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Cobos v. Dona Ana County Housing Authority12/3/1998
ory duties, they might have shown that the agency was in some respects "driving the bus,"(alluding to Chee Owens v., ), where responsibility for "driving the bus" would fall within waiver)). In Bober, we indicated that duties imposed or retained in a contract with a private party can fall within the Tort Claims Act building waiver. (indicating duty might arise because the lease retained the right to enter and another agreement allowed the agency to employ necessary security).
{13} In this case, statute, regulations, and a triangle of contracts imposed specific duties to operate and maintain Plaintiff's home with due care. Plaintiff's home was being used by the Authority as part of a housing project under the state Municipal Housing Law, NMSA 1978, §§ 3- 45-1 to 3-45-25 (1965, as amended through 1989), which required the Authority to operate and maintain the project with ordinary care. This law authorizes cities and counties to "construct, maintain, operate and manage any housing project." NMSA 1978, § 3-45-5(A) (1989) (emphasis added); see also NMSA 1978, § 3-45-3(A) (1965) ("city" as used in law includes counties). It defines "housing project" as "any work or undertaking" of the county "to provide decent, safe, and sanitary dwellings . . . for persons of low income." NMSA 1978, § 3-45-3(J) and (J)(2) (1965) (emphasis added). Further, the Legislature granted local housing agencies the power to "arrange or contract for the furnishing by any person or agency, public or private, of services, privileges, works or facilities for . . . a housing project." NMSA 1978, § 3-45-4(F) (1969) (emphasis added). Thus, the Legislature created the local housing authorities for the purpose of operating and maintaining housing projects to meet the need for "decent, safe and sanitary dwellings" and contemplated the use of privately-owned facilities to do so when needed.
{14} The Municipal Housing Law also requires compliance with federal regulations affecting housing authority employees. See NMSA 1978, § 3- 45-4(F) (1969) (requiring the local agencies to "comply with any conditions the federal government may have attached to its financial aid of the project"). The Doña Ana County Housing Authority chose to administer its housing program under a component of the federal Section 8 Existing Housing Program, which allows the Authority to use privately- owned homes, instead of publicly-owned or -built housing, for its participants. The program creates a relationship among the Authority, the private landowners, and the family in need. As the parties agree, the Authority screens for and certifies a qualified needy participant, and represents that it will subsidize the participant's rental of approved homes to an extent that is prorated by income, need, and family size. The Authority then contracts with the owner of the property to provide rental housing for the participant. The contract provides that the Authority exerts a certain amount of control over the premises. The home must pass an occupancy test based on Housing and Urban Development (HUD) regulations, which are the minimum health and safety requirements for the housing to be considered "decent, safe, and sanitary." To ensure that these requirements are met, the regulations require the Authority to inspect the house prior to occupancy and annually after the lease is executed. The owner-landlord is required to maintain and operate the home to ensure that it is "decent, safe, and sanitary housing," and the Authority may inspect the home at any time to ensure that minimal HUD requirements are met. If the owner fails to meet this obligation, the Authority "shall have the right . . . to terminate or reduce housing assistance payments to the Owner, and to terminate the Contr
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