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May 24, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Iraline Barnes, Motions Judge

Belson, Farrell, and Wagner, Associate Judges.

The opinion of the court was delivered by: Farrell

After defendant-appellee and her husband, occupants of a publicly-subsidized housing unit, ceased paying rent, the District of Columbia government (the District) served them with a statutory notice to vacate. Defendant then informed the District that her husband had left the premises and, as required by regulations, signed a new lease for the unit listing her as the sole head of household and reducing the rent, but otherwise leaving the terms of the previous lease unchanged. Defendant contends that by executing the new lease, the District relinquished its right to seek her eviction for nonpayment of rent under the previous lease. The trial court agreed. We reverse and hold that, in the circumstances of this case, execution of the new lease by the parties did not constitute a "surrender" of the existing tenancy so as to bar the District's action to evict for failure to pay rent.


The District of Columbia provides a limited amount of subsidized public housing to residents unable to afford housing at market prices. Tenants who qualify for such housing pay rent based on their income, not on the value of the housing. To ensure that the rent charged is proper, there is an annual evaluation of the financial circumstances of tenants. Moreover, the law imposes on tenants the "responsibility to report to HMA [the Housing Management Administration] any change in family circumstances, including changes in family size or income, as soon as the change occurs." 14 DCMR § 6113.1 (1989). And, in certain circumstances, the District is required to execute a new lease with a tenant. 14 DCMR § 6205.8 provides in part that " new dwelling lease shall be issued within thirty (30) days whenever. . . the status of the head of household is altered by . . . separation."

Effective February 1, 1985, defendant and her husband signed a lease with the District for a three-bedroom dwelling at 46 57th Street, S.E., and moved into the property with their three children. The lease provided for a month-to-month tenancy and listed the husband as head of the household, although in ensuing applications for continued occupancy (in 1987 and 1988) defendant listed herself as the head of household. The 1985 lease mirrored the regulation quoted above by requiring that defendant notify the District of all changes in income, employment, or composition of the family.

As required, the family's financial circumstances were reviewed periodically to ensure that the monthly rental charges were at a level consonant with family income. From 1985 through March, 1989, the monthly rental charges ranged from $249.00 to $84.00, depending partly on defendant's income from work and unemployment compensation and partly on the level of public assistance the family received. The husband apparently was never employed during this time.

According to the District, on or about August 1, 1987, the defendant and her husband stopped paying rent. Approximately sixteen months later, on December 21, 1988, the District served them with a notice to vacate the unit, explaining that they were required to move out by February 1, 1989, for nonpayment of rent.

On February 28, 1989, the District's housing agency received from defendant a note and application for continued occupancy in which she stated that her husband had moved out in January. *fn1 As a result of this notice, on April 1, 1989, the Housing Management Administration issued a new lease for the same dwelling pursuant to 14 DCMR § 6205.8. The lease was signed by defendant alone as tenant, and the terms were virtually identical to those of the earlier lease except that the monthly rent was reduced from $135.00 to $79.00 per month.

In July, 1989, the Office of the Corporation Counsel filed an action on behalf of the District against defendant and her husband, seeking possession of their dwelling for non-payment of rent for nearly a two-year period. After answering the complaint, defendant filed a motion for partial summary judgment in which she admitted that the District, in a civil action, could recover for unpaid rent pursuant to the 1985 lease, but argued that an action for possession could not be based on a failure to pay rent under the 1985 lease. The Judge agreed and granted the motion, citing Schwartz v. Brown, 64 A.2d 298 (D.C. 1949), and Belanger v. Rice, 2 Utah 2d 250, 272 P.2d 173 (1954), for the proposition that the 1989 lease had extinguished the tenancy established between defendant and the District in 1985. Following this ruling, defendant filed a motion to dismiss the suit for possession, which the trial court granted upon the District's apparent concession that defendant was not in arrears with respect to post-April 1, 1989, payments. The District brought this appeal.


Relying on the general principle of landlord and tenant law "that the making of a new lease operates as a surrender of an older one," Schwartz v. Brown, 64 A.2d at 299, the trial court ruled that the District could not sue defendant for possession based upon her nonpayment of rent under the 1985 lease. We think the court misconceived the application of that principle to the execution of the new lease in this case under the District's public housing scheme.

surrender [of a leasehold estate] is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words by which the lessee manifests his intention of yielding up his interest in the premises, or by operation of law, when the parties without express surrender do some act which implies that they have both agreed to consider the surrender as made.

Beall v. White, 94 U.S. 382, 389, 24 L. Ed. 173 (1876). See H. TIFFANY, THE LAW OF REAL PROPERTY §§ 960-65 (3d ed. 1975). Surrender by operation of law occurs, for example, when the tenant gives up the property and the landlord accepts the "surrender of the lease." Belanger v. Rice, 2 Utah 2d at 272 P.2d at 175. See Smith's Transfer & Storage Co. v. Hawkins, 50 A.2d 267, 268 (D.C. 1946). The execution of a new lease or the modification of an existing one may constitute a "surrender" and termination of an existing lease if these actions manifest the parties' intent to terminate the former tenancy. Schwartz v. ...

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