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Borger Management, Inc. v. Nelson-Lee

October 30, 2008

BORGER MANAGEMENT, INC., APPELLANT,
v.
CAROLYN NELSON-LEE, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LTB457-07) (Hon. Thomas J. Motley, Trial Judge).

Per curiam.

Argued September 17, 2008

Before FARRELL, Associate Judge, Retired, and NEBEKER and SCHWELB, Senior Judges.

The sole issue in this appeal is whether the Rental Housing Act of 1985 requires a landlord, before suing for possession, to provide tenants with an opportunity to cure violations of tenancy obligations when six months earlier the landlord gave notice of similar violations, which the tenant cured. Appellant Borger Management invites us to read the statutory language broadly and require only one notice to cure before a landlord may issue a notice to quit for a subsequent violation, even if the tenant has cured within the thirty-day cure period. We conclude that once prior violations have been sufficiently cured, landlords are required to give tenants thirty days to cure any subsequent violations. However, when there is a similar repeat violation after the initial thirty-day period, we further conclude that the Rental Housing Act allows for a fact sensitive inquiry into whether a tenant has effectively cured. Such an interpretation allows landlords to issue only a notice to quit, even after the cure period has elapsed, when a tenant temporarily stops the violation in the thirty-day period but repeats the same violation soon afterwards.

I.

Appellant Borger Management, Inc., leases an apartment to appellee Carolyn Nelson-Lee in a building the company manages on Hawaii Avenue in the District of Columbia. Nelson-Lee's apartment is near an apartment leased to William Dawes. In May 2006, Dawes withheld his payment of rent and claimed that the warranty of quiet enjoyment had been breached by excessive noise coming from the apartments leased to Nelson-Lee and a third tenant. In a settlement agreement with Dawes, Borger agreed to take action against his neighbors over the excessive noise.

On June 2, 2006, Borger issued a Notice to Cure or Quit to Nelson-Lee. The notice explained that music was being played from the apartment at "such a high volume that it can be heard from outside your apartment and is disturbing to your neighbors [who] are being routinely disturbed by the high volume of your music on almost a daily basis." The notice stated that Nelson-Lee must either cure the problem within thirty days or vacate the apartment by July 10, 2006. Of particular importance is this sentence:

You have thirty days within which to cure the foregoing violation, in which case this notice shall be deemed withdrawn, provided, however, that a renewal of such violation shall be cause for the landlord to seek possession of your premises without further opportunity on your part to cure such a violation.

(Emphasis added.) Borger acknowledges that the excessive noise from Nelson-Lee's apartment stopped and that it received no complaints from Dawes in June or July 2006. Before the trial court, Borger explained that because the excessive noise ceased within the thirty-day period to cure, "Ms. Nelson in this case did not have to be out on July 10th."

A short time later, however, the noise and complaints resumed. Dawes reported excessive noise from Nelson-Lee's apartment multiple times in August, September, October, and November 2006. On November 28, 2006, Borger issued a notice to quit against Nelson-Lee and instructed her to vacate her apartment by January 1, 2007. This second notice did not provide a new period to cure the violations. Instead, the notice stated that the subsequent noise violations demonstrated that the original violations had not been adequately cured during the thirty-day period provided in the original June 2, 2006 notice.

After Nelson-Lee refused to vacate her apartment, Borger filed a complaint for possession. At a hearing, the trial court dismissed the complaint, concluding that the November 28, 2006 notice to quit was defective because it did not provide Nelson-Lee with an opportunity to cure. The ruling was premised on Borger's concession that Nelson-Lee had in fact corrected the violation during the thirty-day cure period. On appeal, Borger contends that the trial court erred in concluding that the Act required the company to provide the tenant with an opportunity to cure, when it had previously done so six months earlier. Amicus curiae Legal Aid Society of the District of Columbia argues that the law requires landlords to provide such an opportunity.

II.

Pursuant to the Rental Housing Act of 1985, a landlord may evict a rent-paying tenant "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." D.C. Code § 42-3505.01 (b) (2007 Supp.) (emphasis added). The implementing regulations mirror this language. See 14 DCMR §§ 4301.1, 4301.3 (2004). The plain language of this statute is that landlords are required to provide a single notice to cure or vacate, and that a notice to quit is insufficient if it does not permit the tenant to cure the violation.

Our prior case law demonstrates that a notice to quit must also contain a notice to cure in order to be valid. In Cormier v. McRae, 609 A.2d 676 (D.C. 1992), we explained that a landlord was formerly required to issue both a notice to cure and a separate notice to quit, but that changes to ...


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