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Scarborough v. Winn Residential L.L.P./Atlantic Terrace Apartments

January 12, 2006

SANTOSHA SCARBOROUGH, APPELLANT,
v.
WINN RESIDENTIAL L.L.P./ATLANTIC TERRACE APARTMENTS, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LT-15619-03) (Hon. John M. Campbell, Trial Judge).

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

Argued September 20, 2005

Before FARRELL and REID, Associate Judges, and KING, Senior Judge.

Appellant Santosha Scarborough is a tenant of the Atlantic Terrace Apartments, a housing complex for which the federal government provides subsidized housing to tenants under HUD's Section 8 housing Moderate Rehabilitation ("Mod Rehab") Program, pursuant to 42 U.S.C. § 1437f. Following a trial, the Superior Court entered a judgment of possession in favor of Winn Residential L.L.P./Atlantic Terrace Apartments (collectively, "the Landlord") after finding that Ms. Scarborough had violated a condition of her lease that prohibits, under pain of lease termination, criminal activity on the premises that threatens the health, safety, or right to peaceful enjoyment of other tenants. Specifically, the court found that Scarborough was responsible for the presence in her apartment of a loaded 12-gauge shotgun that had been used in a fatal shooting there the previous day.

On appeal, Scarborough raises a series of issues, chief of which is that the judgment of possession is invalid because, before initiating the suit for eviction, the Landlord did not comply with D.C. Code § 42-3505.01 (b) (2001) by giving her a "notice to correct the violation" within thirty days. We reject this argument because we conclude that the requirement of a notice and opportunity to correct (or "cure") as applied to criminal activity - such as possession of the loaded shotgun in this case - that endangers the safety or right to peaceful enjoyment of other tenants may not be imposed consistently with the federal statute and regulations governing appellant's tenancy. And because we reject appellant's other arguments as well, we affirm the judgment of possession.

I.

Scarborough has been a tenant of the Atlantic Terrace Apartments since 1999 under a lease requiring her to pay a fixed amount each month toward the market-based rent, with the balance paid to the Landlord by way of a HUD Section 8 subsidy. Her lease, which was for an initial one-year period to continue month-to-month thereafter, includes a paragraph (no. 23) which states, among other things, that the Landlord may terminate the lease for four reasons: (1) material non-compliance; (2) material failure to carry out lease obligations; (3) criminal activity; and (4) other good cause.*fn1

Evidence largely undisputed at trial established that on December 12, 2002, Scarborough's cousin, Delante Simmons, entered her apartment after he had been drinking and began an altercation with her. Scarborough's boyfriend, Desmond Barr, who was also present, withdrew a shotgun (from where it is not apparent) and fatally shot Simmons. Executing a search warrant for the apartment the next day, the police found a loaded twelve-gauge semi-automatic shotgun next to the water heater in the furnace room, a loaded semi-automatic pistol under the seat cushion of a couch, a box of Remington shotgun ammunition containing twenty-three shotgun shells, and a box of cartridges for the semi-automatic pistol. Barr was later acquitted of second-degree murder (the jury apparently accepting his claim of self-defense) but convicted of possession of an unregistered firearm and ammunition.

As a result of the shooting and the shotgun possession, the Landlord enlisted Karl Stevens, a professional process server, to serve a Notice to Quit on Scarborough. Twice in February 2003, Stevens unsuccessfully tried to hand deliver the notice to her at her apartment. On February 15, 2003, he posted the notice on her apartment door and then went to the post office and mailed copies of the notice to her and the District of Columbia Department of Regulatory Affairs. The Notice to Quit stated:

[Y]ou are in violation of your lease by endangering the health and safety of other residents by having a firearm on the premises. Specifically, on or about December 12, 2002 a homicide was committed on the apartment property. On that same date, members of the Metropolitan Police Department conducted a search of your apartment and located a gun which was believed to have been involved in the homicide. In any event, maintaining a gun on the property violates the terms of your lease, HUD regulations and is a crime in the District of Columbia.

The notice required Scarborough to vacate the premises by March 25, 2003. It did not provide her with an opportunity to cure the lease violation.

At trial on the Landlord's suit for possession, the judge first rejected Scarborough's contention that the written notice failed to apprise her adequately of the basis for the eviction.*fn2 He then rejected her argument that the notice was insufficient too by not giving her the thirty-day opportunity to correct the violation provided by D.C. Code § 42-3505.01 (b). The judge assumed that by its terms this statute requires a notice to correct be given even where eviction is sought for dangerous criminal activity on the premises, but ruled that federal regulations governing Scarborough's tenancy "supersede[d]" District law in this regard and "preclude[d]" an opportunity to correct or cure in these circumstances. "[I]f there were a right to cure," the judge explained, "that would effectively gut the import of the federal regulations on this point, namely that endangering health and safety justifies a termination [for a violation] that cannot be cured."

II.

D.C. Code § 42-3505.01 (b), part of the District's Rental Housing Act first adopted by the Council of the District of Columbia in 1985, states 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." When applicable, compliance with this provision is necessary before a landlord may institute eviction proceedings. See, e.g., Cooley v. Suitland Parkway Overlook Tenants Ass'n, 460 A.2d 574, 576 (D.C. 1983) ("[A] tenant ...


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