Dunbar Housing Authority v. Nesmith, 19605
| Decision Date | 14 December 1990 |
| Docket Number | No. 19605,19605 |
| Citation | 400 S.E.2d 296,184 W.Va. 288 |
| Court | West Virginia Supreme Court |
| Parties | DUNBAR HOUSING AUTHORITY v. Virginia NESMITH. |
Syllabus by the Court
1. The question of whether a landlord of a federal low-income housing project has waived a breach of the lease by accepting the tenant's rent payments is ordinarily controlled by state law.
2. The general rule is that a lessor waives his right to forfeit a lease or is estopped from enforcing a forfeiture for a breach of covenant or condition in a lease when, after such breach of covenant or condition, he accepts subsequently accruing rent from his tenant with knowledge or full notice of such breach, unless there are circumstances to negative the presumption of his affirmance of the continuance of the lease which arises from his acceptance of rent.
3. Where a lease has a nonwaiver clause to the effect that the landlord does not waive a breach of the lease by accepting rent with knowledge of such breach, then the acceptance of such rent is not a waiver.
4. Where a tenant has refused to vacate the premises upon being given notice of breach of lease conditions, the landlord may accept rent for the holdover occupancy without waiving his claim of breach.
5. Whether the landlord has waived a breach of the lease by accepting rent is a question of intent based on the particular facts of the case.
Mark E. Kauffelt, Kauffelt & Kauffelt, Charleston, for Dunbar Housing Authority.
David Anthony Sade, Legal Aid Soc. of Charleston, Charleston, for Virginia Nesmith.
In this appeal, Dunbar Housing Authority (DHA) complains of a ruling of the Circuit Court of Kanawha County, which dismissed its suit to evict Virginia Nesmith, a tenant. The circuit court ruled that because DHA had accepted rent on behalf of Ms. Nesmith after giving notice of intent to evict, it had waived the claimed breach of the lease and was precluded from maintaining the eviction proceedings as a matter of law. We disagree.
DHA operates a federally subsidized housing project in Kanawha County pursuant to provisions of Title 24 of the Code of Federal Regulations (C.F.R.). Under Subpart B, Section 966.50, et seq., a tenant in such a project is entitled to timely notice of termination of the lease and a right to a grievance hearing by a panel selected by the parties. Until the panel decides the grievance, the landlord may not institute eviction proceedings. 1
On April 28, 1989, DHA issued a notice of termination of the lease to Ms. Nesmith stating that she had violated the lease by allowing an unauthorized person, her brother, to reside in her apartment, by failing to report his income, and by giving false information to DHA as to her income and family composition. Ms. Nesmith sought a grievance hearing. On August 16, 1989, a hearing was held, and, on August 29, 1989, the hearing panel issued an opinion in favor of DHA. Thereafter, DHA served Ms. Nesmith with a thirty-day notice to vacate.
When Ms. Nesmith failed to vacate by October 1, 1989, DHA filed suit to have her evicted pursuant to W.Va.Code, 55-3A-1, et seq. 2 The case was removed to circuit court, and trial was set for November 30, 1989. Prior to trial, Ms. Nesmith filed a motion to dismiss in which she claimed that DHA had accepted rental payments after the original notice to terminate and, therefore, had waived its right to evict. The circuit court agreed and dismissed the suit.
We begin by observing that we are dealing with a federally funded low-income housing project where the landlord-tenant relationship is controlled to some extent by federal statute and by regulations of the Department of Housing and Urban Development (HUD). In addition to the rent paid by the tenant, the landlord receives a rent supplement payment from HUD. A landlord's right to terminate the lease is restricted not only by the grievance procedures outlined in Part I, supra, but also by 24 C.F.R. § 880.607(a) and (b). 3 However, it appears that the question of whether a landlord of a federal low-income housing project has waived a breach of the lease by accepting the tenant's rent payments is ordinarily controlled by state law. East Lake Management & Dev. Corp. v. Irvin, 195 Ill.App.3d 196, 141 Ill.Dec. 279, 551 N.E.2d 272 (1990); Housing Auth. for LaSalle County v. Little, 64 Ill.App.3d 149, 21 Ill.Dec. 25, 380 N.E.2d 1201 (1978); Housing Auth. of Town of Lake Providence v. Allen, 486 So.2d 1064 (La.App.1986); Housing Auth. of Town of Lake Providence v. Burks, 486 So.2d 1068 (La.App.1986); Corcoran Management Co. v. Withers, 24 Mass.App. 736, 513 N.E.2d 218 (1987); Brockton Hous. Auth. v. Williams, 14 Mass.App. 955, 437 N.E.2d 1085 (1982); Minneapolis Community Dev. Agency v. Powell, 352 N.W.2d 532 (Minn.App.1984); Greenwich Gardens Assocs. v. Pitt, 126 Misc.2d 947, 484 N.Y.S.2d 439 (1984); Akron Metro. Hous. Auth. v. Myers, 30 Ohio App.3d 100, 30 O.B.R. 199, 506 N.E.2d 933 (1986). 4
The precise issue in this case is whether DHA has waived its right to enforce the breach of the lease arising from Ms. Nesmith's failure to correctly report family income and composition. Our cases have recognized the general rule that a landlord may waive a claim of lease forfeiture, if, with knowledge of the forfeiture, 5 the landlord continues to accept rent, as indicated by Syllabus Point 3 of Hukill v. Myers, 36 W.Va. 639, 15 S.E. 151 (1892):
"If, after such rental has accrued and is not paid, whereby a forfeiture exists, the lessor with knowledge thereof receives the rentals accruing after forfeiture, he waives and can not enforce the forfeiture." 6
This statement in Hukill might be taken as dictum, since the Court found that the landlord had in the past accepted late rent payments and, therefore, had waived his right to claim a forfeiture when the rent payment was late. 7 A more elaborate discussion of this area of the law was made by Justice Haymond in Fredeking v. Grimmett, 140 W.Va. 745, 760, 86 S.E.2d 554, 563 (1955):
"The well established general rule is that a lessor waives his right to forfeit a lease or is estopped from enforcing a forfeiture for a breach of covenant or condition in a lease when, after such breach of covenant or condition, he accepts subsequently accruing rent from his tenant with knowledge or full notice of such breach, unless there are circumstances to negative the presumption of his affirmance of the continuance of the lease which arises from his acceptance of rent[.]"
We have not had occasion to determine what circumstances are sufficient, in the words of Fredeking, "to negative the presumption of his affirmance of the continuation of the lease which arises from his acceptance of rent." In Jefpaul Garage Corp. v. Presbyterian Hospital of New York, 61 N.Y.2d 442, 474 N.Y.S.2d 458, 462 N.E.2d 1176 (1984), New York's highest court identified one obvious circumstance, stating that where the lease has a nonwaiver clause to the effect that the landlord does not waive a breach of the lease by accepting rent with knowledge of such breach, courts generally hold that the acceptance of rent is not a waiver. The court in Jefpaul pointed out that to hold otherwise would "frustrate the reasonable expectations of the parties embodied in a lease[.]" 61 N.Y.2d at 446, 474 N.Y.S.2d at 460, 462 N.E.2d at 1178. See also Slater v. Krinsky, 11 Mass.App. 941, 416 N.E.2d 983 (1981); Minneapolis Community Dev. Agency v. Powell, supra; First Union Management, Inc. v. Slack, 36 Wash.App. 849, 679 P.2d 936 (1984).
Some courts have determined that where the tenant has refused to vacate the premises upon being given notice of breach of lease conditions, the landlord may accept rent for the holdover occupancy without waiving his claim of breach. See T.H. Properties v. Sunshine Auto Rental, Inc., 151 Ariz. 444, 728 P.2d 663 (App.1986); Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982); Chertkof v. Southland Corp., 280 Md. 1, 371 A.2d 124 (1977); Haack v. Great Atlantic & Pac. Tea Co., 603 S.W.2d 645 (Mo.App.1980). See generally 49 Am.Jur.2d Landlord & Tenant § 1071 (1970); Annot., 109 A.L.R. 1267 (1937). Moreover, in recognition of the diverse facts that can exist within the landlord-tenant relationship, it is generally accepted that whether the landlord has...
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