[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0051

Index: 2.245

Subject: PH Due Process Determination: Rhode Island

January 22, 1992

HUD DUE PROCESS DETERMINATION

for the

STATE OF RHODE ISLAND

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of Rhode Island Eviction Procedures.

IV\. Analysis of Rhode Island Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: Rhode Island.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

RHODE ISLAND: HUD DUE PROCESS DETERMINATION

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of Rhode Island to determine if

eviction procedures under Rhode Island laws require a hearing

with all of the regulatory \"elements of due process,\" as defined

in 966.53(c).

HUD finds that the requirements of Rhode Island law

governing an action for eviction in the Rhode Island District

Court under the Rhode Island Residential Landlord and Tenant Act

at Chapter 18 of Title 34 of the Rhode Island General Laws

(R.I.G.L.) includes all of the elements of basic due process as

defined in 24 CFR 966.53(c). This conclusion is based upon

requirements in the Rhode Island General Laws, case law and court

rules.

III\. Overview of Rhode Island Eviction Procedures

The Rhode Island Residential Landlord and Tenant Act

(R.I.G.L. Title 34, Chapter 18) establishes laws governing rental

of residential dwelling units, including procedures for judicial

eviction of residential tenants. The Landlord and Tenant Act

applies to public housing unless a subject is pre-empted by

federal law, or there is a direct conflict with Federal law or

regulation. R.I.G.L. 34-18-3(b).

The Rhode Island District and Housing Courts have law and

equity jurisdiction over a case under the Landlord and Tenant

Act, including an eviction action. R.I.G.L. 34-18-9.

Procedures for eviction actions in the Rhode Island District

Courts are subject to the District Court Civil Rules (D.C.R.).

D.C.R. 1, 81.

A tenant must comply with obligations under the Landlord and

Tenant Act. R.I.G.L. 34-18-24. In addition to other tenant

duties, the tenant:

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

\-- must not disturb peaceful enjoyment by other residents

(R.I.G.L. 34-18-24(7));

\-- must not maintain a \"narcotics nuisance\" on the premises

(R.I.G.L. 34-18-24(8));

\-- must not manufacture, sell or deliver a controlled substance

on the premises or adjacent public property

(R.I.G.L. 34-18-24(9));

\-- must not commit any \"crime of violence\" on the premises or

adjacent public property (R.I.G.L. 34-18-24(10)).

The landlord may adopt rules or regulations concerning a tenant\'s

use and occupancy of the premises. R.I.G.L. 34-18-25.

Under the Landlord and Tenant Act, the landlord may evict a

tenant for noncompliance with the lease or with the tenant\'s

statutory obligations under R.I.G.L. 34-18-24 \"materially

affecting health and safety.\" R.I.G.L. 34-18-36(a).

IV\. Analysis of Rhode Island Eviction Procedures for Each of the

Regulatory Due Process Elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

Pre-eviction: Notice of Noncompliance

Before commencing an eviction action for violation of the

lease, or of the tenant\'s statutory State-law tenancy

obligations, the landlord must give the tenant notice of

noncompliance. R.I.G.L. 34-18-36(a), 34-18-56(b). After the

date of lease termination specified in the notice, the landlord

may commence the eviction action. R.I.G.L. 34-18-36.

The noncompliance notice must specify the acts or omissions

which have breached the rental agreement or breached the tenant\'s

statutory duties under R.I.G.L. 34-18-24. The notice generally

gives the tenant 20 days to remedy the breach.

The landlord is not required to give notice of

noncompliance, or opportunity to remedy the breach, if the

landlord is seeking to evict the tenant for the following

violations of the tenant\'s statutory obligations: maintenance of

a narcotics nuisance (R.I.G.L. 34-18-24(8)), dealing in

controlled substances (R.I.G.L. 34-18-24(9)), or commission of

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

violent crimes in public housing premises

(R.I.G.L. 34-18-24(10)). In such circumstances, R.I.G.L.

34-18-36(f) provides that \"the landlord shall not be required to

send a notice of noncompliance to the tenant and may immediately

file a complaint for eviction . . . .\"1

1

Federal law (42 U.S.C. 1437d(l)(3)) requires that each public

housing agency utilize leases which:

require the public housing agency to give

adequate written notice of termination of the

lease which shall not be less than

\(A\) a reasonable time, but not to exceed 30

days, when the health or safety of other

tenants or public housing agency

employees is threatened;

\(B\) 14 days in the case of nonpayment of

rent; and

\(C\) 30 days in any other case.

R.I.G.L. 34-18-3 expressly defers the application of

provisions of the Residential Landlord and Tenant Act whenever:

\(1\) a particular subject matter has been

pre-empted by federal law, or;

\(2\) a . . . tenant has any rights . . .

derived from federal law or regulations

which directly conflict with the

provisions of this chapter, in which

case the rights and responsibilities

derived from federal laws and

regulations shall control.

This provision recognizes that federal laws and regulations

supersede State landlord-tenant law, and also adopts such

requirements under Federal laws and regulations as part of a

tenant\'s rights under Rhode Island law. This entitles a tenant

as a matter of Rhode Island State law to all of the rights

otherwise granted as a result of federal law and regulations,

including the public housing requirements for notice of lease

termination.

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

For evictions where the Rhode Island pre-termination

noncompliance notice is required, the notice of noncompliance is

notice of the \"acts and/or omissions constituting the breach,\"

and therefore provides adequate notice of the grounds for

eviction. Noncompliance notice is required by Rhode Island law

where the PHA is evicting for breach of the rental agreement. By

Federal law, a public housing lease must provide that drug-

related criminal activity, or criminal activity which threatens

PHA residents or employees, is grounds for eviction.

42 U.S.C. 1437d(l)(5). Thus commission of such criminal activity

is a breach of the public housing lease (even though it may also

be a breach of the tenant\'s statutory obligations under Rhode

Island law (R.I.G.L. 34-18-24(8), (9) or (10))). Where a PHA is

evicting for such criminal activity as a material noncompliance

with the lease agreement (rather than for breach of the parallel

statutory tenant obligation under Rhode Island law), then Rhode

Island law requires that the PHA deliver a noncompliance notice

which provides adequate notice of the grounds for eviction.

Eviction Action: Summons and Complaint

The District Court acquires personal jurisdiction over the

defendant-tenant by service of process. A summons and complaint

must be served on the defendant in accordance with the procedures

stated in the District Court Rules. D.C.R. 4.

In an eviction action for noncompliance with the rental

agreement or with tenant obligations under State law, the summons

must be in the form provided in R.I.G.L. 34-18-56(h).

R.I.G.L. 34-18-10(b)(1); 34-18-36(c). The form of summons

informs the tenant that the tenant has been \"served with an

eviction complaint for noncompliance with the rental agreement

. . . . \" The summons notifies the defendant of the opportunity

to appear and defend the action.

The complaint must be substantially in the form provided in

R.I.G.L. 34-18-56(e). R.I.G.L. 34-18-36(b). If landlord was

required to give a pre-termination notice of noncompliance, the

notice is attached to the complaint. R.I.G.L. 34-18-56(e). As

noted in the preceding discussion of the noncompliance notice, a

notice of noncompliance provides adequate notice of the grounds

for eviction.

Termination by City or Town Housing Authority

R.I.G.L. 45-25-18.1(C) requires that each city housing

authority adopt and promulgate rules which establish:

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

Just cause for the termination of the right

of use and occupation, so that a tenant may

be clearly apprised of the precise reasons

for a termination. Emphasis added.

This requirement also applies to town housing authorities.

R.I.G.L. 45-26-7 provides that \"all the provisions of law

applicable to housing authorities created for cities and the

commissioners thereof shall be applicable to town authorities.\"

For tenants of a city or town housing authority, including a

public housing tenant, the housing authority must apprise the

tenant of the \"precise reasons\" for terminating the tenant\'s

right of use and occupancy. Notice of \"precise reasons\" for

termination would constitute adequate notice of the grounds for

eviction.

Notice: Conclusion

Rhode Island\'s statutory scheme provides the tenant adequate

notice of the grounds for terminating the tenancy and of the

grounds for eviction, as required by 24 C.F.R. 966.53(c)(1):

\-- for eviction by a city or town housing authority.

\-- for any eviction where State law requires a pre-eviction

notice of noncompliance.

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The right of a tenant to be represented by counsel is

implied by various provisions of the statute and court rules

concerning the role of counsel. For example, the blank answer

form at R.I.G.L. 34-18-56(j), instructs the tenant that the

tenant \"may consult a lawyer and seek representation before

filing out\" the answer.

The District Court Rules (D.C.R.) which address the role of

counsel in a tenant\'s defense imply that a tenant has the right

to be represented by counsel. See, e.g., references to a

defendant\'s attorney in D.C.R. 3, 11, 16, and 43(f).

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

Under the Rhode Island District Court Rules (D.C.R.) all

evidence must be admitted \"which is admissible under the statutes

of this state, or under the rules of evidence applied in the

courts of this state.\" D.C.R. 43(a). The D.C.R. provide that

the testimony of witnesses must be taken orally in open court

(unless otherwise provided by statute or the D.C.R.).

D.C.R. 43(a).

The D.C.R. give a tenant-defendant the right to impeach or

contradict the plaintiff\'s case through cross-examination.

D.C.R. 43(b), 43(f). A party may \"interrogate any unwilling or

hostile witness by leading questions.\" D.C.R. 43(b). A tenant

may also \"call an adverse party\" and \"contradict and impeach him

or her in all respects. . . .\" Id.

The Rhode Island D.C.R. give a defendant-tenant a full

opportunity to defend against and refute the PHA\'s evidence,

including the right to confront and cross-examine witnesses.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

D.C.R. 7(a) provides that \" t here shall be a complaint and

an answer\" (as well as other forms of pleadings relating to

counter-, cross-, and third-party complaints). D.C.R. 8(b)

requires a party to \"state in short and plain terms his or her

defenses to each claim asserted.\" D.C.R. 12(b) requires that

\"every defense, in law or fact, to a claim for relief in any

pleading . . . shall be asserted in the responsive pleading

thereto if one is required . . . . \" (except that some defenses

may be raised by motion). The blank answer form at

R.I.G.L. 34-18-56(j) advises the tenant of defenses which the

tenant can and should raise in the answer.

There are no limitations on the grounds of defense which may

be raised by the defendant in the pleadings. Consequently, the

tenant in a Rhode Island eviction case is afforded the

opportunity to present any available defenses to the PHA\'s

eviction action.

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RHODE ISLAND: HUD DUE PROCESS DETERMINATION

E. A decision on the merits (24 CFR 966.53(c)(4))

R.I.G.L. 8-8-30 requires that the district court \"render its

decision in writing, including a concise statement of the facts

found by the court and the conclusions of law reached by the

court.\" Under District Court Rules (D.C.R. 54(a)), the judgment

of the court is \"the formal disposition of a claim by the court.\"

Under D.C.R. 58, judgment is entered on the court\'s decision

after trial or hearing.

In addition to these specific requirements, the structure of

the trial and hearing requirements under the District Court Civil

Rules implies that the court\'s decision will be a decision on the

merits: a decision based upon the evidence presented bearing upon

the legal and factual issues as framed by the complaint and

answer.

V. Conclusion

Rhode Island law governing an action for eviction in the

Rhode Island District Court under the Rhode Island Residential

Landlord and Tenant Act (R.I.G.L. Title 34, Chapter 18) requires

that the tenant have the opportunity for a pre-eviction hearing

in court which provides the basic elements of due process as

defined in 24 CFR 966.53(c) of the HUD regulations.

By virtue of HUD\'s due process determination under section

6(k) of the U.S. Housing Act of l937, a PHA in Rhode Island may

evict a public housing tenant pursuant to a District or Housing

Court decision in an eviction proceeding for any criminal

activity that threatens the health, safety, or right to peaceful

enjoyment of the premises of other tenants or employees of the

PHA or any drug related criminal activity on or near the

premises, and is not required to first afford the tenant the

opportunity for an administrative hearing on the eviction.

8