Nelbach v. Nelbach
| Docket Number | 22-CV-0200 |
| Decision Date | 06 April 2023 |
| Citation | 291 A.3d 1129 |
| Parties | Theodore Albert NELBACH, Appellant, v. Willow NELBACH, Appellee. |
| Court | D.C. Court of Appeals |
Anna L. Nathanson for appellant.
David E. Bateman, with whom Daniel M. Rathbun, Fairfax, VA, was on the brief, for appellee.
Before Beckwith, Easterly, and McLeese, Associate Judges.
The concept of "waste" with respect to real property in American law is many centuries old and traces back to statutes enacted in the 13th century by the nascent English Parliament. Our focus in this case is on one of these statutes, the Statute of Gloucester. As translated in the mid-1700s from its original Norman French, the Statute in relevant part defines the "Several Tenants against whom an Action of Waste is maintainable." 6 Edw. 1 c. 5 (1278). Approximately 600 years later, the Statute of Gloucester became part of D.C. law. Its archaic language is still largely preserved in D.C. Code § 42-1601, which provides in full:
A man from henceforth shall have a writ of waste in the chancery against him that holdeth by law, or otherwise for term of life, or for term of years; and he which shall be attainted of waste, shall lease the thing that he hath wasted, and moreover shall recompense thrice so much as the waste shall be taxed at.
In contemporary English, we understand this statute to say that a party holding a future interest in real property may sue the tenant for life or years for "waste" that the property suffers, and if successful in such a suit, the party is entitled to both the tenant's interest in the property and treble damages.
With this dual remedy, the statute packs quite a punch. But when is it properly invoked? More specifically, what constitutes waste? Neither the Statute of Gloucester nor the D.C. Code defines this term, and this court has never supplied a definition. This case requires us to consider the meaning of "waste" in D.C. Code § 42-1601 and in particular to determine whether a property tax arrearage that triggers a notice of delinquency and possible foreclosure by the District of Columbia can, as a matter of law, support a judgment of waste. We hold that it cannot. Based on the history of the District's waste statute and the evolution of like statutes in other jurisdictions, we conclude that the harsh consequences to a life tenant who commits "waste" are rooted in the gravity and irreversibility of the injury suffered by the holder of the remainder interest. But under the District's current property tax scheme, an arrearage does not automatically or inevitably lead to dire consequences; even after the District has initiated proceedings for a tax sale, the pre-existing owner or owners retain the right of redemption up until a judgment foreclosing that right becomes final. To hold that a tax arrearage alone constitutes waste would skew the incentives of the person with a remainder interest in the property in a way that we conclude is antithetical to the waste doctrine.
Accordingly, we vacate the Superior Court's order concluding that appellant Theodore Nelbach wasted his life tenancy in the property at 4517 Clay Street NE within the meaning of D.C. Code § 42-1601 by allowing a tax arrearage to accrue and granting summary judgment to remainderperson and appellee Willow Nelbach on her action against Mr. Nelbach for forfeiture of the property and treble damages.
Following the death of the owner of 4517 Clay Street NE, Mr. Nelbach and Ms. Nelbach each received an interest in this residential property in 2015. Mr. Nelbach became a life tenant, while Ms. Nelbach was given the remainder interest. Mr. Nelbach took possession of the property to use as a rental unit. In the second half of 2017, the property began to accrue a balance of unpaid real estate taxes. Although Mr. Nelbach appears to have made partial payments on the tax balance in 2019 and 2021, by early 2021 the accumulated arrearage, interest, and fees amounted to nearly $7,000.
In April 2021, the District issued a Notice of Delinquency regarding unpaid taxes on the property. The notice identified Mr. Nelbach as the "owner" and near the top of the page warned, "FAILURE TO PAY TAXES IMMEDIATELY MAY HAVE SERIOUS CONSEQUENCES, WHICH MAY INCLUDE LOSS OF TITLE TO THE PROPERTY." After identifying the property by lot number and address, it stated, "TO AVOID TAX SALE YOU MUST PAY $6,955.78 by May 31, 2021." Immediately below this language, however, the notice indicated that payment could be made, albeit for a greater amount, after May 31, 2021, and still prevent the tax sale. The notice also explained that no real property would be sold at a tax sale for less than $2,500. After unsuccessfully demanding that Mr. Nelbach pay the taxes owed, Ms. Nelbach submitted a payment of $5,600 to the District on May 29, 2021, reducing the arrearage to $2,126.26.
A few weeks later, in June 2021, Ms. Nelbach filed a complaint in Superior Court for waste under D.C. Code § 42-1601,1 asserting that Mr. Nelbach's "failure to pay the taxes and liabilities associated with the Property constitute[d] waste of the same"2 and requesting treble damages and termination of Mr. Nelbach's life tenancy. Answering the complaint pro se, Mr. Nelbach conceded that Ms. Nelbach had paid $5,600 in outstanding taxes and said he would be "happy" to reimburse Ms. Nelbach for "her contributions to the tax." But he disputed that his failure to pay taxes constituted waste and "disagree[d] that [he] ha[d] forfeited [his] interest in the property."
Ms. Nelbach moved for summary judgment in August 2021, arguing that there were no material disputes of fact in light of Mr. Nelbach's admission "that he has not paid the real estate taxes" and that she should prevail as a matter of law on her claim for waste.3 Mr. Nelbach, by then represented by counsel, opposed Ms. Nelbach's motion in November 2021. In addition to arguing that the "history of [his] tax payment ..., the current tax balance, and the imminence of a tax sale" were all material facts in dispute,4 he asserted that there was no law to support Ms. Nelbach's claim that "a delay in paying taxes constitutes waste" and that waste only refers to "an unreasonable or improper use of land." Ms. Nelbach filed a reply both indicating that the law was clearly in her favor because Mr. Nelbach, as the life tenant, unquestionably had an obligation to pay property taxes and arguing that Mr. Nelbach had failed to cite any case law to support his argument that his tax arrearage did not constitute waste. Both parties attached materials to their pleadings reflecting they had made additional tax payments since the commencement of the suit.
The Superior Court granted Ms. Nelbach summary judgment. First, the court concluded there were no genuine issues of material fact raised by the record. The Superior Court credited Ms. Nelbach's assertion that she had made the $5,600 payment in May 2021 to "avoid a tax foreclosure sale ... because the District of Columbia had threatened to sell the Property," the tax sale exemption for occupied properties notwithstanding. See supra notes 3-4. Addressing Mr. Nelbach's argument that he too had made payments to address the arrearage, the court noted one August 2021 payment made by Ms. Nelbach for which Mr. Nelbach had inaccurately claimed credit—but did not acknowledge the uncontroverted record evidence of other payments apparently made by Mr. Nelbach. And the court dismissed the contested amount of outstanding tax liabilities as immaterial because a "balance of any outstanding tax liabilities against the Property threatens the value and nature of [Ms. Nelbach's] remainder interest."
Based on these findings, the Superior Court concluded that Mr. Nelbach was liable for waste under D.C. Code § 42-1601.5 Echoing Ms. Nelbach's argument, the court relied on the fact that Mr. Nelbach had a well-established obligation to pay the taxes on the property. The court further reasoned that "the current unpaid tax obligation operates as a lien against the Property," which "affects and diminishes [Ms. Nelbach's] remainder interest," and that Ms. Nelbach was "not required to suffer a complete loss of her title prior to taking actions to protect" her interest from "adverse consequences (i.e., tax liens, additional interest and penalties, and tax foreclosure sales)." The court awarded Ms. Nelbach treble damages in the amount of $23,580.036 plus costs and voided Mr. Nelbach's interest such that Ms. Nelbach obtained the fee simple title to the property.
This case presents a question of statutory interpretation. Our review of the Superior Court's interpretation of a statute is de novo, as is our review of a grant of summary judgment. District of Columbia v. Place , 892 A.2d 1108, 1110-11 (D.C. 2006).
Generally, "[o]ur first step when interpreting a statute" is to examine its text, because "[t]he primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language [they have] used." Id. at 1111 (internal quotation marks omitted). In conducting this examination, "[i]t is axiomatic that the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them." Id. (internal quotation marks omitted). But what if, as is the case here, the statute we are analyzing was imported from a different place and time and was first recorded in another language, before the existence of the District and its Council,7 or the United States,8 or even the invention of the Western printing press9 and the advent of a standard written English?10 In such an unusual circumstance, we cannot understand the meaning of the text without first examining its source.
The archaic phrasing of the District's statute authorizing a claim for waste, D.C. Code § 42-1601, boasts an essentially unbroken lineage back to 1278 and the Statute of...
To continue reading
Request your trial