Appeal from the Superior Court of the District of Columbia (LTB-30891-05) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Steadman, Senior Judge
Before FARRELL and RUIZ, Associate Judges, and STEADMAN, Senior Judge.
Appellant Phillip Suggs ("Suggs") leased an apartment in a building owned by appellee Lakritz Adler Management, LLC ("Lakritz"). When Suggs failed to pay any rent for May or June 2005, a "Notice to Cure Violation of Tenancy or Vacate" was served on Suggs on June 23. The Notice stated that Suggs was violating "the terms and conditions of [his] tenancy" because of "[c]ontinual late and delinquent payment of rent." When Suggs continued to pay no rent, Lakritz filed a Complaint for Possession of Real Estate on September 12, 2005, setting forth as its basis "material and uncured breach of lease; possession requested; NON REDEEMABLE." The complaint sought only possession, and not back rent,*fn1 based upon the lease violation of consistent late payment of rent. See Kaiser v. Rapley, 380 A.2d 995, 997 (D.C. 1977).
At the bench trial, the trial court ruled that Suggs's claims of existing violations of the Housing Regulations of the District of Columbia, 14 DCMR § 800 (2004), were irrelevant to Lakritz's suit for possession only, and excluded the presentation of evidence on that issue. We agree with Suggs that this ruling was in error.
Ever since the landmark decision in Javins v. First Nat'l Realty Corp.,138 U.S. App. D.C. 369, 428 F.2d 1071 (1970), it has been established that a tenant may raise a landlord's substantial breach of housing regulations as a defense to an eviction action based upon nonpayment of rent. However, the trial court accepted Lakritz's argument, also presented on appeal, that our holding in McNeal v. Habib, 346 A.2d 508, 510 n.2 (D.C. 1975), established the principle that evidence of housing regulation violations is irrelevant in a suit solely for possession based on a notice to quit (in this case, a notice to cure or vacate). Reliance on this decision was misplaced in light of subsequent statutory developments.
In McNeal v. Habib, the landlord gave his tenant at sufferance a thirty-day notice to quit which the court said was pursuant to D.C. Code § 45-902 (1973).*fn2 McNeal, 346 A.2d at 510. Under the law then in effect, this notice terminated the tenancy upon the expiration of the thirty days and the landlord then had the right to possession. Thus, although the tenant in his answer alleged housing regulation violations, we noted that this defense would normally "be irrelevant in a possessory action based solely upon a valid 30-day notice to quit." Id. at 510 n.2. This conclusion was clearly correct since the landlord -- as the law then stood -- had the right to terminate a tenancy at sufferance on thirty days' notice, thereby achieving the right to possession.*fn3 Housing regulation violations would be relevant only with respect to past due rent, which was not at issue in a suit solely for possession.*fn4
In 1974, this legal regime was markedly changed by the enactment of rent control legislation, which included a provision that was the predecessor of what is now D.C. Code § 42-3505.01 (a), (b) (2001).*fn5 Briefly put, as relevant here, a residential tenant in an apartment subject to the rental housing law*fn6 may not be evicted from the apartment, notwithstanding the expiration of the tenant's lease, except for nonpayment of rent or for violation of another "obligation of tenancy."*fn7 Where eviction is sought based on the violation of an obligation of tenancy other than nonpayment of rent, the landlord must give a thirty-day "notice to correct the violation or vacate."*fn8 Thus, if the tenant in McNeal fell within the protection of the current rental housing law, McNeal on its own facts would not today justify a verdict in the landlord's favor. Rather, the landlord would have to show that he had gained the right to evict the tenant under D.C. Code § 42-3505.01 even though he opted to seek only possession.
Kaiser v. Rapley arose after the new regime more protective of a tenant's continued occupancy under the rental housing law had come into effect. See 380 A.2d 995 (D.C. 1977). The tenant in that case had a one-year lease and refused to vacate the premises upon the termination of the year. Id. at 996. The tenant had been consistently late in making rent payments and on five occasions tendered checks that were rejected by the bank for insufficient funds. Id. The landlord served timely notice on the tenant to vacate at the end of the lease term, which apparently was on December 31, 1975. Id. When the tenant did not do so, the landlord brought eviction proceedings on January 6. Id. After the expiration of the lease, the tenant tendered the rent payments for January and February*fn9 and, in her defense to the eviction action, argued that nonpayment or late payment of rent was not a "violation of an obligation of tenancy" entitling the landlord to evict the tenant. Id. at 996-97. She also argued that, in any event, at the time of the suit she was not violating any obligation of the tenancy.*fn10 Id. at 997.
The trial court determined that the real issue before it was whether "a willful, calculated and consistent failure by a tenant to pay rent when due [can be] a present violation of a tenant's obligation under a lease, notwithstanding that the tenant presently owes no back rent." Id. Noting that one of the obligations under a lease is to pay the rent when due, the trial court concluded that there was a "continuing willful violation of the tenancy and that therefore the landlord was entitled to possession." Id. We agreed, concluding that the legislative purpose in protecting tenants did not extend to the "willful and consistent course of conduct held by the trial court to exist here."*fn11 Id.
Kaiser establishes that an action may be brought against a tenant for habitual late payments of rent, even though the tenant is at the time current on rent payments and hence cannot be evicted for nonpayment of rent.*fn12 We have subsequently recognized the distinction between the two types of actions in, e.g., Mullin v. N St. Follies Ltd. P'ship, 712 A.2d 487, 491 (D.C. 1998) and, very recently, in Luskey v. Borger Mgmt., 917 A.2d 631, 632-33 (D.C. 2007). Late payments of rent, at least when continuous and willful, are violations of an "obligation of tenancy" which may be the subject of eviction upon the giving of the required thirty-day statutory notice, just as much as violations based upon occupancy limits, banned use of the premises, or other non-rent-related violations. See, e.g., Grubb v. Wm. Calomiris Inv. Corp., 588 A.2d 1144, 1147 (D.C. 1991). In the case before us, Lakritz attempted to use this theory of eviction. The notice given under the statute specified not nonpayment of rent, but rather "continual late and delinquent payment of rent" and the complaint alleged "material and uncured breach of lease." In doing so, Lakritz argues that, as in McNeal, the housing regulation violations raised by Suggs are irrelevant since only possession was sought and, under Kaiser, the tenant may be evicted for continual late payments.
However, as indicated, McNeal predated the statutory tenancy where eviction could no longer be based on the landlord's unfettered right to terminate a lease in accordance with its terms. And Kaiser did not involve any claim of housing regulation violations to justify the delayed payments based upon the ruling in Javins. It is undoubtedly true that in most actions involving claims of a tenant's failure to cure a violation of an "obligation of tenancy" unrelated to rent payment after receiving the requisite notice, the existence of housing regulation violations will be irrelevant (except in cases of claims of retaliatory eviction). However, where housing regulation violations are asserted by a tenant and the action is based on the continual failure to pay the rent due in a timely manner, such violations cannot be irrelevant to the question of what rent was in fact "due"; that is, in the words of the statute, "the rent to which the housing provider is entitled."*fn13 To accept Lakritz's theory would mean that a landlord, faced with a tenant's claim of housing regulation violations and a consequent dispute over the rent due, could circumvent the issue and evict the tenant by claiming late (or, as in this case, no) payments and by seeking only possession. Such a ruling would effectively nullify the housing regulation protections provided by Javins and the rental housing law's protection of tenants against eviction, except on the grounds set forth in the rental housing law. Therefore, the trial court here should have admitted the full range of evidence relating to alleged housing regulation violations.
The judgment appealed from is reversed and the case is remanded for further proceedings ...