Golphin v. Park Monroe Associates

353 A.2d 314, 1976 D.C. App. LEXIS 475

• Court: District of Columbia Court of Appeals
• Decided: February 24, 1976
• Docket: 7797
• Status: Published

Opinions

GALLAGHER, Associate Judge:

This is an appeal from the Landlord and Tenant Branch of the Superior Court of the District of Columbia. The appellee, Park Monroe Associates, filed suit against one of its tenants, Jesse Golphin, Jr., appellant, for possession of the apartment he occupied. The trial court granted possession to the landlord.

Appellant leased an apartment from Park Monroe Associates for a fixed term of one year. Ten days before the expiration of the term the tenant was served with a notice to vacate and quit the premises, which the tenant failed to do. A complaint was filed in the trial court with the ground for possession being asserted as the “[ejxpiration of 30 days notice to quit.” During the trial, however, the court permitted the landlord to amend the complaint to assert, in effect, that possession was being sought due to the expiration of the term lease, though the notice was given shortly before the end of the term. We will view this case in the context of the permitted amendment.

At trial, the tenant offered to show that the landlord had demanded possession of the premises in retaliation against his organization of and membership in a tenant’s association, as well as in retaliation against previous complaints of housing code violations made to the landlord and governmental authorities. He proffered that he received a notice to quit the day after he became president of the tenant’s association. More particularly, the tenant offered to show that if he had not become active in the tenant’s association, in accordance with the established policy of the landlord he would have become a month-to-month tenant at the expiration of the one-year term; and that this established policy of the landlord was in consonance with the express terms of the lease.¹ Lastly, the tenant proffered that six suits for possession were instituted by the landlord to oust other members of the tenant’s association.

The trial court declined to admit the proffered testimony as being irrelevant because the statute 2 provides that the landlord is entitled to possession immediately upon the expiration of the fixed term. Further, said the court, if there is any inconsistency between the statute and the housing regulations³ the statute prevails.⁴ Finding that the term of the lease had expired, the trial court concluded that the landlord was entitled to possession. We hold it was error to refuse to admit the testimony proffered to show a retaliatory eviction purpose by the landlord.

The question for us is whether on the facts of this case the defense of “retaliatory eviction” should have been permitted even though the tenant secured occupancy under a one-year lease, the term of which had expired.⁵ For the purpose of this review we must accept the excluded proffered testimony as establishing that this suit for possession was brought for retaliatory reasons.

The controlling decision concerning “retaliatory eviction” in this jurisdiction is Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). The Edwards doctrine, we might say parenthetically, is accepted in other jurisdictions,⁶ as well.

In Edwards v. Habib, supra, a landlord brought a possessory action against his month-to-month tenant after serving the tenant with the statutorily required 30 days’ notice to quit.⁷ The tenant sought to invoke a defense of “retaliatory eviction.” Edzvards held that “proof of a retaliatory motive . . . constitute^] a defense to an action of eviction”, and remanded the case to afford the tenant the opportunity to prove that the 30 days’ notice to quit was in retaliation against her reporting housing code violations to the governmental authorities.

Briefly stated, the underlying rationale of that decision is that the Housing Regulations in this jurisdiction⁸ were promulgated at the explicit direction of Congress; their purpose is to secure safe and sanitary housing for the housing dwellers; effective implementation of these regulations depends in part on the private reporting of violations; though various statutes relating to landlord and tenant affairs provide that the landlord may evict for no reason at all upon proper notice, as a matter of statutory construction and for reasons of public policy this cannot be permitted if it is done in retaliation for the reporting of housing code violations to the authorities; and to permit such evictions would undercut the effectiveness of the housing code. Edwards v. Habib, supra, 130 U.S.App.D.C. at 138-141, 397 F.2d at 699-702. “A Congress which authorizes housing code promulgation and enforcement clearly cannot be taken to have excluded retaliatory eviction of the kind here alleged as a defense under a routine statutory eviction mechanism also provided by Congress.” Edwards z'. Habib, supra at 142, 397 F.2d at 703 (McGowan, J., concurring).

Edwards involved a month-to-month tenant whose term could be ended only after a 30 day notice. Here, we have a fixed term lease and by statute (D.C. Code 1973, § 45-901) it is provided that the landlord is entitled to possession upon the expiration of the term without a notice to quit. This statutory provision presents a refinement not before the court in Edwards v. Habib, supra, but on this record we think Edwards requires the same result. It is important to bear in mind that the tenant here proffered that if the landlord had not sought to evict him for retaliatory reasons he would have remained as a month-to-month tenant in accordance with established policy after the expiration of this fixed term lease. This proffer we must accept as factual in this discussion. So we must view it as established here that notwithstanding the fixed term in the lease, appellant would have remained as a tenant but for his activities in tenant affairs and in reporting alleged housing violations.⁹ This being so this case does not present just a construction of the bare statutory provisions in § 45-901 relating to fixed term tenants.

It seems to us that the crucial consideration is the essence of the law in this jurisdiction on retaliatory evictions.

At the bottom, Edwards v. Habib stands for the proposition that the states’ judicial processes may not be used to accomplish an eviction for retaliatory purposes. In Robinson v. Diamond Housing Corp., 150 U.S. App.D.C. 17, 463 F.2d 853 (1972), the same court stated:

If we resolve all reasonable doubts in favor of appellant ... it becomes plain that a jury might find Diamond Housing to be using the eviction machinery to punish Mrs. Robinson for exercising her legal rights. Edwards squarely holds that the state’s judicial processes may not be so used, and nothing which has transpired since Edwards was decided has caused us to change our view. Indeed, if anything, the creation by the District of Columbia City Council of new private remedies for code violations since Edwards reinforces our belief in the necessity for a broad retaliatory eviction defense. [(Emphasis added) (150 U.S. App.D.C. at 25-26, 463 F.2d at 861-62).]

The actuality is that, even though the tenant here had a one-year lease, prior to the expiration of the lease the landlord abandoned his established policy of allowing the tenant to continue on into a monthly tenancy and sought to utilize the “judicial processes” to evict this tenant for retaliatory reasons. As we have seen, from Edwards, it is the law in this jurisdiction that the judicial processes may not be so used.¹⁰ Compare Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 33 L. Ed.2d 570 (1972). This being so, on the facts of this case we conclude that § 45-901, which provides that a landlord is entitled to possession without notice upon the expiration of a fixed term, is not dispositive here.

It appears to us that the dissent, at its roots, fails to apply here what it terms the latter-day rule”¹¹ on retaliatory eviction (meaning Edwards v. Habib, supra). We, on the other hand, consider Edwards to be controlling. When it comes to “retaliatory evictions,” Edwards does not establish a rule for short term tenants but not for long termers. It applies to all tenants, not just some.

The testimony going to the defense of retaliatory eviction should have been permitted in evidence.¹²

Reversed and remanded for further proceedings.

1 . Paragraph 35 of the lease provides:

HOLDING OVER TENANCY

BY MONTH

35. Should Tenant continue in possession of the leased premises after the end of the term herein created with permission of Landlord, it is agreed that the tenancy thus created, shall be a monthly tenancy and may be terminated by either party upon giving to the other not less than thirty days’ written notice to expire on the 30th day of the month. . . . Tenant hereby waives his right to any Notice to Quit.

2 . D.C.Code 1973, § 45-901.

3 .. Housing Regulations of the District of Columbia, 1955, § 2910. Retaliatory Acts.

No action or proceeding to recover possession of a habitations [sic] may be brought against a tenant, nor shall an owner otherwise cause a tenant to quit a habitation involuntarily, nor demand an increase in rent from the tenant, nor decrease the services to which the tenant has been entitled, nor increase the obligations of a tenant, in retaliation against a tenant’s:

(a) Good faith complaint or report concerning housing deficiencies made to the owner or a governmental authority, directly by the tenant or through a tenant organization.

(b) good faith organization of or membership in a tenant organization.

(c) good faith assertion of rights under these Regulations, including rights under Sections 2901 or 2902.

4 .The court stated:

I would rest my decision on the provision of the statute [D.C.Code 1973, § 45-901]. If there be any inconsistency between statute 45-901 and the housing regulations [§ 2910], I think that the statute would prevail

and

[t]he statute [§ 45-901] states that the landlord is entitled to possession immediately upon the expiration of the term. I would hold that the term had expired and that the plaintiff is entitled to possession.

5 . D.C.Code 1973, § 45-901 provides:

When real estate is leased for a certain term no notice to quit shall be necessary, but the landlord shall be entitled to the possession, without such notice, immediately upon the expiration of the term.

6 . See, e. g., Schweiger v. Superior Court, 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97 (1970); Engler v. Capital Management Corp., 112 N.J.Super. 445, 271 A.2d 615 (Ch.1970); Mobil Oil Corp. v. Rubenfeld, 77 Misc.2d 962, 357 N.Y.S.2d 589 (App.T.1974); Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281 (Dist.Ct. Nassau 1972); Cornell v. Dimmick, 73 Misc.2d 384, 342 N.Y.S.2d 275 (City Ct. Binghamton 1973); Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S. 2d 278 (City Ct. Binghamton 1968); and Dickhut v. Norton, 45 Wis.2d 389, 173 N.W. 2d 297 (1970). See also McQueen v. Drucker, 438 F.2d 781 (1st Cir. 1971) (decided on constitutional grounds); Sosey v. Club Van Cortlandt, 299 F.Supp. 501 (S.D.N.Y.1969) (decided on constitutional grounds); Clore v. Fredman, 59 Ill.2d 20, 319 N.E.2d 18 (1974) (decided on an Illinois retaliatory eviction statute) ; E. & E. Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544 (1971) (decided on constitutional grounds) ; Church v. Allen Meadows Apartments, 69 Misc.2d 254, 329 N.Y.S.2d 148 (Sup.Ct. Onondaga 1972) (decided on constitutional grounds); (Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63 (Monroe County Ct. 1972) (decided on public policy grounds). Some states have embodied the doctrine of Edwards in statutes. See, e. g., Cal.Civ.Code § 1942.5 (West Supp.1975); Conn.Gen.Stat. Ann. § 19-375a (Supp.1975) ; Del.Code Ann. tit. 25, § 5516 (1974); Ill.Rev.Stat. ch. 80, § 71 (1973); Me.Rev.Stat.Ann. tit. 14, § 6001 (Supp.1974) ; Mass.Gen.Laws Ann. ch. 186, § IS (1970); Minn.Stat.Ann. § 566.03 (Supp.1975); N.H.Rev.Stat.Ann. § 540.13-a,-13-b (1974) ; N.J.Stat.Ann. § 2A :42-10.10,-10.12 (Supp.1975) ; R.I.Gen.Laws Ann. § 34-20-10 (1970).

7 . D.C.Code 1973, § 45-902. Notices to quit —Month to month.

A tenancy from month to month, or from quarter to quarter, may be terminated by a thirty days’ notice in writing from the landlord to the tenant to quit, or by such a notice from the tenant to the landlord of his intention to quit, said notice to exjnre, in either case, on the day of the month from which such tenancy commenced to run.

8 . The Housing Regulations of the District of Columbia (1955) were established and authorized by the Board of Commissioners under the predecessor of D.C.Code 1973, § 1-228. In 1967, the functions of the Board of Commissioners were transferred to the District of Columbia Council. See Edwards v. Habib, 130 U.S.App.D.C. 126, 139 n. 41, 397 F.2d 687, 700 n. 41 (196S).

D.C.Code 1973, § 1-228 states:

Building regulations.

The District of Columbia Council is authorized and directed to make and the Commissioner of the District of Columbia is authorized and directed to enforce such building regulations for the said District as the Council may deem advisable.

Such rules and regulations made as above provided shall have the same force and effect within the District of Columbia as if enacted by Congress.

9 . The retaliatory eviction provisions of the Housing Regulations (note 3 supra) apply to all actions or proceedings for possession. They are not confined to tenancies by the month, at will or at sufferance.

10 . If the result were the contrary, an incidental effect would be to enable a landlord to make academic the defense of retaliatory eviction by the use of term leases incorporating a fixed term, rather than montli-to-month, holdover provision.

11 . While the rationale of Edwards was not new in concept, there is no doubt but that, in applying the concept to the area of Landlord and Tenant law, the decision made new law, in this jurisdiction at least. As we indicated earlier, however, this new application is by no means now peculiar to this jurisdiction. See note 6 supra.

12 . See Edwards v. Habib, supra, 130 U.S. App.D.C. at 142, 397 F.2d at 703 (McGowan, J., concurring) where it is said that having authorized the housing code Congress cannot be taken co have excluded retaliatory eviction, as here alleged, under the routine statutory provisions relating to the right to regain possession.