Cormier v. McRae

• Decision Date: 12 May 1992
• Docket Number: No. 90-CV-1012.,90-CV-1012.
• Citation: 609 A.2d 676
• Parties: David CORMIER, Appellant, v. James McRAE, Appellee.
• Court: D.C. Court of Appeals

609 A.2d 676

David CORMIER, Appellant, v. James McRAE, Appellee.

No. 90-CV-1012.

District of Columbia Court of Appeals.

Submitted February 18, 1992.

Decided May 12, 1992.

Gary D. Wright, Washington, D.C., submitted a brief, for appellant.

Carol S. Blumenthal, Washington, D.C., submitted a brief, for appellee.

Before FERREN, FARRELL and KING, Associate Judges.

FERREN, Associate Judge:

In this landlord's action for possession of an apartment, the trial court granted summary judgment for the tenant-appellee. The tenant successfully argued that, although he had received a 30-day "notice to cure or vacate" pursuant to D.C.Code § 45-2551(b) (1990) (Rental Housing Act of 1985), the landlord-appellant had failed to comply with the further requirement of D.C.Code § 45-1402 (1990) that a notice "to quit" a month-to-month tenancy must be given, not merely 30 days in advance of termination, but at least 30 days before the end of a rental period and thus at least 30 days before the date on which a new month-to-month tenancy would otherwise begin. To the contrary, the landlord argued that § 45-2551(b) supersedes — implicitly repeals — § 45-1402 as applied here, and thus that, in order to evict the tenant, the landlord was not required to provide a notice to quit expiring on the very day the lease had commenced. Although we analyze the issue somewhat differently from the landlord's approach, we agree that § 45-1402 is inapplicable. Accordingly, we reverse.

I.

On February 24, 1976, the tenant signed a one-year lease for an apartment on the third floor of 3228 Hiatt Place, N.W., for the period March 24, 1976 through March 23, 1977. When the lease expired, the tenant stayed on month-to-month. On February 27, 1990, the landlord served the tenant with a 30-day notice to cure or vacate that expired on March 31, 1990. The notice was based on the following alleged violations of the lease:

not notifying landlord of repair work needed; repeated refusal to allow access to apartment to begin repairs; allowing extra people to occupy the apartment; refusal to pay $480 for theft of electricity; repeated threats to landlord; endangering the health and safety of all tenants by opening fire doors.

When the tenant failed to cure the violations or to vacate the apartment, the land-lord filed a suit for possession in the Land-lord and Tenant Branch of Superior Court on April 4, 1990.

The tenant moved to dismiss or, in the alternative, for summary judgment, basing his argument on two statutes. D.C.Code § 45-2551(b) directs that:

A housing provider may recover possession of a rental unit where the tenant is violating an obligation of tenancy and fails to correct the violation within 30 days after receiving from the housing provider a notice to correct the violation or vacate.

The earlier statute, D.C.Code § 45-1402 (enacted in 1901), similarly provides for terminating a month-to-month tenancy with a 30-day written notice to quit, but § 45-1402 directs that the notice must expire "on the day of the month from which such tenancy commenced to run."

The trial court concluded that the 30-day notice requirement of § 45-2551(b) applied but that § 45-1402 still governed the timing of the notice. The court accordingly accepted the tenant's argument that the landlord should have given notice 30 days or more before the day of the month on which the lease began to run. The trial court reasoned that, because the landlord notified the tenant to cure or vacate by March 31, 1990, the landlord — to achieve that goal — should have given notice no later than February 22, 1990, 30 days before March 24, the day the monthly tenancy began.¹ The tenant, however, did not receive notice until February 27, 1990. The trial court ruled that because the notice did not satisfy § 45-1402, the landlord was not entitled to sue for possession and granted the tenant's motion for summary judgment.

II.

In reviewing a summary judgment order, our standard is the same as the trial court's. See Taylor v. Eureka Inv. Corp. 482 A.2d 354, 357 (D.C.1984). We examine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super.Ct.Civ.R. 56(c). In so doing, we must examine all facts in the light most favorable to the non-moving party. See Thompson v. Shoe World, Inc., 569 A.2d 187, 189 (D.C.1990).

The central question is whether the § 45-1402 timing requirement for a "notice to quit" applies when a landlord wishes to evict a month-to-month tenant for breach of a covenant — now called an "obligation of tenancy," D.C.Code § 45-2551(b) — in the lease.

A.

It is important, first, to note the common law origins of § 45-1402 and how rent control legislation has affected that statute. At common law, either party could terminate a periodic (e.g., month-to-month) tenancy, without claiming a breach of the lease, merely by giving adequate notice. More specifically, under the common law, "notice a full period in advance of the end of a period was required." 1 A. JAMES CASNER, ET AL. AMERICAN LAW OF PROPERTY § 3.23 at 222 (1952); see id. § 3.90 at 377. In keeping with the common law, Congress in 1901 enacted the predecessor of the present § 45-1402, codifying for the District of Columbia the requirement that the 30-day notice required for terminating a month-to-month or quarter-to-quarter tenancy must expire "on the day of the month from which such tenancy commenced to run." Act of Mar. 3, 1901, ch. 854, § 1219, 31 Stat. 1382 (establishing District of Columbia Code).

In contrast with § 45-1402, Congress adopted in 1901 what is now D.C.Code § 45-1401 (1990) to govern leases of real estate "for a certain term," entitling a landlord to sue for possession without notice to quit "immediately upon the expiration of the term." Similarly, D.C.Code § 45-1404 (1990), adopted in 1901 to govern "tenancies by sufferance," entitles a landlord to terminate the tenancy "at any time" but, akin to § 45-1402, requires a "notice in writing ... to quit the premises leased," though not a specified number of days in advance.²

In Jack Spicer Real Estate, Inc. v. Gassaway, 353 A.2d 288 (D.C.1976), we interpreted the impact of rent control regulations on these sections of the Code. In that case, the landlord filed suit for possession after serving a tenant at sufferance with a simple notice to quit under § 45-1404, without including any of the reasons for eviction specified in Section 10 of the District of Columbia Rent Control Regulation No. 74-20. We held that the simpler, "conflicting" termination provisions codified at §§ 45-1401 and 45-1404 "must yield to more recently enacted rent control regulations" requiring a notice showing a legitimate reason for termination. Jack Spicer, 353 A.2d at 291-92.

Similarly, in Administrator of Veterans Affairs v. Valentine, 490 A.2d 1165, 1170 (D.C.1985), we held that D.C.Code § 45-1561 (1981) — a statute incorporating provisions similar to those in Rent Control Regulation No. 74-20, which had been applied in Jack Spicer — "superseded the earlier enacted D.C.Code §§ 45-222 and 45-1403." These earlier enacted provisions had permitted termination of tenancies at will merely by giving 30 days notice in writing by either party. Valentine, 490 A.2d at 1167.

D.C.Code § 45-1561 (1981) (construed in Valentine), governing evictions under the Rental Housing Act of 1980, replaced Rent Control Regulation No. 74-20, see D.C.Law 3-131, § 501 (Mar. 4, 1981) (construed in Jack Spicer). Similarly, D.C.Code § 45-2551 (1990), governing evictions under the Rental Housing Act of 1985, has supplanted former § 45-1561, in some instances with identical eviction provisions. See D.C.Law 6-10, § 501 (July 17, 1985); D.C.Law 6-192, § 13(g) (Feb. 24, 1987). Jack Spicer and Valentine, therefore, indicate — for purposes of this case — that after enactment of a series of rent control statutes, no basis remains for saying that a housing landlord³ could still use § 45-1402, any more than §§ 45-1401, -1403, or -1404, to terminate a tenancy without giving a valid reason specified by statute.

B.

The fact that a landlord subject to § 45-2551 no longer may terminate a month-to-month tenancy under § 45-1402 without giving an adequate statutory reason, however, still leaves a critical question: given the required 30-day notice under both § 45-1402 and § 45-2551(b), does the timing provision of § 45-1402 nonetheless apply here? The answer has to be no, not because the two provisions conflict — § 45-2551(b) contains no timing provision — but because our statutory and case law have removed all right of a residential landlord subject to § 45-2551 to use § 45-1402 for any purpose. As we shall see, the 1980 Rental Housing Act withdrew from residential landlords the right to give merely a notice to quit, as such, for breach of a lease obligation (other than for nonpayment of rent) and, as a result, left no room for § 45-1402, including its timing provision, to apply in such a case.

In Jones v. Brawner Co., 435 A.2d 54 (D.C.1981), the landlord sued for possession of an apartment alleging the tenant had willfully and consistently failed to pay rent on time. Two statutes applied: D.C.Code § 45-1699.6(b)(1) (1980 Supp.) — part of the 1977 Rental Housing Act — required a "notice to cure";⁴ D.C.Code § 45-906 (1973), called for a "notice to quit."⁵ This court indicated that these two notices were different documents, not only because their purposes were obviously different but also because service of process on a tenant under § 45-906, including substituted service, was different than that allowed under the 1977 Rental Housing Act. Id. at 56. We reversed the judgment of possession in favor of the landlord because the landlord had failed to meet the service requirements of § 45-906. In doing so, we rejected the...