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August 4, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. Von Kann, Trial Judge)

Before Rogers, Chief Judge, Ferren, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: The District of Columbia appeals a decision of the Landlord and Tenant Division granting a motion to dismiss the District's complaint for possession of a public housing apartment for nonpayment of rent. The trial court dismissed on the ground that the District's notice "to cure or quit" was "legally defective because it did not provide two consecutive notices to the : (1) a notice of rights to administrative grievance process pursuant to 14 D.C.M.R. 6404 and 24 C.F.R. § 966.4 (1) (1990); and (2) a notice to cure or quit pursuant to D.C. Code § 45-2551 (1990 Repl.)." The District argues that the applicable federal regulations and local statute do not require two separate, consecutive notices unless the tenant has exercised her right to administrative review of the proposed termination of the lease -- which she did not do here. We agree with the District and thus reverse and remand for further proceedings.


On June 19, 1990, the District personally served on the tenant a notice to cure or quit the premises. *fn1 The notice was based on two grounds: the tenant's failure to pay rent for over 16 months as of the time the notice was served *fn2 and her failure to submit recertification ("re-exam") forms *fn3 in violation of Paragraph 6 (d) of the lease. Relying on 24 C.F.R. §§ 966.4 (1) *fn4 and 966.58, *fn5 the tenant moved to dismiss on the ground that the notice to cure or quit was legally defective. She argued that federal requirements demanded the District serve two separate, consecutive notices on a public housing tenant.

The trial court in its July 10, 1991 Order agreed that two separate, consecutive notices were required, "one in compliance with federal regulations and a later, separate notice in compliance with state eviction statutes." (Emphasis in original). The trial court rejected the contrary Conclusion in District of Columbia v. Jones, L&T No. 90-28022-90, Memorandum Order at 7 (D.C. Super. Ct. Oct. 18, 1990), where Judge Levie granted summary judgment for the District, concluding that the District could "comply with both federal and local requirements with one notice" to the tenant. *fn6 The trial court noted conflicting authority in the federal courts. Compare Staten v. Housing Auth. of Pittsburgh, 469 F. Supp. 1013, 1016 (W.D. Pa. 1979) (two separate, consecutive notices required) and Noble v. Bethlehem Hous. Auth., 617 F. Supp. 248, 252 (E.D.Pa. 1985) (following Staten) *fn7 with Ferguson v. Housing Auth. of Middlesboro, 499 F. Supp. 334, 336-37 (E.D. Ky. 1980) (two-step notice not required under facts presented). *fn8 The court, however, gave significant weight to what it characterized as an "opinion letter" written February 9, 1979, by attorney Joseph F. Gelletich, Assistant General Counsel for Low Rent Housing at the United States Department of Housing and Urban Development (HUD). Gelletich wrote the letter in response to questions from the attorney representing the tenants in Staten, supra. When asked whether "the administrative notice period and the required state law notice to vacate period to run concurrently or consecutively," Gelletich replied:

These periods must run consecutively. The notice rehired by 24 CFR section 866.4(1)(2) *fn9 is intended to provide notice of the PHA [Public Housing Authority's] intention to take state or local legal action to evict the tenant and to provide a period during which the tenant may lodge a grievance with the PHA which, if resolved favorably to the tenant, would prevent the termination of the lease. Accordingly, it is our opinion that the period provided in Departmental regulations, which safeguards valuable federal "rights," must run prior to the initiation of any state proceedings which will lead to eviction of the tenant under state law.

(Emphasis in original.) In addition to relying on Staten, the trial court deferred to this letter as HUD's construction of its own regulations. See, e.g., Medical Assoc. of Capitol Hill v. District of Columbia Dept. of Employment Serv., 565 A.2d 86, 88 (D.C. 1989) ("Court will defer to the agency's construction of a controlling statute or regulation unless it is unreasonable or contrary to law.").


The question is whether the notice to appellee Willis, which combined a notice to cure or quit by a specified date with a notice of the tenant's right to administrative review, see supra note 1, was legally deficient for failure to separate into two consecutive notifications the notice of the right to administrative review and the notice to cure or quit. Because the trial court's ruling was an interpretation of law, we review the question de novo. See, e.g., Mueller v. Healthplus, Inc., 589 A.2d 439, 440-41 n. 3 (D.C. 1991).


We note first that the language of 24 C.F.R. § 966.4(1) *fn10 in no way indicates that the federal notice must be issued separately from, and prior to, any state or local notice to vacate. The other relevant regulation, 24 C.F.R. § 966.58, *fn11 does indicate that " "if the tenant has requested a hearing," the public housing authority may not issue the notice to vacate -- which is a prerequisite to any eviction action in state or local court -- until after the decision of the hearing officer or reviewing body has been issued and sent to the tenant. See id. (emphasis added). The regulations are silent about the timing of the state or local notice to vacate when the tenant does not request a hearing.

In Staten, on which the trial court relied, a federal district court in Pennsylvania held that a combined notice did not comply with the federal regulation then codified at 24 C.F.R. § 866.4(1) (1978). *fn12 The Staten court reasoned:

The determination to evict may not become final until the tenant has had an effective opportunity to present his grievances at a hearing. This initial notice, therefore, must adhere to the requirements of 24 C.F.R. ยง 866.4(1) and must be couched in language conveying the proposed nature of the lease termination. During the 14 days the tenant has an opportunity to dispute the Housing Authority's action. If the tenant fails to present any grievance, either orally or in writing, to the Housing Authority ...

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