Winchester Van Buren v. Rental Hous. Com'n, 87-1130.

• Decision Date: 17 November 1988
• Docket Number: No. 87-1130.,87-1130.
• Citation: 550 A.2d 51
• Court: D.C. Court of Appeals
• Parties: WINCHESTER VAN BUREN TENANTS ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent. Borger Management, Inc., Intervenor.

Page 51

550 A.2d 51

WINCHESTER VAN BUREN TENANTS ASSOCIATION, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent.

Borger Management, Inc., Intervenor.

No. 87-1130.

District of Columbia Court of Appeals.

Argued October 11, 1988.

Decided November 17, 1988.

Eric S. Koenig, Washington, D.C., for petitioner. David M. Zolensky, was on the brief for petitioner, and Robert N. Sayler, Washington, D.C., entered an appearance for petitioner.

Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Asst. Corp. Counsel, Washington, D.C., filed a statement in lieu of brief for respondent.

Vincent Mark J. Policy, with whom Abraham J. Greenstein, Washington, D.C., was on the brief, for intervenor.

Before ROGERS,^* Chief Judge, and FERREN and SCHWELB, Associate Judges.

I.

SCHWELB, Associate Judge:

Judges in this city who are called upon to decide landlord and tenant controversies in general and rent control cases in particular must accustom themselves to encounters with the esoteric and the arcane. When Judge Terry, writing for the court in Afshar v. District of Columbia Rental Housing Commission, 504 A.2d 1105, 1108 (D.C. 1986), characterized one sanction for "rent ceiling" violations, the "rollback" of rent as a "mysterious creature, lie might as easily have been describing any one of a plethora of concepts in the legislation. To do well in this area of the law, a potentially bewildered jurist, more accustomed to hearing, e.g., about undercover officers purchasing crack or P.C.P. from curbside entrepreneurs, has to be able to allude as casually to a "writ of restitution"¹ as if he were saying good morning, and must not get flustered when a law student says that the client wishes to "Translux"² or demands a "Drayton stay."³ Because of the technical intricacy of many of the issues that arise and the jargon in which they are phrased, the courts depend, to a significant extent, on the expertise of the agency which is charged with making the legislation work and which deals with it every day.

In the present case, we are called upon to construe Section 208(g) of the Rental Housing Act of 1985, D.C.Code § 45-2518(g) (1981 and 1988 Supp.),⁴ which provides that

no adjustments in rent under this act may be implemented until a full 180 days have elapsed since any prior adjustment.

The landlord contends that this provision prohibits more than one increase in the actual rent charged within the 180 day-period but that it does not preclude a single rent increase based on two separate permissible upward adjustments of the rent ceiling. The tenants claim, on the other hand, that only one increase in the rent ceiling may be put into effect during the statutory period, so that even a single increase in the rent which they have to pay is unlawful if it combines more than one increase in the rent ceiling.

Plausible arguments based on the language and structure of the Act can be made for either of these interpretations. The Rental Housing Commission,⁵ however, addressed the opposing contentions in a comprehensive opinion and resolved the issue in the landlord's favor. Concluding that the agency's interpretation is neither plainly wrong nor inconsistent with the legislative purpose, Remin v. District of Columbia Rental Housing Commission, 471 A.2d 275, 279 (D.C. 1984), we must, and do, affirm

The facts are riot in dispute. The landlord, Borger Management, Inc., operates a 51-unit apartment building in northwest Washington. The tenants, Dyaz Godfrey and others, are members of the Winchester Van Buren Tenants Association. On May 7, 1985, the landlord was authorized to increase the rent ceiling at the complex by $18 per unit on the basis of "capital improvements" which had been made to the premises. See § 45-2520. The landlord was also eligible for an increase in the rent ceiling of 4.4% pursuant to § 45-2516(b), which provides for an increase of general applicability based on a rise in the consumer price index (CPI). On May 29, 1985, the landlord notified the tenants that effective July 1, 1985, the rent ceiling for each unit would be increased to reflect both of the authorized adjustments, and that the rent would be raised to the new ceiling.⁶

The tenants promptly filed a petition with the agency, alleging that the landlord's attempt to implement two rent ceiling adjustments at one time was in violation of § 45-2518(g). The Hearing Examiner agreed with the tenants and ordered the landlord to refund one of the rent increases. The Rental Housing Commission, however, reversed the Hearing Examiner's decision. The Commission held that § 45-2518(g) prohibits more than one increase within 180 days in the rent actually charged, but does not preclude the landlord from putting into effect more than one increase in the rent ceiling. The tenants have asked this court to review the Commission's decision.

III

To place the issue in this case in proper perspective, it is necessary to consider the purposes and structure of the Rental Housing Act of 1985. The Act represents a comprehensive scheme for the regulation of rental housing in the District. In passing the Act, the Council attempted to avert the economic hardships which tenants would confront in an unregulated housing market while at the same time accommodating the legitimate concerns of landlords. The statute was designed, among other things, "to protect low and moderate income tenants from the erosion of their income from increased housing costs," § 45-2502(1), and to "prevent the erosion of moderately priced rental housing while providing housing providers and developers with a reasonable rate of return on their investments." § 45-2502(5). The Act must be construed to accommodate each of these purposes. See Guerra v. District of Columbia Rental Housing Commission, 501 A.2d 786, 790 (D.C. 1985).

Critical to the operation of the Act is its differentiation between the terms "rent" and "rent ceiling." See Afshar, supra, 504 A.2d at 1107. Rent means "the entire amount of money . . . charged by a housing provider as a condition of occupancy or use of a rental unit." § 45-2503(28). In other words, rent is what the tenant actually has to pay. The "rent ceiling," on the other hand, is the sum of the "base rent,"⁷ and all duly authorized rent increases. §§ 45-2503(29), 45-2516(a). The "rent ceiling" represents, in lay terms, the most that the landlord is allowed to charge. The Act enumerates the grounds upon which the rent ceiling may be increased. § 45-2517. The basic premise of the statutory scheme is that the rent may never exceed the rent ceiling.

The parties to the present dispute agree both that the rent charged must be within the rent ceiling and that the landlord becomes entitled at some point to one increase in the rent ceiling based on the capital improvements and a second based on the rise in the CPI. They part company with respect to the time when this may be accomplished. It is undisputed that this issue is governed by the provisions of § 45-2518(g), but the parties are in sharp disagreement as to what that section means.

The contentions of the contestants are summarized in some detail in the opinion the Rental Housing Commission. Briefly, the landlord argues that § 45-2518(g) is not ambiguous. Noting that the statute prohibits adjustments in rent within 180 days of the last adjustment, but is silent with respect to adjustments in the rent ceiling, the landlord contends that this language, literally construed, addresses only changes in the rent actually charged. The landlord, alluding to a number of provisions in the statute in which references to adjustments in rent obviously deal, in context, with the rent actually charged rather than with the rent ceiling, see §§ 45-2518(g), 45-2518(a)(2), 45-2518(f), submits that the use of the term "adjustment" does not automatically implicate the concept of rent ceiling. Pointing, by contrast, to §§ 45-2518(b)(1) and (2), which expressly refer to adjustments in the rent ceiling, the landlord argues that when the legislature meant the rent ceiling, it knew how to say so. The landlord also cites authority in this court holding that some provisions of § 45-2518 treat the term "rent" as referring to the rent actually charged, Afshar, supra, 504 A.2d at 1108-1109; Weaver Bros., Inc., v. District of Columbia Rental Housing Commission, 473 A.2d 384 (D.C. 1984) (construing predecessor statute), and invites our attention to two prior holdings of the Commission that § 45-2518(g)—the very provision here at issue—applies to actual rent rather than to the rent ceiling. Thompson v. Yavalar, TP 11,188 C.R.H. (April 11, 1986); Lovithy v. Smithy Braedon Property Co., TP 11,661 C.R.H. (Sept. 26, 1986). Finally, the landlord contends that the construction for which the tenants contend would defeat the purpose of the statute by encouraging landlords to keep the actual rent at the rent ceiling and would cause an administrative nightmare in terms of record keeping.

The tenants argue, on the other hand, that the term adjustment in rent, as used in the Act, refers to the rent ceiling as authorized by § 45-2517 et seq. They note that § 45-2518 is entitled "increases above base rent," and contend that the reference to adjustments in rent in § 45-2518(g) must be read in terms of the title of the section. Claiming that the language of the statute is unambiguous, the tenants contend that the sequence of the various provisions in the statute shows that the phrase "adjustments in rent" uniformly refers to rent ceilings and that the legislature was therefore talking about rent ceilings in § 45-2518(g). They say that, properly construed, that section means that

No [change in the rent ceiling] under this chapter may be [collected] until a full 180 days have elapsed since any prior [change in the rent ceiling.]⁸

The tenants also contend that the interpretation of the statute proposed by the landlord and adopted by the Commission resolves...