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MULLIN v. N STREET FOLLIES LTD. PARTNER.

May 21, 1998

JOSEPH MULLIN, APPELLANT,
V.
N STREET FOLLIES LIMITED PARTNERSHIP, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, RUSSELL F. CANAN, J. [712 A2d Page 488]

Before Steadman, Schwelb and Ruiz, Associate Judges.

The opinion of the court was delivered by: Steadman, Associate Judge:

[712 A2d Page 489]

In this appeal we are asked to define the proper interplay between Drayton v. Poretsky Management, Inc., 462 A.2d 1115 (D.C. 1983), allocating primary jurisdiction to the administrative agency to determine the validity of rent increases, *fn1 and the broad discretionary power of a trial judge to fashion protective orders in suits before the Landlord and Tenant Branch of the Superior Court. Specifically, the primary issue before us is whether the rule of Drayton prohibits the trial court, in a suit for nonpayment of rent, from modifying a protective order to reflect a rent increase approved by the Rent Administrator in a separate proceeding, where administrative appeals of the approval have not been exhausted but where the Rental Housing Commission has refused to stay enforcement of the increase. Appellant defaulted on a protective order so modified, whereupon the trial court struck his responsive pleadings and entered judgment of possession for appellee. We affirm.

I.

The present dispute arose with a November 1992 complaint filed by appellee N Street Follies Limited Partnership ("N Street Follies" or "landlord"), seeking possession of the residential unit appellant Joseph Mullin ("tenant") occupied at 1755 N Street, N.W. The suit, commenced in the Landlord and Tenant Branch of the Superior Court, alleged nonpayment of two months' rent at the rate of $400 per month. The parties consented to a protective order requiring the tenant to pay $300 per month, the amount of undisputed rent, into the court registry. Soon thereafter, the court imposed a stay pursuant to Drayton, deferring to the Rental Housing Commission ("Commission" or "RHC") to resolve the parties' dispute over the proper rent amount, but kept the protective order in force.

On August 24, 1993, the landlord filed a hardship petition with the Rental Accommodations and Conversion Division ("RACD") of the District of Columbia Department of Consumer and Regulatory Affairs. See D.C.Code §§ 45-2516(c), -2522 (1996). The Rent Administrator granted the petition, approving a monthly rent increase to $1,168. The tenant took an appeal to the Commission, which was dismissed on April 30, 1998. In the meantime, however, the Commission, on the landlord's motion, refused to recognize an automatic stay of the Rent Administrator's decision, citing Cafritz Co. v. District of Columbia Rental Hous. Comm'n, 615 A.2d 222 (D.C. 1992). Rather, it held that the landlord could collect the increased rents pending appeal unless the tenant established an escrow account in the amount of the increase or purchased a supersedeas bond. See 14 DCMR § 3802.10, 3806 (1991).

Noting that the tenant did not secure a stay, the trial court granted an increase in the amount of the protective order from $300 to $1,168 per month, effective September 5, 1995. On August 9, 1996, after finding that the tenant failed to comply with the modified protective order, the trial court struck the tenant's pleadings and entered judgment of possession for the landlord. The court also set what it called a Trans-Lux *fn2 amount equal to the total unpaid installments of the modified protective order.

We stayed execution of the judgment pending the outcome of the present appeal and instructed the tenant to pay into the court registry any arrearage that had accrued since his last protective order payment at the initial rate of $300 per month. In affirming the judgment, we now lift that stay. *fn3 [712 A2d Page 490]

II.

Before addressing appellant's substantive arguments, we first consider the threshold procedural question whether the landlord prematurely filed the instant nonpayment action. Prior to the entry of judgment against him, the tenant moved to dismiss the case, contending the landlord failed to supply proper notice to cure or vacate, as the tenant claimed was required by the Rental Housing Act of 1985, D.C.Code § 45-2551(b) (1996). Initially, the trial court granted the motion, but later reversed itself, citing § 45-2551(a) and its exception of rent nonpayment cases from the notice provisions of the Act. We agree with the trial court's reading of § 45-2551(a). *fn4

A.

On October 15, 1992, the landlord served the tenant with a "Notice to Quit and Vacate" his apartment for failure to pay rent due on October 1, 1992. The notice listed an expiration date of November 14, 1992, thirty days from the date of service. The tenant refused to vacate, and on November 16, 1992, the landlord commenced the present suit for possession. The tenant moved to dismiss the suit as premature, arguing, as he does here, that under D.C.Code § 45-2551(b) and relevant caselaw he was entitled to a thirty-day "Notice to Cure or Vacate" that could not expire any sooner than on the day of the month upon which his tenancy commenced. *fn5 By this reasoning, the landlord's suit could not have been filed until December 1, 1992.

B.

The Rental Housing Act of 1985 generally protects a residential tenant from eviction, notwithstanding the expiration of the tenant's lease. See D.C.Code § 45-2551(a). The eviction section of the Act outlines specific exceptions to this rule and sets forth the conditions under which eviction of residential tenants may proceed. Regarding notice, the Act provides, "[n]o tenant shall be evicted from a rental unit for any reason other than for nonpayment of rent unless the tenant has been served with a written notice to vacate which meets the requirements of this section." Id.

The notice requirement generally dealing with defaults in lease obligations is that contained in D.C.Code § 45-2551(b): "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." In Pritch v. Henry, 543 A.2d 808, 811-12 (D.C. 1988), we construed this provision to require more than a strict thirty-days' notice when the alleged lease violation is the obligation to pay rent in a timely manner. *fn6 For all other ...


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