Scarborough v. Winn Residential

• Citation: 890 A.2d 249
• Decision Date: 12 January 2006
• Docket Number: No. 05-CV-207.,05-CV-207.
• Parties: Santosha SCARBOROUGH, Appellant, v. WINN RESIDENTIAL L.L.P./ATLANTIC TERRACE APARTMENTS, Appellee.
• Court: D.C. Court of Appeals

890 A.2d 249

Santosha SCARBOROUGH, Appellant, v. WINN RESIDENTIAL L.L.P./ATLANTIC TERRACE APARTMENTS, Appellee.

No. 05-CV-207.

District of Columbia Court of Appeals.

Argued September 20, 2005.

Decided January 12, 2006.

COPYRIGHT MATERIAL OMITTED

Nathan A. Neal, Supervising Attorney, D.C. Law Students in Court Program, with whom Ann Marie Hay, Executive Director, D.C. Law Students in Court Program, was on the brief, for appellant.

Frederick A. Douglas, Washington, with whom Margaret McFarland and Melinda Bolling, District of Columbia Housing Authority, and Monica E. Monroe, Philip Felts, and Lisa J. Dessel, were on the brief, for appellee.

Barbara McDowell, Julie H. Becker, Patricia Mullahy Fugere, Antonia K. Fasanelli, Amber W. Harding, Vytas Vergeer, and Rebecca Lindhurst filed a brief amici curiae on behalf of The Legal Aid Society of the District of Columbia, Bread for the City, and Washington Legal Clinic for the Homeless.

Kenneth L. Wainstein, United States Attorney, and Michael J. Ryan and Alan Burch, Assistant United States Attorneys, filed a brief amicus curiae on behalf of the United States.

Before FARRELL and REID, Associate Judges, and KING, Senior Judge.

FARRELL, Associate Judge:

Appellant Santosha Scarborough is a tenant of the Atlantic Terrace Apartments, a housing complex for which the federal government provides subsidized housing to tenants under HUD's Section 8 housing Moderate Rehabilitation ("Mod Rehab") Program, pursuant to 42 U.S.C. § 1437f. Following a trial, the Superior Court entered a judgment of possession in favor of Winn Residential L.L.P./Atlantic Terrace Apartments (collectively, "the Landlord") after finding that Ms. Scarborough had violated a condition of her lease that prohibits, under pain of lease termination, criminal activity on the premises that threatens the health, safety, or right to peaceful enjoyment of other tenants. Specifically, the court found that Scarborough was responsible for the presence in her apartment of a loaded 12-gauge shotgun that had been used in a fatal shooting there the previous day.

On appeal, Scarborough raises a series of issues, chief of which is that the judgment of possession is invalid because, before initiating the suit for eviction, the Landlord did not comply with D.C.Code § 42-3505.01(b) (2001) by giving her a "notice to correct the violation" within thirty days. We reject this argument because we conclude that the requirement of a notice and opportunity to correct (or "cure") as applied to criminal activity — such as possession of the loaded shotgun in this case — that endangers the safety or right to peaceful enjoyment of other tenants may not be imposed consistently with the federal statute and regulations governing appellant's tenancy. And because we reject appellant's other arguments as well, we affirm the judgment of possession.

I.

Scarborough has been a tenant of the Atlantic Terrace Apartments since 1999 under a lease requiring her to pay a fixed amount each month toward the market-based rent, with the balance paid to the Landlord by way of a HUD Section 8 subsidy. Her lease, which was for an initial one-year period to continue month-to-month thereafter, includes a paragraph (no. 23) which states, among other things, that the Landlord may terminate the lease for four reasons: (1) material non-compliance; (2) material failure to carry out lease obligations; (3) criminal activity; and (4) other good cause.¹

Evidence largely undisputed at trial established that on December 12, 2002, Scarborough's cousin, Delante Simmons, entered her apartment after he had been drinking and began an altercation with her. Scarborough's boyfriend, Desmond Barr, who was also present, withdrew a shotgun (from where it is not apparent) and fatally shot Simmons. Executing a search warrant for the apartment the next day, the police found a loaded twelve-gauge semi-automatic shotgun next to the water heater in the furnace room, a loaded semi-automatic pistol under the seat cushion of a couch, a box of Remington shotgun ammunition containing twenty-three shotgun shells, and a box of cartridges for the semi-automatic pistol. Barr was later acquitted of second-degree murder (the jury apparently accepting his claim of self-defense) but convicted of possession of an unregistered firearm and ammunition.

As a result of the shooting and the shotgun possession, the Landlord enlisted Karl Stevens, a professional process server, to serve a Notice to Quit on Scarborough. Twice in February 2003, Stevens unsuccessfully tried to hand deliver the notice to her at her apartment. On February 15, 2003, he posted the notice on her apartment door and then went to the post office and mailed copies of the notice to her and the District of Columbia Department of Regulatory Affairs. The Notice to Quit stated:

[Y]ou are in violation of your lease by endangering the health and safety of other residents by having a firearm on the premises. Specifically, on or about December 12, 2002 a homicide was committed on the apartment property. On that same date, members of the Metropolitan Police Department conducted a search of your apartment and located a gun which was believed to have been involved in the homicide. In any event, maintaining a gun on the property violates the terms of your lease, HUD regulations and is a crime in the District of Columbia.

The notice required Scarborough to vacate the premises by March 25, 2003. It did not provide her with an opportunity to cure the lease violation.

At trial on the Landlord's suit for possession, the judge first rejected Scarborough's contention that the written notice failed to apprise her adequately of the basis for the eviction.² He then rejected her argument that the notice was insufficient too by not giving her the thirty-day opportunity to correct the violation provided by D.C.Code § 42-3505.01(b). The judge assumed that by its terms this statute requires a notice to correct be given even where eviction is sought for dangerous criminal activity on the premises, but ruled that federal regulations governing Scarborough's tenancy "supersede[d]" District law in this regard and "preclude[d]" an opportunity to correct or cure in these circumstances. "[I]f there were a right to cure," the judge explained, "that would effectively gut the import of the federal regulations on this point, namely that endangering health and safety justifies a termination [for a violation] that cannot be cured."

II.

D.C.Code § 42-3505.01(b), part of the District's Rental Housing Act first adopted by the Council of the District of Columbia in 1985, states 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." When applicable, compliance with this provision is necessary before a landlord may institute eviction proceedings. See, e.g., Cooley v. Suitland Parkway Overlook Tenants Ass'n, 460 A.2d 574, 576 (D.C.1983) ("[A] tenant is entitled to receive [a notice to cure or vacate] before a suit to recover possession may be brought by his or her landlord for a violation of the tenancy.").

The Landlord first argues that, as a matter of statutory interpretation, this section was not intended to afford a tenant an opportunity to "correct" a breach of the lease consisting of criminal activity. The Landlord cites in this regard the reasoning of a Superior Court judge in an unrelated case where eviction had been sought based on the tenant's armed assault on another tenant on the premises. The judge stated there that § 42-3505.01(b)

does not necessarily require landlords to provide a notice to cure when there is evidence that a tenant committed a discrete criminal act in violation of the lease . . . . This section seems logically to apply to a tenant who is committing an ongoing violation of the lease by, e.g., keeping a pet, smoking, or failing to keep a unit sanitary. In such an instance, the tenant "is violating" the lease, and the landlord could send a notice to cure or vacate, providing the tenant with a 30-day period "to correct the violation." In contrast, on its face, this section seems less likely to apply to a tenant who violates a lease by committing a discrete criminal act. A tenant committing such an act is not "violating" the lease, but has already violated it.

District of Columbia Hous. Auth. v. Cherry, No. 03-LT-15931 (D.C.Super.Ct. January 20, 2004)(Boasberg, J.). The judge pointed to the "absurd results" a contrary reading would entail:

[W]hat would a tenant be required to do to cure? Simply commit no further crimes of the same sort? No further crimes of any sort? In this case, Defendants must press the strained claim that Ms. Cherry could cure by not assaulting other tenants for a month. Taken one step further, this reasoning means that a tenant who murdered another tenant could not be evicted as long as he refrained from killing anyone else — or perhaps from committing other crimes — for 30 days. This cannot be what the law is.

On the basis of that reasoning, the Landlord urges us to hold, as a matter of District law, that § 42-3505.01(b) does not apply to evictions sought for alleged criminal activity, whether "discrete" criminal acts or ongoing criminal activity.

The argument has considerable force. Although the grounds for eviction here were not an armed assault but possession of a loaded shotgun (though one that had been used to kill someone the day before), it would be little comfort to fellow residents that a tenant who has endangered their safety by permitting criminal activity on the premises promises to refrain from doing so again. And, as a textual matter, it seems implausible that the D.C. Council meant for either discrete (i.e., completed) or continuing criminal activity to be "correct[ible]" upon such assurances before...