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February 27, 1989


The opinion of the court was delivered by: REVERCOMB


 Plaintiff sues under the Federal Tort Claims Act for destruction of her personal property by a fire in her apartment, owned by the United States Veterans Administration ("VA") after the previous owner defaulted on its mortgage. The Court heard argument on December 22, 1988, on plaintiff's motion for partial summary judgment and defendant's motion for plenary summary judgment. In this opinion and order, the Court grants in part and denies in part plaintiff's motion and denies defendant's motion.


 The essential facts in this case are not in dispute. Plaintiff, Ms. Valentine, lived in an apartment at 3221 Massachusetts Avenuve, S.E., in Washington, D.C., from 1977 through March 31, 1984. After the owner defaulted on the mortgage on the building in 1982, the lender conveyed the title to the VA, which had insured the mortgage. Three of the four tenants of the building vacated their units at the VA's request, but Ms. Valentine refused, even after receiving a 30-day notice to quit from the VA on October 22, 1982. When Ms. Valentine refused to leave the apartment, the VA filed an eviction complaint, which was dismissed by the Superior Court of the District of Columbia on Ms. Valentine's motion on January 28, 1983. At about the same time, the District's housing department notified the VA that it was in violation of the District of Columbia housing code for failure to heat the apartment building and ordered the VA to comply with the code. The VA did not, however, provide heat to the building.

 Defendant's Duties Under District of Columbia Law

 When an owner by foreclosure of residential property in the District of Columbia fails in an attempt to evict a tenant, does the owner then have an obligation to heat the tenant's apartment, even though there is no contract between the two? The Court concludes that it does.

 The District of Columbia has enacted extraordinary statutes to protect tenants and provide them with rights beyond the terms of their contracts with their landlords. These statutes are designed to change what the District of Columbia government has found to be a severe shortage of affordable housing in the District. See D.C. Code Ann. § 45-2501 (1986). One of these rights is the right not to be evicted from an apartment, even if the tenant's lease has expired, except under a few conditions. *fn1" D.C. Code Ann. § 45-1561(a) (1981) (now replaced by the substantially similar § 45-2551 (1986)). Indeed, the VA failed in an attempt to evict Ms. Valentine from her apartment after the VA became the owner of the apartment building. Administrator of Veterans Affairs v. Valentine, 490 A.2d 1165, 1166 (1985). In that case, the District of Columbia Court of Appeals held that because of § 45-1561, Ms. Valentine could not be evicted from her apartment, despite the fact that the VA took ownership to the property after the original owner defaulted. *fn2"

 A question not clearly answered by the D.C. Court of Appeals, once Ms. Valentine was not evicted, was whether the rationale behind the decision meant that the VA was obligated to act as a landlord -- including providing her with adequate heat, as required by the D.C. Housing Code. See 5G DCRR §§ 1201, 2407 (1982) (now codified at D.C. Mun. Regs. tit. 14, §§ 500, 501 (1986)). The D.C. Court of Appeals addressed this question only by noting in a footnote that "§ 45-1561 does not require the VA to serve as landlord against its will; it simply prohibits evicting persons . . . ." Valentine, 490 A.2d at 1170 n.9. Although defendant in the instant case cites this as conclusive law, it is noteworthy that the Court did not state that "the VA does not have to serve as a landlord," but only that the anti-eviction statute did not require it. The question was further complicated by Judge Terry's dissent, which said that the majority opinion "will turn any foreclosing lender who acquires title to property . . . into an unwitting -- and often unwilling -- landlord, subject to the stringencies of the . . . Housing Act." Id. at 1172 (Terry, J., dissenting).

 The instant Court is then faced with a dilemma. The first choice would be to read the Valentine case narrowly, holding that just because a tenant cannot be evicted does not mean that the owner is obliged to provide heat. While this solution would provide the VA with the traditional protection that no one is forced to become a landlord against his will, *fn3" it could also effectively eviscerate the anti-eviction law. Under a scheme in which an owner by foreclosure owes no duty to the resident -- as is argued by defendant -- an owner such as the VA could cut off the heat, electricity, gas, and water to a unit and still comply with law. *fn4" The owner could even take steps in an intentional effort to "constructively" evict the resident from her unit. Indeed, in the instant case an official of the VA admitted that one of the reasons for the VA's failure to provide heat was the hope that the lack of heat would encourage Ms. Valentine to abandon her apartment. See Deposition of Herbert Fenster at 55. The Court believes that such a solution cannot co-exist with the strong anti-eviction policy of D.C. Code Ann. § 45-1561 (1981) (now replaced by the similar D.C. Code Ann. § 45-2551 (1986)).

 The second alternative is to read § 45-1561 and the D.C. Court of Appeals' decision in Valentine as requiring that an owner who cannot or does not evict a resident provide heat to that resident. This policy also has its problems. In addition to going beyond the apparent contemplation of the D.C. Court of Appeals in Valentine,5 it could create a tremendous disincentive to those, such as the VA, who would lend funds or guarantee mortgages for the purchase of rental properties. *fn6" However, it often is true that laws designed to protect consumers in their business transactions -- such as usury laws -- may end up decreasing the number of times that businesses are willing to enter into these transactions at all. However, because the policy decision to adopt § 45-1561 was made by the D.C. government, the Courts must give effect to the measure. *fn7" This Court concludes that the anti-eviction law, as interpreted by the D.C. Court of Appeals, must implicitly be held to have required an owner by foreclosure to provide heat to residents who it does not evict, pursuant to 5G DCRR § 1201, 2407 (1982) (now codified at D.C. Mun. Regs. tit. 14, §§ 500, 501 (1986)). In sum, the Court concludes that the D.C. Court of Appeals, were it to address to issue left unresolved in Valentine, would hold that the VA was obligated to provide heat to Ms. Valentine's apartment.

 Coverage of the United States by the District's Housing Laws

 The other ground raised by defendant for not finding a duty on the part of the VA to heat Ms. Valentine's apartment is that the federal government is not covered by the D.C. Housing Code. The Code imposes obligations on an "owner," who is defined as a "person" who has "legal title" to a building. 5G DCRR § 1102 (1982) (now codified at D.C. Mun. Regs. tit. 14, § 199 (1986)). In turn, a person is defined as "any individual, firm, partnership, corporation, company, or association; and includes any personal representative, trustee, receiver, assignee or other similar representative." Id. Because this list does not include "government," defendant argues that the United States and ...

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