Maxton Housing Authority v. McLean

• Decision Date: 02 October 1984
• Docket Number: No. 8316DC1088,8316DC1088
• Citation: 320 S.E.2d 322,70 N.C.App. 550
• Parties: MAXTON HOUSING AUTHORITY, v. Anita McCoy McLEAN.
• Court: North Carolina Court of Appeals

Page 322

320 S.E.2d 322

70 N.C.App. 550

MAXTON HOUSING AUTHORITY, v. Anita McCoy McLEAN.

No. 8316DC1088.

Court of Appeals of North Carolina.

Oct. 2, 1984.

Mason, Williamson, Etheridge & Moser by Andrew G. Williamson, Laurinburg, for plaintiff-appellee.

Lumbee River Legal Services, Inc., by Phillip Wright, Pembroke, for defendant-appellant.

BRASWELL, Judge.

Defendant appeals from orders evicting her from her apartment leased from the plaintiff Housing Authority because of nonpayment of rent and utilities. After a careful review of all assignments of error, we find no error and affirm the District Court.

The basic facts of nonpayment of rent and utilities are not disputed. The thrust of the defendant's argument is that her husband alone is liable for the rent payments. We disagree.

The obligations of the defendant accrued pursuant to her written lease agreement with the plaintiff on 1 July 1980. The lease was executed in her name only. Although defendant married David McLean on 10 October 1981, his name was added to the lease as an occupant, but not as a lessee. On 24 March 1982, David McLean moved out of the defendant's apartment following domestic criminal action by her against him.

The rent for January, February, and March 1982 was not paid. Section 12.1 of the defendant's lease provides that " 'nonpayment of rent' " is a material noncompliance with the lease and a ground for termination. As we interpret the defendant's argument, she contends that she was not individually liable for the rent's nonpayment, but that her husband under the doctrine of necessities, was responsible for the rent payments and that the Housing Authority ought to sue and collect the rent money due from him. See Cole v. Adams, 56 N.C.App. 714, 289 S.E.2d 918 (1982). Even assuming that the plaintiff could sue David McLean under this or any of the defendant's other theories, the law of North Carolina allows the Housing Authority to sue in summary ejectment the party (in this case the defendant tenant) whose name alone is on the lease. For her failure to comply with a valid provision in her lease, she was properly ordered evicted.

The lease also provides in section 7 that "[a]ll utilities shall be paid by the Resident. If utilities are discontinued because of nonpayment, this will result in immediate eviction." The defendant argues that "[t]he electricity was cut off because Mr. McLean was not paying the bills." She admits that "the electricity was discontinued for nonpayment." She also acknowledges that the water to her apartment was cut off for nonpayment from 28 May 1982 to 22 June 1982. During this time she did not live in the apartment but stayed with her parents.

Defendant also argues that section 7 of the lease, as quoted above, is unenforceable because it "creates an irrebutable presumption that a tenant is unfit for continued occupancy in a Housing Authority unit if the tenant's utilities are discontinued for nonpayment," in violation of her constitutional rights. We disagree. A dwelling without utilities, such as water, sewer, or electricity, certainly creates a situation where unsafe and unsanitary dwelling accommodations would exist, and which are problems properly identified and sought to be corrected by North Carolina's Housing Authority Law, G.S. 157-2. Furthermore, the plaintiff is not required to allege and prove any physical damage to the apartment has occurred because the utilities have been cut off.

We further disagree that the defendant can defend against the action for eviction for her nonpayment of the utilities by claiming it constitutes a retaliatory eviction.

We clarify that there are two cases between these same parties which were ultimately consolidated for trial and appeal. The first case, filed 11 March 1982, was for the nonpayment of rent. The second case, filed 20 July 1982, involved the nonpayment of her utilities. Under judgment in each case on 20 June 1983 the defendant was found in violation of a respective term of the lease and ordered evicted.

It is true, as reflected in G.S. 42-37.1(a)(4), that "[a] good faith attempt to exercise, secure or enforce any right existing under a valid lease or rental agreement or under State or federal law" affords protection to a tenant within twelve months of the filing of the landlord's action. See G.S. 42-37.1(b). However, G.S. 42-37.1(c) provides that notwithstanding the defense of retaliatory eviction "a landlord may prevail in an action for summary ejectment if: (1) [t]he tenant breached the covenant to pay rent or any other substantial covenant of the lease for which the tenant may be evicted, and such breach is the reason for the eviction." The language and terms of the lease are clear and not in dispute. The nonpayment of utilities bills was admitted. This nonpayment is a violation of section 7 of the lease. This violation was a material noncompliance with the lease and authorized the plaintiff to proceed in summary ejectment in the second action. The grounds for the second case were nonexistent when the first case was filed. There was no retaliatory eviction.

Affirmed.

HILL, J., concurs.

BECTON, J., dissents.

BECTON, Judge, 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,...