Houle v. Quenneville

Decision Date09 November 2001
Docket NumberNo. 00-034.,00-034.
PartiesCharles and Eileen HOULE v. Kevin QUENNEVILLE and Louisa Lewis.
CourtVermont Supreme Court

John F. Nicholls and David H. Gregg of Abare, Nicholls & Associates, P.C., Barre, for Plaintiffs-Appellees.

John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for Defendants-Appellants.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Tenants Kevin Quenneville and Louisa Lewis appeal the order granting landlords Charles and Eileen Houle possession at the expiration of the rental term. Tenants contend: (1) landlords' notice of nonrenewal of their lease was insufficient because landlords did not provide the Vermont State Housing Authority (VSHA) with a contemporaneous copy of the notice; (2) the court failed to properly allocate the burden of proof on tenants' retaliatory eviction defense; and (3) the court erred in finding that the evidence was insufficient to support a retaliatory eviction. Because the requirements for notice to the VSHA do not apply to a notice of nonrenewal of a lease and the court properly found that tenants had failed to sustain their burden of proving their affirmative retaliatory eviction defense, we affirm.

On November 3, 1998, landlords and tenants executed a written rental agreement regarding the rental of an apartment in Barre, Vermont. The tenancy was subsidized by Section Eight housing assistance administered by the VSHA, and the parties also executed a VSHA owner-occupant lease. The term written in the lease was from November 3, 1998, to October 31, 1998. The court found that the intended expiration date of the lease was October 31, 1999. A provision of the VSHA lease provided that after the initial term "this Lease will renew on a month-to-month basis, unless the Owner [landlord] gives notice to the Tenant of Owner's intent not to renew the Lease."

Tenants took possession of the apartment on or about November 3, 1998. Shortly after taking occupancy, tenants discovered some problems, including an inadequate supply of hot water, a running toilet, leaking shower hose, falling window glazing, and a roll of carpet matting and other debris on the back porch. Tenants notified landlords of the problems. Landlords did not immediately correct the problems, and on March 28, 1999, tenants mailed a letter to landlords detailing the infirmities and informing landlords that tenants would withhold their rent if landlords did not contact tenants within twenty-four hours to make arrangements to resolve the problems. Upon receiving the note, landlords confronted tenants and threatened to bring an action against them for violating the lease by disturbing other tenants. Landlords stated that they would only repair the toilet and asked tenants to voluntarily terminate the lease. Subsequently, landlords served tenants with a notice to vacate the premises by April 30, 1999, asserting tenants had harassed other tenants in violation of the lease. Upon delivering the notice, the sheriff changed the vacate date to May 8, 1999. Tenants then contacted the Building/Electrical Inspector for the City of Barre complaining about the problems with the apartment. After inspecting the premises, the inspector notified landlords that the debris on the porch landing constituted a fire hazard and must be removed.

Tenants did not quit the premises on April 30, or May 8, 1999, and landlords commenced an eviction action alleging tenants had violated the terms of the VSHA lease by disturbing other tenants. Tenants answered landlords' eviction complaint by denying that they had breached the terms of the rental agreement and raising the affirmative defenses that: (1) pursuant to 9 V.S.A. § 4467(b), notice to terminate tenancy for breach of the rental agreement must be served on the tenant at least thirty days before the termination date specified in the notice; and (2) the attempted eviction was in retaliation for tenants' actions in reporting health and safety code violations and other lawful activity by tenants to enforce landlords' obligation to maintain premises in a safe and sanitary condition.

Trial was set for July 7, 1999, but was continued on tenants' motion because discovery was not complete and landlords had recently retained counsel. Trial was rescheduled for October 8, 1999. On September 24, 1999, landlords served tenants with a written notice of intent not to renew the lease at its expiration on October 31, 1999. By this time, landlords had repaired many of the problems with the apartment, including the broken windows and shower and removed the carpet matting and debris from the porch. At a pretrial conference on September 27, 1999, the parties agreed to a continuance. The entry order of that date summarizing the reason for the continuance notes: "[tenants'] lease expires at the end of October and they have been given notice to leave. If they leave, no issue. If not, there will be new issues. [Landlords] will notify court of dismissal if [tenants] leave."

Tenants did not vacate the apartment, and the matter came to trial on December 15, 1999. The court granted landlords' motion to amend their complaint to seek possession based on nonrenewal of the lease and the fact that tenants were holding over after the lease term. Tenants asserted that notwithstanding landlords' withdrawal of their eviction claim, the defense of retaliatory eviction was applicable to landlords' claim for possession based on nonrenewal because landlords still possessed a "retaliatory motive" for seeking to terminate tenants' possession of the apartment. Tenants also argued that landlords' September 24, 1999, notice of nonrenewal to tenants was defective because landlords did not provide VSHA with a contemporaneous copy of the notice.

The court concluded that the September 24, 1999 notice of nonrenewal was sufficient because the VSHA requirement that it receive a copy of landlords' notice to tenants is triggered only when landlords have initiated a complaint for eviction or other court action that would terminate a tenancy before the expiration of the lease. The court also concluded that to the extent VSHA required a contemporaneous notice of a court action, in the instant case, the requirement was satisfied by the presence of a VSHA representative at the December 15, 1999 hearing. The court further determined that landlords, although originally seeking to evict tenants in retaliation for tenants' threat to withhold rent and notify authorities about problems with the premises, did not have a retaliatory motive in deciding not to renew tenants' lease. The court emphasized the fact that most of the repairs had been completed and landlords had elected not to proceed with their eviction case, seeking instead possession based on tenants holding over after the expiration of the lease term.

I. Notice of nonrenewal

Tenants first challenge the court's conclusion that landlords were not required to serve VSHA with a contemporaneous notice of their intent not to renew the lease. Tenants assert that neither landlords' April 1, 1999 notice to terminate the tenancy on good cause grounds, nor the September 24, 1999 notice of nonrenewal, was served on VSHA, and therefore, landlords failed to terminate the tenancy as required under the VSHA lease. In the original eviction action precipitated by the April 1, 1999 good cause notice to terminate, tenants failed to allege insufficiency of the notice based on failure to serve a contemporaneous copy on VSHA. At trial, tenants' claim regarding failure to serve a contemporaneous notice on VSHA was limited to the September 24, 1999 notice of nonrenewal. Tenants have waived their claim that the April 1, 1999 notice was insufficient because it was not served on VSHA. See In re M.M., 159 Vt. 41, 44, 613 A.2d 713, 715 (1992) (failure to raise arguments below amounts to a waiver).

Moreover, the court granted landlords' motion to amend their complaint to abandon the original eviction action and to proceed on the action for possession based on nonrenewal of the lease. At trial, tenants conceded that the insufficiency of the earlier notice had no relevance to the case in light of the court's ruling granting the amendment. Tenants have chosen not to appeal that part of the court's decision, and we will not disturb it here.

Regarding the September 24, 1999 notice of nonrenewal letter, tenants argue that it was invalid because Paragraph 13(b) of the VSHA owner-occupant lease unambiguously requires a landlord to serve tenant and VSHA with notice whenever a landlord seeks to terminate a tenancy for any reason. Paragraph 13 provides, in pertinent part:

13. Owner Termination Notice:
A. Notice of grounds. The Owner [landlord] must give the Tenant a notice that specifies the grounds for termination of tenancy. The notice of grounds must be given at or before commencement of the eviction action. The notice of grounds may be included in or may be combined with any Owner eviction notice to the Tenant.
B. State or local eviction notice. Owner eviction notice means notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action. The Owner must give the [VS]HA a copy of any Owner eviction notice to the Tenant at the same time the Owner gives notice to the Tenant.

VSHA Owner-Occupant Lease, Paragraph 13 (emphasis added). The plain meaning of the lease provision demonstrates its applicability only to eviction actions or actions to remove the tenant and terminate the tenancy on sufficient grounds during the lease term. In re West, 165 Vt. 445, 450, 685 A.2d 1099, 1103 (1996) ("When an agreement is clear and unambiguous, the plain meaning of the agreement governs its interpretation."). Indeed, the VSHA lease distinguishes between termination of the tenancy during the lease term and termination at the expiration of the lease term. During the term of the lease, the owner may terminate the tenancy...

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