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05/12/92 DAVID CORMIER v. JAMES MCRAE

May 12, 1992

DAVID CORMIER, APPELLANT
v.
JAMES MCRAE, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Trial Judge).

Before Ferren, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : In this landlord's action for possession of an apartment, the trial court granted summary judgment for the tenant-appellee. The tenant successfully argued that, although he had received a 30-day "notice to cure or vacate" pursuant to D.C. Code § 45-2551(b) (1990) (Rental Housing Act of 1985), the landlord-appellant had failed to comply with the further requirement of D.C. Code § 45-1402 (1990) that a notice "to quit" a month-to-month tenancy must be given, not merely 30 days in advance of termination, but at least 30 days before the end of a rental period and thus at least 30 days before the end of a rental period and thus at least 30 days before the date on which a new month-to-month tenancy would otherwise begin. To the contrary, the landlord argued that § 45-2551(b) supersedes -- implicitly repeals -- § 45-1402 as applied here, and thus that, in order to evict the tenant, the landlord was not required to provide a notice to quit expiring on the very day the lease had commenced. Although we analyze the issue somewhat differently from the landlord's approach, we agree that § 45-1402 is inapplicable. Accordingly, we reverse.

I.

On February 24, 1976, the tenant signed a one-year lease for an apartment on the third floor of 3228 Hiatt Place, N.W., for the period March 24, 1976 through March 23, 1977. When the lease expired, the tenant stayed on month-to-month. On February 27, 1990, the landlord served the tenant with a 30-day notice to cure or vacate that expired on March 31, 1990. The notice was based on the following alleged violations of the lease:

not notifying landlord of repair work needed; repeated refusal to allow access to apartment to begin repairs; allowing extra people to occupy apartment; refusal to pay $480 for theft of electricity; repeated threats to ; endangering the health and safety of all tenants by opening fire doors.

When the tenant failed to cure the violations or to vacate the apartment, the landlord filed a suit for possession in the Landlord and Tenant Branch of Superior Court on April 4, 1990.

The tenant moved to dismiss or, in the alternative, for summary judgment, basing his argument on two statutes. D.C. Code § 45-2551(b) directs 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.

The earlier statute, D.C. Code § 45-1402 (enacted in 1901), similarly provides for terminating a month-to-month tenancy with a 30-day written notice to quit, but § 45-1402 directs that the notice must expire "on the day of the month from which such tenancy commenced to run."

The trial court concluded that the 30-day notice requirement of § 45-2551(b) applied but that § 45-1402 still governed the timing of the notice. The court accordingly accepted the tenant's argument that the landlord should have given notice 30 days or more before the day of the month on which the lease began to run. The trial court reasoned that, because the landlord notified the tenant to cure or vacate by March 31, 1990, the landlord -- to achieve that goal -- should have given notice no later than February 22, 1990, 30 days before March 24, the day the monthly tenancy began. *fn1 The tenant, however, did not receive notice until February 27, 1990. The trial court ruled that because the notice did not satisfy § 45-1402, the landlord was not entitled to sue for possession and granted the tenant's motion for summary judgment.

II.

In reviewing a summary judgment order, our standard is the same as the trial court's. See Taylor v. Eureka Inv. Corp. 482 A.2d 354 at 357 (D.C. 1984). We examine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56(c). In so doing, we must examine all facts in the light most favorable to the non-moving party. See Thompson v. Shoe World, Inc., 569 A.2d 187 at 189 (D.C. 1990).

The central question is whether the ยง 45-1402 timing requirement for a "notice to quit" applies when a landlord wishes to evict a month-to-month tenant for breach of a covenant -- now called an "obligation of ...


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