Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
Shires Housing Inc. v. Brown, 2017 VT 60
[H]ere’s a blast from the past — March 2017 to be precise.
Landlord (Shires Housing Inc.) tried to boot Carolyn Brown and her cotenant from a mobile home park. There was no written notice of termination of tenancy. Brown filed a motion to dismiss on the no-notice basis. The trial court found this statute (subsection (a)(3) to be precise) provides an exception to pre-eviction notice. “Nuh-uh,” says the SCOV majority. “Still gotta give notice even if there’s some ambiguity there.” And this one gets turned around on the trial court.
Brown leased a lot in a Bennington mobile home park. The lease said that criminal and drug-related activity were grounds for termination of tenancy. It also required written notice of the reason for an eviction. Shires filed a complaint for eviction alleging that Brown and cotenant had engaged in drug-related activity. Landlord did not provide written notice before filing in court.
Brown filed a motion to dismiss arguing: (1) no prior notice; (2) no violations within the last six months (administrative interpretation of the statute by the Department of Housing and Community Development); and (3) no lease attached. Landlord said: (1) notice not required; (2) that rule conflicts with the statute and should be overturned; and (3) did too! (attach the lease).
The trial court denied the motion to dismiss, ruling that the statute doesn’t require pre-filing notice. So, Brown filed a motion for interlocutory appeal and the trial court was cool with it because there’s some question about the statute’s interpretation — conflicting trial court decisions, administrative rules, and no SCOV guidance.
And that brings us to SCOV.
Brown argues that a written notice is required, the trial court got the statute wrong, and the administrative interpretation and rule is correct. The SCOV majority agrees that the statute is ambiguous and the rules of statutory construction support Brown’s position.
SCOV reviews a motion-to-dismiss decision de novo. In this situation, SCOV looks at “whether the bare allegations of the complaint are sufficient to state a claim.”
So we begin with the statute’s language. Brown argues that there’s ambiguity. Shires argues the trial court got it right and any time there’s a substantial violation, an eviction needs no notice. Let’s look at the language ourselves:
A leaseholder may be evicted only for nonpayment of rent or for a substantial violation of the lease terms of the mobile home park … and only in accordance with the following procedure:
…
(2) Prior to the commencement of any eviction proceeding, the park owner shall notify the leaseholder by certified or registered mail, except as provided in subdivision (3) of this subsection:
(A) of the grounds for an eviction proceeding;
…
(3) A substantial violation of the lease terms, of the mobile home park, or an additional nonpayment of rent occurring within six months of the giving of the notice referred to in subdivision (2) of this subsection may result in immediate eviction proceedings.
Is that ambiguous? And if so, what did the Legislature intend when it enacted the statute?
The majority deems it ambiguous based on the language’s plain and ordinary meaning, noting that “the statute starts with the premise that all mobile home park eviction actions must be preceded by notice, unless an exception to the notice requirement applies.” And that means that we focus on subsection three. That subsection provides for eviction based on a “substantial violation of the lease terms, of the mobile home park, or an additional nonpayment of rent occurring within six months” of a notice. Landlord says, “Yeah. Substantial violation of the lease terms. Do not pass GO. Go directly to court.”
“This isn’t Monopoly and that’s a Chance Card. Also, wrong,” says the majority. (I don’t know that I need to tell regular readers that this exchange is not actually in the opinion and exists only in my head, but that’s the deal. I’m totally making this exchange up.) The majority reasons that whether “occurring within six months” applies only to nonpayment of rent or all three situations mentioned is ambiguous.
If the Legislature wanted to get rid of the notice requirement, it could’ve put the substantial-violation language in its own subsection. And Shire’s argument would require reading out the word “any” in subsection two (“Prior to the commencement of any eviction proceeding”). That makes it ambiguous.
The majority notes that administrative interpretations can be important and here, the Department of Housing and Community Development interpreted the statute to include a within-six-months-of-a-previous-notice-for-a-serious-violation provision. The majority, within reason, defers to this interpretation.
The majority also notes that there’s support for this interpretation because the intent of the Act is to protect mobile home owners from arbitrary evictions. A mobile home owner can only move at some cost and inconvenience, so it doesn’t make sense that the owners would be given less protection than renters.
The majority looks at a couple other things, including an amendment to the statute that requires a criminal activity-based eviction be commenced within 60 days of arraignment. The majority reasons that this is another indication that the Legislature intended to give residents protection against arbitrary protections.
Justice Skoglund dissents. She reasons that the statute isn’t ambiguous. Illegal activity substantially violates the lease. There doesn’t need to be written notice of termination because the statute doesn’t require it.
There’s a general rule: notice is required. There’s an exception: a substantial violation of the lease terms. End of story. No notice required. Substantial violation of the lease terms is singled out for a reason.
In the dissent’s view, “The Legislature set up a balanced notice scheme based on the character of the leaseholder’s violation.” This isn’t arbitrary. It sets up and classifies things reasonably.
Of note to nerds: this is the first time in practice that I’ve seen the Redbook cited in a legal opinion. There you go, Vermont Law Review. The Redbook does matter.
If a participial phrase does not start a sentence, it should modify the noun, pronoun, or noun phrase that most closely precedes it.
And that, the dissent reasons, is why the “within six months” phrase applies only to nonpayment-of-rent situations.
There’s a phantom comma and participial phrase argument that the dissent reasons renders any imagined ambiguity nonexistent. The “within six months” modifies only the nonpayment-of-rent basis.
The dissent reasons that the statute’s “language is not ambiguous … [but] creates a graduated procedural scheme depending on the type of violation.”
I think the bottom line is that we need more English teachers and editors in the Legislature. Words matter.
