*2 DOYLE, Before BARRETT and Circuit Judges, STANLEY, Senior District Judge *. STANLEY, Jr.,

ARTHUR J. Senior Dis- Judge. trict The defendant-appellee, Oklahoma City Housing Authority, (the Authority) is a public corporation manages and con- trols federally financed housing low-rent units in Oklahoma City.1 Some of the resi- “general dents are occupancy tenants” and “elderly some are tenants”.

The plaintiffs-appellants (Tenants) are el- derly occupants of which, units under leases 1,1975, prior January provi- contained no sion for maintenance or deposits. 18, On December Governing Board * Kansas, sitting by designa- Of the District of Statutes, Oklahoma Title Oklahoma tion. seq., operate federally § 1051 et subsidized housing. low-rent City Housing Authority is 1. The Oklahoma a housing authority local created the State of resolution, evidentiary After an hearing ef- the trial Authority adopted judgment entered for the new court defendants providing for fective and found: all ten- containing provision leases $50.00, ants be “1. That the maintenance re- or in installments lump sum payable quired by Defendants aas condition a memoran- By month.2 per precedent occupancy $10.00 Oklahoma $5.00 *3 notified that they were Housing Authority all tenants City dwelling dum to tenancy the de- of their ‘deposit’ termination units is a valid returnable at the “any that provided would be refunded and is in the nature of a ‘rent’. posit any damage to unpaid, or charges left deposit “2. That maintenance is nei- tear) will normal wear and (other than unit ther excessive amount nor dis- deposit”. from the maintenance be deducted criminatory application. in its adopted by the Au- resolution By another “3. That those minimum standards for provided it was thority Housing Authority leases kept in segregated and deposits be Department Housing and account, earned in- interest-bearing an Development Urban are embodied in tenant services or used for terest to be the lease to which Plaintiffs have activities. objected. City “4. That tenants of the Oklahoma action, brought alleging this The Tenants Housing Authority given were ade- applied to provision was deposit

that quate proposed notice of lease to them or without notice elderly residents changes adequate griev- tenant comment; that them to opportunity for ance mechanisms have been estab- lasting work a implementation would its lished. hardship upon irreparable economic “5. That the imposition of said mainte- them; elderly tenants do little or that deposit nance does not arbitrarily or imposition deposit that of a damage; no unreasonably deprive Defendants arbitrary and requirement capricious; property. of their [sic] deposit was exces- that imposition “6. That unreasonable; of said maintenance sive and deposit arbitrary, is neither effect; capri- was still in full force and old lease cious, irrational, excessive nor un- in- payment and that reasonable. violating their rent to an amount creased (42 lease, per- Amendment”. U.S.C.A. “7. That Clause 3.05 of said “Brooke 1402). taining deposit, to the maintenance complaint an amendment to the In vague is not so that a reasonable allega- expanded were to include the issues person ordinary intelligence the “new lease” tions rights would not understand the Department was violative of requirement parties duties of the to the lease. Development Circu- Housing Urban lars; violated Authority and that had City “8. That the Oklahoma Housing rights by failing to process Tenants’ due Board of Commissioners adequate properly them with notice was a constituted provide body in changes in the new lease. accordance with law at proposed Oklahoma Authority’s action followed a letter from 2. The a new tenant has increased. Since costs Regional Office of the De- accurately the Director kept, have been this cannot be Housing Development partment Urban definitely proven; units that were in- problems expressing concern with spected would indicate that this is true. REC- corrected and trans- should be strongly suggest OMMENDATION: We survey containing mitting report the follow- damage deposits policy. be reinstated as In the ing and recommendation “DAMAGE comment hardship event that this should work a on the strong evidence DEPOSITS. There is tenant, partial payments a method of then on a dropped require- has its since the adopted.” time basis could be damage deposits, cleanup the cost of ment for

1273 upon plaintiffs The burden is said seeking time maintenance a class to represent establish that approved. the class is so numerous as to joinder impracti make to meet failed named Plaintiffs That “9. Williams v. Wohlgemuth, cable. demonstrating requi- the burden F.Supp. (W.D.Pa.1973); Tuma v. Amer their to maintain qualification site F.Supp. (D.N.J.1973). ican Can representative cause shown, abuse is Unless district court’s 23, of the provided in Rule action determination is final. Arkansas Educ. Procedure. Rules of Civil Federal Educ., Board of (8th Ass’n. v. 446 F.2d 763 Plain- named specifically, the More Airlines, Inc., Hill v. American to show either tiffs failed haveWe held tenants of the Oklahoma question that “the whether to allow a Housing Authority constituted City proceed as a pur- suit class action is one persons class of a distinct primarily for determination of the trial maintaining representative poses *4 suit, adequate- judge. applies If he the correct criteria to that named Plaintiffs case, of such facts of the the be represented the interests the decision should ly tenants, to be within discretion. elderly that such considered his Gold Christensen, might Stamp Co. v. Plaintiffs 436 F.2d with whom named Strike 1970); (10th a class interest constituted 791 Cir. Rossin v. Southern show Co., joinder (10th 472 F.2d large as to make their Union Gas 707 Cir. so or a class action that impractical, Here there was evidence that out of method of provide superior would public housing units occupied by elderly 830 adjudicating controversy.” the had, tenants, objection, 811 exe without to the trial court’s determination turnWe the new leases requiring deposits, cuted and as a was maintainable action that the paid either agreed that 794 had moved to The Tenants had class many deposit; the that of them had stated con- a class representatives as of proceed they object did not requirements that to the elderly public all residents sisting of support of the new lease did not the operated by the Author- housing owned action, believing that practice requir the sub- elderly persons who should all ity and ing deposits would them benefit encour housing. to such be admitted sequently aging upkeep neighboring better units. court, hear- evidentiary after an The trial antagonistic The interest of these would be the that the motion and found ing, denied plaintiffs-appellants. interests of the to the requirements not meet the did Tenants The record convinces us that the evidence Fed.R.Civ.P., they had 23(a), in that Rule Judge finding Chandler supports before his proposed that the class failed to show proposed class that the was overbroad and mem- of all joinder so numerous plaintiffs the named failed to show they would impracticable or that bers fairly pro could adequately pro- interests of adequately protect accepted tect the interests residents who class. posed deposit requirement as beneficial and to tenants. them like-minded that the action argue The Tenants judgment judge applied In our 23(b)(2) type a classic of a Rule “represents to the correct criteria facts and did 23(b) not stand Rule does action”. in determining abuse his discretion that the as proceed In order an action alone. proceed should not as a class action. case requirements it must meet all action a class plaintiffs’ principal what subdivi The attack is on 23(a) regardless of Rule Authority’s fall resolu- 23(b) might implementation otherwise sions of .Rule requiring deposit. They the $50.00 v. Construction Tolbert Daniel under. requirement the Ten- (D.S.C.1971); National 772 contend F.Supp. 332 Motors make the in addition to Corp. ants Brokers v. General Auto of their rent amounts to an in- (S.D.N.Y.1973). payment F.R.D. 489 Corp., 60 1274 inWhile of 42 letter which precipitated that rent in violation U.S.

crease in Amendment) Authority’s (Footnote action 2) limit (the 1402 Brooke Director C.A. § the Regional Office of speaks tenant’s HUD percent 25 of a ing rental “damage deposits”, his description of the monthly income. covering as one “the cost of clean- Assuming that the sum of the rent up for a new tenant” dictates that his letter percent exceeds 25 security only can be read recommending question income the then is security deposits be from the ten- of the maintenance payment ants. whether considered as additional deposit should be Throughout findings of the trial court compensation or income rent. Rent is a the term deposit” “maintenance is used. receives from a the owner of land recognized This court has applied occupation the use or of the land. tenant for appellate well established maxim that if a States, Corp. v. United United States Steel trial court’s decision is correct upon any (S.D.N.Y.1967); Gentry 253 F.Supp. 270 proper theory, it will upheld. be Pound v. Bodan, F.Supp. (W.D.La.1972). 367 America, Insurance Co. of North 439 F.2d Upon payment of rent the title to the (10th Coleman v. Mountain money paid passes so to the landowner. Mesa Corp., Uranium F.2d 12 Money deposited per 1956); Wright Miller, Federal Prac- by a tenant of the conditions of formance Procedure, tice and pp. 439-441. lease, obligation to pay his here the the rent If the deposit is truly a maintenance de- good and to maintain condit *5 e., posit, i. money a sum of expended to be ion,3 in nature of a is the trust fund with by the landlord in its sole discretion for beneficiary. as In Re

the tenant See Pal- maintenance of the leased premises, the Inc., Playwell, 1964).4 sums If, received would be additional rent. deposit the is security per- for the pleadings In their and briefs the Tenants by formance each tenant of the conditions required deposit the variously refer to as lease, of his kept with other deposits such in security deposit”, “maintenance and “secur- separate account, and is returnable to him ity deposit” security and “maintenance and on termination of tenancy the if the condi- deposit” Authority similarly uses tions of the lease have been fulfilled by without the terms distinction. In the reso- him, security it is a deposit. establishing the requirement lution for a deposit is referred to as a “maintenance Under the terms of the new lease deposit”, as it is in the “new lease" itself the Tenants were obligated to pay stip Authority’s providing and in the resolution rent; ulated to keep the leased unit in a segregation deposits separate for of the in a tenantable, condition; safe and sanitary obligations rights account. The of the and, upon lease, termination of the to re Authority by Tenants and are not fixed possession turn of the unit to the Authority by parties used in plead- the label good in as condition as when leased to briefs, resolutions, ings them, or in the even in or normal excepted. deterioration It is itself. performance the lease of these duties that possession 3. Section 3.02 of the “new lease” contains a Dwelling of the Unit to the Authori- provision that “the tenant shall not cause or ty good in as and tenable condition as [sic] waste, any permit damage injury to the Tenant, when leased to the normal deteriora- Dwelling keep Unit and shall and maintain the excepted.” tenable, Dwelling safe, Unit in a and sani- [sic] tary any damages condition. The cost of Pal-Playwell 4. While the court in dealt with a Tenant, by family to be caused deemed his prohibiting commingling New York statute charged and/or visitors will be to such Tenant security deposits funds, with other we be- and the Tenant shall the amount of said holding lieve the to be in accordance with the damages (15) days in full within fifteen from where, general here, law there is no such shall, upon the date of the notice. The Tenant commingling of funds. Dwelling the termination of this Lease return The Tenants contend that the deposits new hold that We secures. in nine Authority comply particulars lease does by held deposits, security are tenants, (Cir and 7465.9 with HUD Circulars 7468.8 of the the benefit in trust 9), rent both effective at the time additional culars 8 constitute do not implemented. “new lease” was The of 42 U.S.C.A. violation resulting in trial court found the minimum stan amount The required by are dards HUD embodied in the tenants, occupancy general all is $50.00 lease; adequate notice of the proposed argue elderly. The Tenants well as Tenants; changes given to the lease are less destructive elderly residents adequate grievance procedures and that them that as to occupants and general then (Findings been established had ca arbitrary, From our examination of the entire record irrational, unreason excessive and pricious, we are satisfied that trial court correct it to be neither court found The trial able. ly found that the had complied in discriminatory nor in amount excessive with the substantially minimum standards supported by findings are The application. existing at the time of adoption the evidence. new lease. (Local of HUD directive applicable The The Tenants would have us remand Handbook) Management Housing this case “with instructions to the District amount fixing requires the implementation by Court to monitor the “aver- to consider deposit, aof of a lease which defendants conforms to the dwellings when ten- renovating age cost 8-7-75”. Regulations HUD We decline ex- out, wear and tear normal ants move the invitation. This case was tried 1974 the year calendar For the cepted”. 1975 and decided June 1975 on the vacated restoring premises cost of average existing rights obliga of the then basis The Author- $79.00. parties. tions of the It is that decision the aver- this was less than ity admits appealed which was and that decision we tenant-caused dam- repairing age cost proper have reviewed. We do not deem it general occu- vacated ages the district court to assume gen to instruct *6 is, however, greater than It tenants. pancy supervision eral of the future activities of all of the the amount anticipate nor will we viola assumed, under all may be and it applicable laws and will circumstances, that the regulations. any from tenant to recover not be able AFFIRMED. of restoration by which the cost amount deposit. of the exceeds DOYLE, WILLIAM E. Circuit Judge in most as- is inherent inequality Some (dissenting). housing program. The public of the

pects disagree varies from ten- with the comparable respectfully majority units I rental It according ability pay. to to opinion. ant to tenant uniformity, expect be unrealistic would As to the substantive issues: I tend to pattern, in the cost a consistent or even agree alleged violations here fail to damage. There tenant-caused

repairing and, therefore, case if present substantial extent of such dam- disparity in the will be majority grips along had come to this family the size of the upon age depending Instead, line I concurred in it. would have ages occupying opinion proceeds at the outset residing therein. children sufficiency to consider the case as a objection goes my class action and no evidence in the record We find heading. is included under this amount dicta that claim that the support unnecessary it was to con- capri- my opinion In arbitrary, oppressive, deposit is the trial court erred in dis- sider whether cious, excessive. irrational or action, class and I comment on class missing the action is not My correct. preference of the class action majority’s discussion would be to part, eliminate this thereby unjustified only because it makes not eliminating this dissent as well. but, also, generally on class actions attack with the are not in accordance its comments one is enamored recognize I that no

law. no particularly class actions and

with Still, justify setting is. this does not

judge harmony which are out of

forth comments with court decisions. rules and

with the requirements of both recognize I TANKS, INC., Plaintiff-Appellee, 23(b) one subdivisions of 23(a) and the Federal Rules of Civil Procedure must met, disagree have be but I INDUSTRIES, INC., REITER First, is suffi- met here. class been Defendant-Appellant. justify having ciently numerous No. 75-1647. 830 members. The fact It numbers executed new leases does not that 811 had United States Court of Appeals, automatically eliminate them from the Tenth Circuit. obviously impractical Joinder with class. is Argued 20, May and Submitted 1976. large number. this Decided Dec. questions There exists of law and fact are common to the class. Each mem- received the same treatment ber has

any granted relief would be common to all

the tenants. plaintiffs typical

The claims of the are significant that many

the class and possibly

of the tenants favor a Co., Herbst v. ITT

deposit. See 495 F.2d 1974), and see also Mills v. Auto-Lite

Electric U.S. all, (1970). 24 L.Ed.2d 593 After

S.Ct.

the claims need not be identical and the supported that certain of the tenants

fact imposition security deposit is not Fully recognizing

the answer. the areas of *7 discretion, court I submit that the ex- of a class is not to

istence be determined presence of some of the group members expressed opposition

who have to a class apparent, representa-

From all that is parties fairly adequately represent

tive Their attorney

the interests of the class.

qualified representative plaintiffs antagonistic not have which are

do interests

to the class. saying I am not this case

Finally, pursued

should be as a class action. I mere-

ly say analysis of its worth as a