Maxton Housing Authority v. McLean

Judge BECTON

dissenting.

If I deemed it proper to resolve abstract principles, or, indeed, to decide cases in a vacuum, without reference to the facts of a case, I could easily join the majority in concluding that the Maxton Housing Authority (MHA) properly terminated Anita McCoy McLean’s lease. A consideration of the specific facts in this case, however, prompts me to dissent.

Mrs. McLean was evicted from her apartment because of nonpayment of rent and utilities. It must be remembered, however, that at the time Mrs. McLean became a tenant of MHA, she was the unmarried mother of two children and paid no rent. And, although Mrs. McLean was responsible for paying her utilities, she received a subsidy — a utility check from MDA — to apply toward her utility bills.1

Because, and only because, Mrs. McLean, on 10 October 1981, married David McLean, the father of her children, and reported her marriage to MHA, as she was required to do, her total rental payments increased to $171.00 per month. Mr. McLean’s subsequent unemployment decreased the rental payment contribution to $73.00 per month effective 1 February 1982.

Mr. McLean failed to make the January, February, and March 1982 rental payments, totalling $332.00. When Mrs. McLean discussed the unpaid bills with him, he assaulted her. Mr. McLean was subsequently convicted of assault and nonsupport, and on the day of the trial (24 March 1982) moved out of the apartment. Perhaps as early as the first magistrate’s hearing on 6 April 1982, but clearly by the time of the trial de novo in district court, MHA had notice of the parties’ domestic situation and knew that Mr. McLean was no longer in the apartment.

*554The majority’s suggestion that there was no contractual relationship between MHA and Mr. McLean ignores the factual realities of the situation. Here, the amount of rent was based solely on Mr. McLean’s income. MHA was relying on his estate and credit, and not on Mrs. McLean’s estate and credit. (Compare Presbyterian Hospital v. McCartha, 66 N.C. App. 177, 310 S.E. 2d 409 (1984) in which this Court, in discussing the doctrine of necessaries, said: “[W]hen anyone sells or furnishes necessaries to a married woman in her individual capacity, and in reliance upon her separate estate or credit, it is the law in most jurisdictions that the husband is not liable, and that the creditor must seek payment from the one contracted with. [Citations omitted.]” Id. at 179, 310 S.E. 2d at 411. (Emphasis added.) In my view, the social policy that spun the doctrine of necessaries, see Robertson v. Robertson, 218 N.C. 447, 11 S.E. 2d 318 (1940) and McClure v. McClure, 64 N.C. App. 318, 307 S.E. 2d 212 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E. 2d 651 (1984), is applicable here. After all, when Mrs. McLean married Mr. McLean, she lost what was apparently her only source of income — Aid to Families with Dependent Children (AFDC) since AFDC is conditioned on the father’s absence from the home.

When the logic of MHA’s argument is considered, not on some lofty abstract plane, but rather, in the context of real people who are cast out of what may be the only housing available to them, the conclusion that Mrs. McLean was wrongfully evicted from her federally subsidized housing becomes apparent. To allow Mrs. McLean to be evicted on the facts of this case would violate the legislative policy codified in N.C. Gen. Stat. § 157-2 (1982) of “the providing of safe and sanitary dwelling accommodations for persons of low income . . . for which public money may be spent. . . .” Moreover, if we carried MHA’s argument to its illogical conclusion, this would be the result: Mr. McLean is a stranger to the lease, and he has no contractual relationship with MHA; his income should, therefore, not be considered by MHA at all; Mrs. McLean has no income, so when you exclude Mr. McLean’s income because he is a stranger, no rent would be due MHA.

Separate and apart from my conclusion that the social policy underlying the doctrine of necessaries is applicable in this case is my further conclusion that the judgment for back rent and eviction should not have been entered against Mrs. McLean when she *555was not individually at fault in reference to the nonpayment of rent. Due process requires a “good cause” analysis.

Thus, in their attempt to cure the evils of discriminatory and arbitrary eviction procedures prevalent in federally-subsidized housing, the courts have established a standard of ‘good cause’ as a condition upon which tenancies in public housing may be terminated.

Goler Metropolitan Apartments, Inc. v. Williams, 43 N.C. App. 648, 651, 260 S.E. 2d 146, 149 (1979), disc. rev. denied, 299 N.C. 328, 265 S.E. 2d 395 (1980). In short, I believe there must be some causal connection — some nexus — between the imposition of the drastic sanction of eviction and Mrs. McLean’s own conduct. See Tyson v. New York City Housing Auth., 369 F. Supp. 513 (S.D. N.Y. 1974)

Finally, based on the above analysis, I also believe the trial court erred in evicting Mrs. McLean based on the nonpayment of utility bills.

. In federally subsidized housing programs, “rent” generally includes a reasonable utility allowance. See 24 CFR §§ 880.201, 881.201, 882.102, 883.302 and 884.102 (1984). The utility allowance for an apartment such as the one Mrs. McLean was living in is forty-two dollars ($42.00) per month. Accordingly, if the amount of Mrs. McLean’s income that is to go towards rent (including utilities) is less than forty-two ($42.00) dollars per month, Mrs. McLean will receive the difference between her rental payment and forty-two dollars ($42.00) in the form of cash or check. This money is then applied by Mrs. McLean towards her utility bill. For example, if Mrs. McLean has 0 income, she should then receive a credit of forty-two ($42.00) dollars from the Housing Authority to be used as payment for her utilities.