ANDREW P. GORDON, District Judge.
Plaintiff Edward Zimbelman applied for housing from defendants Southern Nevada
After he had lived in his home for seven months, the Housing Authority sent Zimbelman a notice that he was being terminated from the housing program because he was a registered sex offender. Zimbelman filed this suit claiming the Housing Authority cannot terminate him.
He now moves for summary judgment, arguing the Housing Authority waived or is estopped from using the termination clause in his lease, and that the due process clause also prevents the Housing Authority from terminating him. The Housing Authority cross-moves for summary judgment, arguing Zimbelman cannot prove his claims.
The Housing Authority did not waive and is not estopped from terminating Zimbelman. And to the extent Zimbelman has a due process right to challenge the Housing Authority's decision, he cannot show it was wrong to terminate him. I thus deny Zimbelman's motion and grant summary judgment in favor of the Housing Authority.
The parties generally agree on the facts. Zimbelman applied for a home with the Housing Authority. He disclosed in his application that he was a registered sex offender. Apparently, the Housing Authority did not read his application carefully, if at all; instead, it relied on a preliminary background check to accept Zimbelman into the program.
Zimbelman's lease states that the Housing Authority "may terminate this lease agreement if ... [a] household member... is found to have: a prior or current conviction for a sexual criminal offense that is subject to the Nevada Offender Registration Program."
Zimbelman signed the lease and moved into his home, where he lived for about seven months. Later, Zimbelman received a notice from the Housing Authority telling him that he was being evicted because he was a registered sex offender. He was understandably surprised; after all, he had explicitly disclosed in his application that he was a sex offender. But the Housing Authority apparently realized Zimbelman was a registered sex offender only after it received Zimbelman's records from the Las Vegas Metropolitan Police Department.
The Housing Authority gave Zimbelman an informal hearing on his termination. After termination was upheld, the Housing Authority gave Zimbelman a formal hearing. The Housing Authority provided Zimbelman with a written denial shortly after, explaining he was being terminated based on 24 C.F.R. pt. 966, the Housing Authority's policies, and PIH Notice 2012-28
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
If the moving party demonstrates the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
A party must support or refute the assertion of a fact with admissible evidence.
The parties' motions for summary judgment address two disputes: (1) whether the lease allowed the Housing Authority to terminate Zimbelman and (2) whether the Housing Authority violated Zimbelman's due process rights by terminating him.
The parties apparently agree that, under Section 3 of the lease, the Housing Authority could have initially terminated Zimbelman based on his registration status. Section 3 states the Housing Authority may terminate the lease if the tenant is a registered sex offender. But Zimbelman argues the Housing Authority either waived its rights to enforce this termination provision or is estopped from enforcing it.
Equitable estoppel consists of the following elements: (1) the party to be
Zimbelman has failed to satisfy his initial burden to establish several of the estoppel elements. First, he provides no evidence or explanation about how he justifiably relied to his detriment on the Housing Authority's agreement to lease him his house. For instance, he has not proven that he lost another housing opportunity as a result of the Housing Authority's delay in seeking to evict him.
Next, he has not proven that he reasonably believed the Housing Authority intended not to enforce the termination provision. The Housing Authority specifically reserved its right to enforce the lease terms even if it did not enforce them at the outset. No lease term required the Housing Authority to enforce the termination provision at any specific time. Zimbelman points to no representations the Housing Authority made that could have reasonably led him to believe the Housing Authority gave up its right to terminate.
And Zimbelman provides no evidence he was ignorant of the fact that the Housing Authority might later terminate him because of his registration status. This is especially true because the terms of the lease put him on notice that his registration was a potential ground for termination and that the Housing Authority reserved the right to enforce the termination provision later.
Zimbelman primarily relies on Merrill v. DeMott for his estoppel argument.
I therefore find that Zimbelman has failed to prove the Housing Authority is estopped from enforcing the termination provision.
Zimbelman next argues the Housing Authority waived its right to enforce the termination provision by waiting seven months to enforce it. But Zimbelman's lease contained a non-waiver clause stating that the Housing Authority's failure to enforce:
The lease also requires that any waiver be in writing and signed by the Housing Authority.
In Consumers, the Nevada Supreme Court noted that non-waiver clauses are "generally enforceable." It went on to hold that a landlord's five-year delay in demanding a lease penalty was so unreasonable that the non-waiver clause in the lease should be ignored. Summa Corporation stands for a similar proposition that, in certain extreme cases of delay, a landlord might not be able to enforce a non-waiver provision to recover for past breaches of a lease. It does not address whether a non-waiver clause is enforceable where a tenant continues to be in breach of the lease. In fact, cases it cites to distinguish between past and current breaches, noting that ongoing breaches would not be waived if the lease has a non-waiver clause.
Zimbelman concedes the Nevada Supreme Court has not addressed whether a non-waiver clause should be rendered unenforceable because a landlord signs a lease knowing a ground for termination might exist. He argues I should adopt a rule that renders non-waiver clauses unenforceable anytime a landlord does so. Zimbelman also argues that, like the landlord in Consumers, the Housing Authority has waited an unreasonable time to enforce the termination provision.
As noted in Consumers, non-waiver clauses are generally enforceable. The Housing Authority had the contractual right to terminate Zimbelman for his registration status, and it specifically reserved the right to delay in terminating him. The lease informed Zimbelman that even if the Housing Authority did not immediately enforce a termination provision against him, it may do so later. Indeed, the non-waiver clause was likely meant to address this very situation: the Housing Authority electing to take additional time to process an applicant's records and decide whether to keep him in the tenancy. Zimbelman has not raised a triable issue as to whether the waiver clause is enforceable.
Finally, Zimbelman argues that public policy favors punishing the Housing Authority because it negligently failed to determine Zimbelman's registration status earlier. It may be true that the Housing Authority did not read Zimbelman's application — indeed it may not read any of the applications it receives, opting instead to rely on its own background checks. But there are equally important policies in favor of giving the Housing Authority the ability to adequately research applicants and take additional time to determine whether it should exercise a termination provision. If the Housing Authority automatically waives all existing grounds for termination with no room for error, it would presumably err on the side of refusing to provide shelter to its low-income applicants. Zimbelman asks me to punish the Housing Authority for providing him low-income housing for seven months, even though he never qualified for that housing under HUD's regulations.
Having found that Zimbelman cannot challenge the termination under his lease,
Zimbelman likely has procedural due process rights to his housing.
Even assuming Zimbelman has the right to challenge the Housing Authority's substantive decision, he still loses. First, 24 C.F.R. § 966.4 allows the Housing Authority to terminate Zimbelman for good cause, and Zimbelman provides no reason to believe violation of his lease is not good cause under this regulation.
Zimbelman argues I should give "no deference" to HUD's interpretation because it is contained in a mere policy document. But the Ninth Circuit has repeatedly instructed that an agency's reasonable interpretations should be respected — even where embodied in a policy document.
The cases cited by Zimbelman are not binding, and I do not find them persuasive.
HUD's interpretation of § 13663 is a reasonable one. Zimbelman concedes Congress intended to prohibit lifetime sex offender registrants from being in this public housing program — indeed, Congress passed 42 U.S.C. § 13663 to prohibit sex offender registrants in housing programs. It would be absurd to conclude Congress intended to prohibit terminating a lifetime sex offender registrant who mistakenly made it into the system.
Ultimately, HUD regulations allow public housing authorities to terminate residents for good cause. HUD has instructed housing authorities to terminate registered sex offenders if they are mistakenly let into the program. HUD's interpretation of its authority is a reasonable one. Assuming Zimbelman has a due process right to challenge the substance of the Housing Authority's decision, he is not entitled to relief.
The Housing Authority had a legal and legitimate basis to terminate Zimbelman's lease based on his sex offender registrant status. Because Zimbelman cannot prevail on his claim under either a contract or due process theory, I grant the Housing Authority's motion for summary judgment.
IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Dkt. #29) is DENIED.
IT IS FURTHER ORDERED that the defendant's motion for summary judgment (Dkt. #31) is GRANTED. Judgment is entered in favor of the defendants.