Appeal from the Superior Court of the District of Columbia (LT-15944-03) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL, GLICKMAN, and FISHER, Associate Judges.
In two recent decisions upholding evictions from federally-subsidized housing accommodations, Scarborough v. Winn Residential L.L.P./Atlantic Terrace Apartments, 890 A.2d 249 (D.C. 2006), and Calloway v. District of Columbia Hous. Auth., 916 A.2d 888 (D.C. 2006), this court held that the statutory federal "one-strike" policy embedded in lease provisions permitting eviction for criminal activity displaces - when applied to such activity - a District of Columbia statute generally allowing tenants an opportunity to correct or "cure" lease violations and thereby avoid eviction. See D.C. Code § 42-3505.01 (b) (2000).*fn1 The main issue this case presents is whether that federal policy is self-executing, i.e., whether it displaces operation of the local cure statute where criminal activity is alleged (and shown) but where eviction is sought based only on a lease provision that does not incorporate the prohibition against criminal activity. We answer that question "no": the federal policy is effectuated through a specific lease provision and resultant contractual liability of the tenant, and because the lease paragraph appellant was charged with violating contained no specific reference to criminal activity, federal law does not preclude the cure opportunity afforded her by District law. Moreover, because D.C. Code § 42-3505.01 (b) does not itself withhold its protection from lease violations criminal in nature, the District as landlord must serve appellant with a proper notice to correct or vacate before it may pursue eviction for the violation alleged.
Appellant is a tenant in the Benning Terrace apartment complex in Southeast Washington, D.C., a federally (HUD)-subsidized property owned and operated by the District of Columbia Housing Authority (DCHA or the Authority). At the relevant time, appellant's lease agreement listed Davon Pratt, her son, as a household member. Paragraph 5 (l) of the lease required appellant
[t]o conduct . . . herself and cause other persons who are on the premises with . . . her consent to conduct themselves in a manner that will not disturb . . . her neighbor[s'] peaceful enjoyment of their accommodations and will be conducive to maintaining the project in a decent, safe and sanitary condition.
Paragraph 14 (c)(iii), in turn, authorized DCHA to terminate appellant's lease "[f]or serious or repeated violations" of named lease provisions, including paragraph 5 (l). Although this language is broad enough to encompass the criminal activity at issue here, it does not, as will be apparent, embody the specific obligations of tenancy that we relied upon in Scarborough and Calloway, supra.
In April 2002, a police officer saw Davon Pratt driving a stolen automobile on F Street near Benning Road, S.E., and subsequently found the car parked, unoccupied, in an alley off G Street within the Benning Terrace housing complex. Davon's identification was in the back seat of the car. On February 25, 2003, DCHA served appellant with a Notice to Vacate charging that she or a family member had "violat[ed] the terms and conditions of [her] lease and tenancy," and requiring her to vacate the premises within thirty days, with "no right to cure." Specifically, besides alleging violation of paragraph 5 (l) (by "act[ing] in a manner which disturbs other residents' peaceful enjoyment of their accommodations and . . . is not conducive to maintaining the housing development in a . . . safe . . . condition"), the Notice alleged a violation of paragraph 5 (m), which required appellant "[t]o refrain from illegal or other activity which impairs the physical or social environment of the project." An addendum to the Notice described the police officer's observations of Davon driving (and abandoning) the stolen car as "the criminal activity resulting in this action."
When appellant failed to vacate as required, DCHA sued for possession of the rental unit in Superior Court. Before trial, the judge struck the alleged violation of paragraph 5 (m) from the complaint because, while it prohibited "illegal activity," it did not impose responsibility on appellant to "cause other persons" to refrain from that activity, and the illegal activity alleged was ascribed only to her son, not herself. DCHA ultimately did not object to this deletion, and has not challenged it by cross-appeal. On the other hand, the judge rejected appellant's request to dismiss the suit because she had not been given an opportunity to correct (or cure) the violation of paragraph 5 (l), as required - she maintained - by D.C. Code § 42-3505.01 (b). The complaint thus was submitted to the jury as alleging a paragraph 5 (l) violation only.
DCHA presented testimony about the prevalence of auto theft and abandonment in and around the Benning Terrace complex and the hazard to residents from young people driving stolen cars through the complex at high speeds. At the close of trial, the judge instructed the jury (as relevant here) that, to support eviction, DCHA had to prove that Davon Pratt had "committed [the] crime of unauthorized use of a motor vehicle" (UUV) and that this criminal activity had disturbed the safety or peaceful enjoyment of the premises of other residents, as set forth in paragraph 5 (l).*fn2 The jury found both facts and awarded possession to DCHA.
Appellant's primary argument to us is that the trial judge erred in ruling that she was entitled only to a proper "notice to vacate" rather than a "notice to correct or vacate" before DCHA could sue to evict her for violation of lease paragraph 5 (l). DCHA responds that, under our decisions in Scarborough and Calloway, supra, appellant was not entitled to an opportunity to cure because the basis for her eviction, both as stated in the Notice to Vacate and as proved to the jury's satisfaction, was her responsibility for criminal activity by Davon Pratt, her son and a member of her household. Appellant rejoins that Scarborough and Calloway each, in holding the statutory cure provision pre-empted (or superseded) by the federal one-strike policy, rested decision on the inclusion in the tenant's lease of a provision expressly permitting eviction for criminal activity that threatens the safety or peaceful occupancy of other residents - something absent from paragraph 5 (l). We are obliged to agree with appellant.
Scarborough began its analysis by recognizing that, "[w]hen applicable, compliance with [§ 42-3505.01 (b)] is necessary before a landlord may institute eviction proceedings." 890 A.2d at 253 (citation omitted).*fn3 But, because the challenged eviction there was from federally-subsidized housing, it implicated "the federal government's authority 'as a landlord of property that it owns,'" id. at 257, and so the court had to examine the interplay between the cure statute and Congress's determination "to prevent crime in federally- assisted housing by permitting the eviction of tenants when they or persons they have allowed access to their premises commit crimes threatening the health or safety of other residents." Id. We concluded in Scarborough that "[a]pplying the cure provision of . . . § 42-3505.01 (b)" in this setting "would stand as a pronounced obstacle to" ...