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November 18, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Rufus G. King III, Trial Judge), (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: This appeal arises from the Superior Court's grant of summary judgment in favor of appellees, Raj and Theodora Mallick, in their action for possession of real property against appellant, Peter Espenschied. Appellant contends that the trial court erred (1) by denying appellant's motion to quash service of process, and (2) by failing to consider appellee's claim of retaliatory eviction. *fn1 We affirm.

Appellant was a commercial tenant operating a bookstore in a mixed-use building owned and managed by appellees, located at 2603 Connecticut Avenue, N.W., Washington, D.C. Appellant's lease expired on December 31, 1989, and specifically permitted "the Lessor re-enter and repossess the said land and premises without notice or demand thereof." *fn2 At the expiration of his lease term, appellant was notified that his monthly rental payments would increase from $656.25 to $1200. Appellant's refusal to pay the increase prompted this litigation and his subsequent eviction. *fn3


The facts, as credited by the trial court during a hearing on appellant's motion to quash service of process, indicate that on April 27, 1990, Mr. Joseph Green, a process server with more than twelve years of experience, went to the premises to serve appellant with the summons and complaint for possession. After being informed that appellant was in Florida and that Mr. Hitchcock, appellant's employee, was authorized to receive service, he left the summons and complaint with Mr. Hitchcock.

D.C. Code § 16-1502 (1990) provides: "If the defendant has left the District of Columbia, or cannot be found, the summons may be served by delivering a copy thereof to the tenant, or by leaving a copy with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered." The trial court did not err in finding that appellees' service of process complied with the statute and, accordingly, we find no error. *fn4 See Alexander v. Polinger Co., 496 A.2d 267, 269-70 (D.C. 1985); Parker v. Frank Emmet Real Estate, 451 A.2d 62 (D.C. 1982).


Appellant's second contention is that, by granting summary judgment to appellees, the trial court improvidently failed to consider the applicability of a retaliatory eviction defense to commercial leases. Appellant asserts that, by dramatically raising his rent, appellees were retaliating because of

"(1) [appellant's] assistance to the Perry family, residential tenants in the building until about 1985, in their successful defense against the in this Court, (2) [appellant's] assistance to the Shah family, residential tenants in the building until 1988, in pursuing housing violation complaints, (3) [appellant's] own follow-up of the Shahs' complaints, which resulted in orders from the housing inspector to repair the main entrance stairway. . ., and (4) [appellant's] own numerous written and oral complaints about damage and deficiencies in the building structure. . . ." *fn5

Conceding that "the D.C. Housing Code and D.C. Code Section 45-2552 only create an explicit retaliatory eviction defense in residential tenancy cases," appellant propounds "an implied, common law retaliatory eviction defense" under Edwards v. Habib, 130 U.S. App. D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 21 L. Ed. 2d 560, 89 S. Ct. 618 (1969), which, he argues, "should be extended to commercial tenancies in this jurisdiction."

In Edwards, the landlord commenced eviction proceedings against a month-to-month tenant after her complaint to housing authorities led to the discovery of more than forty sanitary code violations. The United States Court of Appeals for the District of Columbia overturned the ruling in the landlord's favor and held that a tenant could offer evidence of the landlord's retaliation or other improper motive as a defense to the possessory action. Reasoning that "to permit retaliatory evictions, then, would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington[,]" id. 130 U.S. App. at 139-140, 397 F.2d at 700-701, the court held that although the landlord could evict for any legal reason or for no reason at all, Congress, in providing jurisdiction over possessory actions, did not intend to permit evictions in retaliation for a tenant's report of housing code violations to authorities. In short, "the underlying rationale of the decision is that the Housing Regulations in this jurisdiction 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; . . . to permit evictions would undercut the effectiveness of the housing code." Golphin v. Park Monroe Assocs., 353 A.2d 314, 317 (D.C. 1976) (footnote and citation omitted). See R. SCHOSHINSKI, AMERICAN LAW OF LANDLORD & TENANT §§ 12:2, at 721 (1980).

Since Edwards, many states have protected tenant rights either by promulgating statutes which provides protection for tenancy-related activities, *fn6 by directly applying the Edwards rationale, *fn7 or by implying such rights from the tenant's right of habitability. *fn8 In light of appellant's concession that the statutory scheme proscribing retaliatory conduct is limited to the residential sector, *fn9 we now turn to consider the latter two theories and any consequences they may have on the instant action.


After an exhaustive review of housing regulations, *fn10 Congressional reports, *fn11 legal commentaries, *fn12 and judicial precedent, *fn13 the court in Edwards concluded that retaliatory eviction was anathema to the goals sought to be advanced by local sanitary and safety codes, particularly in light of the "appalling condition and shortage of housing in Washington, the expense of moving, the inequality of bargaining power between tenant and landlord, and the social and economic importance of assuring at least minimum standards in housing conditions." Id., 130 U.S. App. D.C. at 140, 397 F.2d at 701. Emphasizing the essential role performed by tenants who are uniquely positioned to vouchsafe that landlords respect these "minimum standards," the court concluded that the critical policy considerations underlying safe and habitable housing outweigh any competing policy interest in preserving the summary nature of unlawful detainer actions.

Accordingly, the test subsequently adopted by courts confronted with an Edwards-like situation is "whether the public policies furthered by protecting defendants from eviction outweigh the interests in preserving the summary nature of unlawful detainer proceedings." S.P. Growers Ass'n v. Rodriguez, 17 Cal. 3d 719, 552 P.2d 721, 723, 131 Cal. Rptr. 761 (Cal. 1976). The pattern which has emerged from the burgeoning case law following Edwards is that where the public policy implicated involves housing code violations, residential tenants are generally accorded the right to mount a retaliatory defense. See note 5, (supra) . Where the protected activity is more tenuously related to the basic decent-housing concern, however, the courts appear to scrutinize more carefully both the underlying value of the particular policy as well as the importance of the tenant's role in vindicating that policy. *fn14 See 2 POWELL ON REAL PROPERTY P 234 [1](a).

A clear application of the latter strategy can be seen in S.P. Growers, supra, where the tenants asserted that the landlord was seeking to evict them in retaliation for the tenants filing suit under the federal Farm Labor Contractor Registration Act. After carefully analyzing the Farm Labor Act's history and noting that a section had been amended to the act which provided for private civil remedies, the court concluded that a retaliatory defense was appropriate because "the federal act relies in large part on the initiation of private litigation for its effectiveness." Again, in Barela v. Superior Court, 30 Cal. 3d 244, 636 P.2d 582, 178 Cal. Rptr. 618 (Cal. 1981), the Supreme Court of California held that the trial court should have considered a retaliatory defense which averred that the landlord was evicting the tenant in retaliation for the tenant's complaint to the police that the landlord had sexually assaulted her nine-year-old daughter. In addition to the important public policy that "citizens have a right and a duty to report violations of the law to the authorities," the court cited the California legislature's goal to encourage victims to report crimes," and reasoned accordingly that "the effective enforcement of this state's s depends upon the willingness of victims and witnesses to report crime and to participate in the criminal Justice system." 636 P.2d at 586.

The California courts then applied this analytical framework to the commercial sphere in Custom Parking, Inc. v. Superior Court of California, 138 Cal. App. 3d 90, 187 Cal. Rptr. 674 (1982), where a commercial tenant was threatened with eviction after his employees and officers refused to perjure themselves in the landlord's favor. Acknowledging the historical schism between commercial and residential tenants, the court nonetheless enunciated the strong public policy favoring truthful testimony which rendered insignificant any distinctions. The court concluded that "to preclude the defense would be to create a class of litigants, commercial landlords, with a legally sanctioned means of punishing tenants who testify honestly but adversely to the landlord and third parties." Id., 138 Cal. App. 3d at 101, 187 Cal. Rptr. at 682.

In a similar vein, the Supreme Court of Hawaii extended the right to interpose a retaliatory defense to a commercial tenant in Windward Partners v. Delos Santos, 59 Haw. 104, 577 P.2d 326 (Haw. 1978), where a landlord terminated the tenancy of the tenant who publicly testified, pursuant to statute, against the landlord's pecuniary interests at an agency hearing. After carefully chronicling the strong public policy favoring testimony before agencies and commissions and noting that in Winward, "as in Edwards v. Habib, supra, the effectiveness of the statute HRS § 205-4 depends primarily on private initiative[,]" the court found that a retaliatory defense was mountable, and because the statutory right to testify was "equally applicable to non-residential tenants," the court perceived "no justifiable legal premise[] to distinguish between the two classes of tenants." Id.

Here, appellant argues that "if a tenant, including a commercial tenant, cannot seek to force a landlord to comply with the construction codes [D.C. Code § 5-1301 et seq. and Titles 12 and 21 of the DCMR (1991)], for fear of retaliatory consequences, then the public policy expressed would be thwarted." In particular, appellant focuses on D.C. Code § 5-1304 which provides:

The Construction Codes shall be construed to secure their expressed intent, which is to ensure public safety, health, and welfare by building construction, through structured strength, energy and water conservation, accessibility to the physically handicapped, adequate egress facilities, sanitary equipment, light ventilation, and fire safety; and, in general, to secure safety to life and property from all hazards incident to the design, erection, repair, removal, demolition, or use and occupancy of buildings, structures, or premises.

While appellant's argument has superficial appeal, it overlooks the fundamental differences between the two codes and, most importantly, the enforcement role played by commercial tenants as opposed to residential tenants. Unlike the Housing Code which "unquestionably was designed to protect tenants' interests (as well as the public health and safety)," Lee v. District of Columbia Bd. of Appeals, 423 A.2d 210, 218 (D.C. 1980), and to which the legislature has enacted a specific system of private remedies indicating that the code is intended to be enforced by those whom it seeks to protect, see 14 DCMR § 101 et seq. & Housing Regulations, 5G DCRR § 2901 (August 11, 1955), "nothing in the applicable statute or regulations creates a special class of persons protected by the building code other than the general public," see District of Columbia v. Forsman, 580 A.2d 1314, 1317 (D.C. 1990), nor is enforcement designed to be initiated by anyone other than the Director of the Department of Housing and Human Development. See 12 DCMR § 111 et seq.

Moreover, appellant has failed to adduce any evidence indicating there exists the commercial analogue of the comprehensive findings which inspired Edwards, i.e., "appalling condition and shortage" and "the inequality of bargaining power between tenant and landlord . . ." Edwards, 130 U.S. App. D.C. at 140, 397 F.2d at 701. *fn15 Accordingly, we decline appellant's invitation to extend Edwards to the instant action.


Similarly, we decline to extend to commercial tenants the right to interpose a retaliatory eviction defense based on a breach of the "warranty of habitability." Despite having tempered the harsh effects of the theory of independent covenants and implied a warrant of habitability into all residential leases, see Javins, supra note 8; Winchester Management v. Staten, 361 A.2d 187 (D.C. 1976), *fn16 we have never accorded the same consideration to commercial leases.

For example, in Interstate Restaurants, Inc. v. Halsa, 309 A.2d 108 (D.C. 1973), the landlord sought possession following the tenant's default under a lease provision requiring that the leased restaurant remain open on weekends. We upheld the trial court's refusal to admit evidence proffered by the tenant showing that the landlord had breached its obligations to maintain and repair the premises. Noting that Javins defenses arose out of those conditions unique to residential urban housing, we held that "unless a contrary intention is expressed, the covenants in a lease are independent," and "where covenants are independent, non-performance by one party does not excuse the other party from the need to satisfy his obligations." Id., at 110. See also Hinkel & Co. v. Manhattan Co., 165 U.S. App. D.C. 140, 145, 506 F.2d 201, 206 (1974) ("the District of Columbia Court of Appeals refused to apply the rationale of Javins to a commercial lease"); Swesnik & Blum v. De Pandi, 108 D.W.L.R. 2089, 2095 (September 4, 1980) (where "the premises in question are commercial rather than residential, [] defenses premised upon a breach of warranty of habitability are not available"). We agree with the point made by the court in Green v. Superior Court, 10 Cal. 3d 616, 517 P.2d 1168, 111 Cal. Rptr. 704 (Cal. 1974) that " lessor's breach of a covenant to repair contained in a commercial lease is a substantially different matter. The parties are more likely to have equal bargaining power, and, more importantly, a commercial tenant will presumably have sufficient interest in the demised premises to make needed repairs and the means to make the needed repairs himself or herself, if necessary and then sue the lessor for damages." Contra, Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (N.J. 1969). *fn17 Accordingly, without a warranty of habitability upon which to anchor a claim of retaliatory eviction, the defense is not available to commercial tenants.

It is undoubtedly true that commercial leases often include small commercial operators who do not possess equal bargaining power with their landlords. They sometimes may be no more knowledgeable about the quality of a structure than a residential tenant, and similarly may not be prepared to undertake the litigation expenses that an action for breach of contract may incur. But the legislature, which has acted comprehensively in the area of residential tenants' rights, see D.C. Code § 45-2552, has not provided comparable remedies to commercial tenants. Nor has appellant pointed to anything that would otherwise indicate a public policy that suggests that the traditional view of the market place in which commercial tenancies are entered should be modified because, for example, of evidence of unconscionable mistreatment of commercial tenants by overreaching landlords. The court is ill equipped to weigh the competing considerations. Therefore, we conclude, without foreclosing the possibility that at some point the court may be presented with a case in which it would conclude that public policy, as amply set forth in the record on appeal, calls for extension of the retaliatory eviction defense to commercial tenants in mixed-use buildings, appellant has failed to present a record that would indicate that this is such a case.


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