her Fowler Homes
apartment in October of 1997. The record reflects that Tallen Williams, the father of Thompson’s
unborn child, was incarcerated in the Shelby County jail in December of 1997 and that Thompson
visited Williams on three occasions. During these visits, Williams told Thompson that he had been
jailed for violating his probation by failing to perform community service. Williams did not tell
Thompson why he initially had been placed on probation, and Thompson did not inquire further into
Williams’ criminal record.

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 The record reflects that Thompson’s and Williams’ child was born on January 13, 1998. Less
than one month later, on February 6, 1998, Thompson saw Williams “hanging out with his friends”
at Fowler Homes. Thompson asked Williams to come to her apartment and care for her three
children, including his three-week-old baby, while she did laundry. Williams agreed. While
Williams was babysitting in Thompson’s apartment, officers of the Memphis Police Department
executed a search warrant, raided the apartment, found 0.4 grams of cocaine in Williams’ possession,
and arrested him. Williams told the police that the drugs belonged to him, and Thompson was not
questioned or detained in connection with Williams’ arrest.

One week later, however, on February 13, 1998, MHA provided Thompson a written “Three
Day Notice of Termination of Lease” which advised that her lease was being terminated based upon
her violation of Section 7, paragraphs L through N of her lease prohibiting drug-related criminal
activity on the premises. When Thompson refused to vacate the premises, MHA brought this
unlawful detainer action.

This action initially was tried in General Sessions Court where a judgment for possession was
entered in favor of MHA. Thompson appealed the judgment to the Circuit Court, and MHA moved
for summary judgment contending, based upon the undisputed facts, that it was entitled to terminate
Thompson’s lease because she had violated the lease provisions prohibiting drug-related criminal
activity on the premises. Thompson argued that termination of her lease was not appropriate because
she had no knowledge of Williams’ illegal drug activity until after his arrest.

The trial court initially denied MHA’s motion for summary judgment, stating,
while the contract places a heavy burden upon a tenant to take an active role in
preventing the use of the premises by guests of the tenant who are engaged in illegal
or drug-related activity, an entirely innocent tenant, whose ignorance of the activity
is not due to indifference or lack of precautions on his or her part, should not be a
basis for eviction.

In denying the motion for summary judgment, the trial court emphasized that it had considered only
the written stipulation of facts and had not considered Thompson’s deposition which also was in
the file.

MHA filed a motion asking the trial court to reconsider its denial of summary judgment. As
grounds for the motion, MHA argued that the trial court had erred by refusing to consider
Thompson’s deposition. The trial court agreed and granted MHA’s motion for reconsideration.
Upon considering Thompson’s deposition, the written stipulation of facts and “the entire record,”
the trial court granted the motion for summary judgment and issued a writ of possession in favor
of MHA.

Thompson appealed the trial court’s decision, and she argued before the Western Section
Court of Appeals that the trial court erred by granting summary judgment to MHA because she had
no prior knowledge of Williams’ illegal drug activity, and further, she had no ability to control

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Williams’ conduct. The Court of Appeals rejected Thompson’s argument and affirmed summary
judgment in favor of MHA. In so holding, the Court of Appeals stated:

[T]he 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 evicting
Thompson.

We granted Thompson’s application for permission to appeal to determine whether these
federally mandated lease provisions allow a public housing authority to evict a tenant based upon
the drug-related criminal activities of a “guest or other person under the tenant’s control” regardless
of whether the tenant had knowledge of the illegal activity. While the lease provisions impose strict
liability for the drug-related criminal activity of the tenant or a household member, we conclude that
eviction is appropriate based upon the drug-related criminal activity of a “guest or other person under
the tenant’s control,” only if the tenant knew or should have known of the illegal drug-related
activity and failed to take reasonable steps to prevent or halt it. Accordingly, we reverse the
judgment of the Court of Appeals and remand this case to the trial court for reconsideration of the
motion for summary judgment under the legal standard announced herein.

Standard of Review
Summary judgment is appropriate where no genuine issues of material fact exist and the
movant is entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04. We must take the
strongest view of the evidence in favor of the non-movant, allow all reasonable inferences, and
discard all countervailing evidence. See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). Our
review concerns a question of law only. Therefore, the trial court's judgment is not presumed
correct, and our review is de novo on the record before this Court. See Miller v. Willbanks, 8
S.W.3d 607, 608-09 (Tenn. 1999); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

Standard for Eviction: Strict Liability or Knowledge?
As stated, the issue in this appeal arises from a lease provision that is mandated by federal
law; therefore, we begin our analysis by considering the relevant federal law. The Federal Housing
Act is intended to assist state and local governments in providing affordable housing to low income
families. See Pub. L. No. 75-412, 50 Stat. 888 (1937); 42 U.S.C. § 1437(a); Punishing the Innocent:

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No-Fault Eviction of Public Housing Tenants for the Actions of Third Parties, 76 Tex. L. Rev. 1495,
1498 (1998). Under the Act, responsibility for managing, maintaining, and operating public housing
developments is vested in local public housing agencies, such as MHA, rather than the federal
government. See 42 U.S.C. § 1437(a)(1)(c). To obtain federal funding, however, local public
housing agencies must agree to abide by federal law and by federal regulations, promulgated by the
Department of Housing and Urban Development (“HUD”). See generally 42 U.S.C. § 1437(g).

Concerned about the prevalence of crime in public housing developments, Congress passed
the Cranston-Gonzalez National Affordable Housing Act of 1990. See Pub. L. 101-625. This
legislation required all public housing agencies to include in their leases the following provision:

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. § 1437(d)(l)(6). The scope of this statute was broadened further by a 1996 amendment
which replaced the phrase “on or near such premises,” with the phrase “on or off such premises.”
See Pub. L. 104-20 § 9(a)(1); 42 U.S.C. § 1437(d)(l)(6).

To implement this statutory mandate, HUD promulgated regulations that require public
housing authorities to include a provision in their leases

[t]o assure that the tenant, any member of the household, a guest, or another person
under the tenant’s control, shall not engage in . . . any drug-related criminal activity
on or near such premises. Any criminal activity in violation of the preceding
sentence shall be cause for termination of tenancy, and for eviction from the unit.

24 C.F.R. § 966.4(f)(12)(i)(B). Another regulation similarly provides that any drug-related criminal
activity on or off the premises “by the tenant, any member of the household, a guest, or another
person under the tenant’s control, shall be cause for termination of tenancy.” 24 C.F.R. §
966.4(l)(2)(ii)(B). Consistent with these regulations, in 1996 the Clinton administration announced
a “One Strike and You’re Out” policy which encouraged local public housing authorities to take full
advantage of these federal statutes to promote community safety in public housing. See 76 Tex. L.
Rev. at 1503.

Attempting to comply with these federal laws, MHA has included the following provisions
in its leases:

7. OBLIGATIONS OF RESIDENT
Resident Agrees:

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 ****

L. To conduct himself/herself and cause other household
members to conduct themselves in a manner which will not disturb
any public housing Resident’s peaceful enjoyment of their
accommodations and which will be conducive to maintaining the
Memphis Housing Authority public housing developments in a
decent, safe, sanitary and crime-free environment;

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 from engaging in any criminal
activity or unlawful activity that threatens the health, safety or right
to a peaceful enjoyment of the Memphis Housing Authority’s public
housing premises by other residents or employees of the Memphis
Housing Authority which includes but is not limited to any drug-
related criminal activity on or off the premises;

The term “drug-related criminal activity” means the illegal
manufacture, sale, distribution, use or possession with intent to
manufacture, sell, distribute, or use, of a controlled substance (as
defined in Section 102 of the Controlled Substance Act (21 U.S.C.
802), or of any other illicit drug).

The term “criminal activity” shall mean an act that violates
city, state, or federal criminal laws.

****

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, the Resident Handbook, or MHA Statement of Policies,
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 obligations of

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 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.

** **

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 Memphis Housing
Authority Public Housing Development in a decent, safe, sanitary and
crime-free environment and creates a threat to the health and safety
of other residents.

The parties to this appeal sharply disagree as to the appropriate standard for determining
whether eviction is proper under these lease provisions. Thompson and amicus curiae Tennessee
Association of Legal Services argue that termination of a tenancy is proper only if a tenant knew or
should have known of the drug-related criminal activity and failed to take appropriate action to
prevent or halt the criminal activity. In contrast, MHA asserts that the lease provisions impose strict
liability, meaning that termination of a tenancy and eviction are appropriate even if a tenant had no
knowledge of the illegal activity.

No Tennessee court has considered this precise issue.2 Courts in other jurisdictions are split
on the issue. Some courts have adopted the standard advanced by MHA and hold that such lease
provisions impose strict liability for all drug-related criminal activity. See City of San Francisco
Hous. Auth. v. Guillory, 49 Cal. Rptr.2d 367 (App. Dep’t Super. Ct. 1995); Housing Auth. of New
Orleans v. Green, 657 So.2d 552 (La. Ct. App. 1995); Ann Arbor Hous. Comm’n v. Wells, 618
N.W.2d 43 (Mich. Ct. App. 2000); Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700 (Minn.
1999); Syracuse Hous. Auth. v. Boule, 701 N.Y.S.2d 541 (App. Div. 1999). Emphasizing that the
federal statute mandating these lease provisions does not contain an explicit knowledge requirement,

2
In framing their argument, both the appe llant and the am icus curiae rely u pon unre ported inte rmediate a ppellate
court decisions that construe similar lease provisions addressing generally disruptive or criminal conduct. However,
these decisions ar e not particu larly instructive since the language of both the lea se provisio ns and th e federal statutes
from which th ey are derive d are differen t.

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these courts have refused to imply a knowledge requirement by the statute’s use of the phrase “under
the tenant’s control.” According to the Louisiana Court of Appeals:

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.

Green, 657 So.2d at 554. The Michigan Court of Appeals concluded that the federal statute

evinces a clear congressional intent to authorize termination of tenancy regardless
of whether the tenant was aware that his household member or guest was selling,
manufacturing, distributing, or using drugs.

Wells, 618 N.W.2d at 47 (quoting Rucker v. Davis, 203 F.3d 627, 637 (9th Cir. 2000), rev’d en banc
Rucker v. Davis, Nos. 98-16322 & 98-16542, 2001 WL 55724 (9th Cir. 2001) (en banc)).

Moreover, these courts stress that regardless of their origin in federal law, provisions in
public housing leases are contract terms to which the ordinary rules of contract interpretation apply.
One such rule is that clear and unambiguous terms must be enforced without further interpretation,
even if enforcement produces harsh results. See Guillory, 49 Cal. Rptr.2d at 369; Lor, 591 N.W.2d
at 704. Finding no ambiguity in the phrase “any drug-related criminal activity,” these courts
conclude that the provision imposes strict liability and opine that the scope of this phrase is the same
as the phrase “any drug related criminal activity including that of which the tenant is unaware.”
Wells, 618 N.W.2d at 47. Exemplifying this perspective, the California court observed that by
mandating such lease provisions “Congress enacted a straight-forward practical method of dealing
with a serious public safety problem.” Guillory, 49 Cal. Rptr.2d at 371; see also Boule, 701
N.Y.S.2d at 542.

While generally agreeing that clear and unambiguous lease provisions must be given their
plain and ordinary meaning, several other courts have determined that these particular federally
mandated lease provisions are not clear and unambiguous. Adopting the position advocated by
Thompson and Amicus Curiae, these courts have construed the ambiguous provisions to permit
eviction only if the tenant knew or should have known of the drug-related criminal activity and failed
to prevent or halt it. See Rucker v. Davis, Nos. 98-16322 & 98-16542, 2001 WL 55724 (9th Cir.
2001) (en banc); Kimball Hill Management Co. v. Roper, 733 N.E.2d 458 (Ill. App. Ct. 2000);
American Apartment Management Co. Inc. v. Phillips, 653 N.E.2d 834 (Ill. App. Ct. 1995);
Diversified Realty Group, Inc. v. Davis, 628 N.E.2d 1082 (Ill. App. Ct. 1993); Charlotte Hous. Auth.
v. Patterson, 464 S.E.2d 68 (N.C. Ct. App. 1995); Delaware County Hous. Auth. v. Bishop, 749
A.2d 997 (Pa. Commw. Ct. 2000). Noting that the term “control,” used in the phrase “under the
tenant’s control,” is not defined, these courts consider the legislative history of the federal statute
from which these lease provisions were taken almost verbatim. See Patterson, 464 S.E.2d at 71;

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Bishop, 749 A.2d at 1002. Of particular importance is the congressional committee report that
accompanied the 1990 Cranston-Gonzalez Affordable Housing Act, which stated:

The Committee anticipates that each case will be judged on its individual merits and
will require the wise exercise of humane judgment by the [public 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. 316, 101st Cong., 2d Sess. 179 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5941; see
also Patterson, 464 S.E.2d at 71; Bishop, 749 A.2d at 1002 (quoting and discussing the committee’s
report) . The North Carolina Court of Appeals described this committee report as

clearly expressed legislative intent that eviction is appropriate only if the tenant is
personally at fault for a breach of the lease, i.e., if the tenant had knowledge of the
criminal activities, or if the tenant had taken no reasonable steps under the
circumstances to prevent the activity. The legislative history makes clear that
Congress did not intend the statute to impose a type of strict liability whereby the
tenant is responsible for all criminal acts regardless of her knowledge or ability to
control them.

Patterson, 464 S.E.2d at 557. A majority of the United States Court of Appeals for the Ninth Circuit
has also concluded that by this committee report Congress specifically rejected the notion that a
public housing authority’s discretion is so broad that it extends to the eviction of innocent tenants.
See Rucker, 2001 WL 55724 at *10.

Sometimes cited as supporting the view that the statute does not impose strict liability is the
HUD regulation which instructs:

In deciding to evict for criminal activity, the [public 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.

24 C.F.R. § 966.4(l)(5)(i); see also 76 Tex. L. Rev. at 1520 (asserting that the regulation permits the
public housing authority to exercise discretion, which indicates that the lease provisions do not
impose strict liability).

After carefully reviewing these conflicting decisions, we consider the threshold inquiry to
be whether or not the language of the lease provides a clear answer to the question presented. In
Tennessee, when construing a lease courts can not make a new contract for the parties. See Cain
Partnership Ltd. v. Pioneer Inv. Services Co., 914 S.W.2d 452, 462 (Tenn. 1996). Where the
wording of the lease is unambiguous, the clear language must be interpreted and enforced as written

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even though it contains terms which may be considered harsh and unjust by a court. Id. at 464.
However, ambiguous lease provisions must be construed against the party drafting the lease. Id. at
462; see also Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528, 531 (Tenn. 1991); Marshall
v. Jackson & Jones Oils, Inc., 20 S.W.3d 678, 682 (Tenn. Ct. App. 1999).

The lease provisions at issue in this appeal require Thompson

[t]o refrain from and cause household members, guests, or persons under the
resident’s control from engaging in any criminal activity or unlawful activity . . .
which includes but is not limited to any drug-related criminal activity on or off the
premises.

The lease further provides that “[a]ny drug-related criminal activity on or off the premises” by
Thompson, “any members of the household, a guest, or other person under the resident’s control,
shall be cause for termination of tenancy.” These lease provisions refer to four separate categories
of people: (1) the resident (Thompson); (2) household members; and (3) guests or (4) other persons
under the resident’s control. The phrase, “under the resident’s control,” relates only to the last two
categories – guests or other persons. Although other courts have applied a single standard to all four
categories, we conclude that applying a single standard is not consistent with the plain language of
either the lease provisions in this case or the federal statutes from which they are derived. While
both the language of this lease, and the federal statute from which it is derived, clearly impose strict
liability upon the resident or household members for engaging in drug-related criminal activity, the
language is not clear with respect to the standard that applies to a guest or other person under the
resident’s control.

The phrase “under the resident’s control” is not defined in the lease or in the federal statute.
In addition, as previously stated, there is a split of authority among other jurisdictions as to the
meaning of the phrase as it is used in the federal statute and the lease provisions derived from that
statute. Where language in a contract or statute is susceptible of more than one reasonable
interpretation the language is ambiguous. See Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997)
(“The mere fact that this [statutory] phrase is reasonably interpreted either way makes it ambiguous.
Where the language of a legislative provision is unclear, the Court should look behind the face of
the statute to determine the legislature's intent.); Tata v. Nichols, 848 S.W.2d 649, 650-51 (Tenn.
1993) (applying this rule to an insurance contract and finding ambiguity because the term had been
interpreted differently by various other jurisdictions considering the issue). This portion of the lease
provision is ambiguous. As other courts have found, both the legislative history and the HUD
regulation suggest that this ambiguous phrase should be interpreted as allowing evictions only if the
tenant knew or should have known of the drug-related criminal activity of a guest or other person
under the tenant’s control. See Patterson, 464 S.E.2d at 71; Bishop, 749 A.2d at 1002. The
congressional committee report specifically declares, “[f]or 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.” (Emphasis added.) By

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allowing the public housing authority to consider the involvement or participation of family
members, the HUD regulation also suggests a knowledge requirement.

Finally, while a standard of strict liability is sensible when it is applied to the resident or
household members, such a standard yields absurd results when it is applied to guests or other
persons.3 For example, MHA asserted during oral argument that eviction would be appropriate
where a pizza delivery person enters a public housing tenant’s apartment in possession of drugs, even
though the tenant had no knowledge or information about the drug-related criminal activity. We do
not believe Congress intended such an absurd result.

Accordingly, we conclude that neither federal law nor the lease provisions impose a standard
of strict liability for the drug-related criminal activities of Thompson’s guests or other persons under
her control.4 The phrase “under the resident’s control” permits eviction only if MHA establishes that
Thompson knew or should have known of the drug-related criminal activity “of a guest or other
person”and failed to take reasonable steps to prevent or halt it. Not only is this construction
consistent with federal legislative history and HUD regulations, it is consistent with Tennessee law
which requires that ambiguous terms in a lease be construed against the drafter of the instrument,
in this case MHA.

Under this standard, both the public housing authority and the eviction court will be required
to carefully consider the facts when an eviction is sought because of the drug-related criminal
activities of a guest or other person under the tenant’s control. In determining whether a tenant knew
or should have known of the illegal conduct, courts should consider whether the guest or other
person had a prior criminal record and, if so, whether the tenant had notice of the prior criminal
record. As the Massachusetts Supreme Court held, a tenant’s duty to take reasonable steps to
prevent or halt illegal activity may on occasion require the tenant to seek outside intervention from
social services agencies or law enforcement officials. See Spence v. Gormley, 439 N.E.2d 741, 265
(Mass. 1982). When a tenant has taken such measures, however, the tenant should not be held
responsible for illegal activities that nevertheless occur. Id.

3
A tenant will have no trouble ascertaining the identities of those persons for whom the tenant will b e held
strictly liable if all public housing authorities use leases similar to this one which requ ires the tenant to list all ho usehold
members by relationship, age, and social security number and obligates the tenant to notify the pub lic housing auth ority
within ten days of the date on which the com position of the family changes.
4
Having so concluded, we need not address Thompson’s assertion that a standard of strict liability for the drug-
related criminal activity of others would violate her constitutional su bstantive du e process right. It is well-established
that courts decide constitutional issues only when necessary. See State v. Bur din, 924 S.W.2d 82, 87 (Tenn. 1996);
Owens v. S tate, 908 S.W .2d 923 , 926 (T enn. 199 5).

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 Conclusion
Having articulated the appropriate standard, we reverse the decision of the Court of Appeals
and remand to the trial court for consideration of MHA’s motion for summary judgment under the
legal standard announced herein.

_________________________________
FRANK F. DROWOTA, III, JUSTICE

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