Ayers v. Landow

pass key. They running with a found water RUIZ, Before SCHWELB and Associate sink, “virtually full from the evi- force” MACK, Judges, Judge. Senior dently trap the was broken. There because SCHWELB, placed pot trap, a under the which led Judge: Associate Ayers knew of to believe Landow the During the course of a bench trial this report failed to to the land- leak but had tenant, dispute between a landlord a the lord. judgment in the judge entered tenant’s favor upon ground the that the landlord failed to trial, apartment Ayers At described of Tenants serve Notice Cure Violations Photographs being shocking condition.1 (the notice) required or Vacate in the manner and, introduced into evidence after hav- were Although recognize, as did law. we them, judge ing seen remarked that judge, which trial “there’s one the United States who hypertech- failed the landlord try place get a out if the wouldn’t tenant one, agree nical that the we place way does.” looked this construed, applicable reasonably Following an unsuccessful informal at- compels the result that he reached. Accord- tempt persuade Landow correct judgment. ingly, we affirm the apartment, Ayers conditions in the deter- premises mined to seek I. upon grounds that Landow was viola- trial, provision requiring lease him appellee Lan- tion of his At time Stuart been, good to maintain the unit in order. approximately had fourteen dow 45-2551(a) (1990). years, On March apart- a tenant of unit a small one Landow, 12, 1993, Ayers’ attorneys sent Washington, building ment northwest D.C. landlord, a “Notice Cure Violation appellant Robert certified Landow and Tenancy Subsequently, Ayers, for several or Vacate.” had been embroiled W. Okay. following: Pail human hair. testimony THE COURT: included the Chips Approximately 20 THE WITNESS: say honestly I’ve THE WITNESS: I can crumbled, approxi- Ahoy or containers cookie condition, apartment in as bad never seen boxes, mately empty approximately cereal approximate- specific. I There was and can be Now, just are two dozen milk cartons. these ly quarter apart- inch dust over the entire apartment. in the floor, newspapers probably ment on the refrigerator, apparently In the had having up been or various states of stacked, crumbled defrosted, eight I found to ten ice never been throughout thrown used Kleenex cartons, maggots, piece of meat with cream pails apartment, human hair in bath- further, perhaps a dozen milk cartons. room. though appeared it had been The bed hair? Pails of human THE COURT: in, attempted had defecated pail. THE WITNESS: A tenant): himself with the covers. smell (counsel cleanse MR. BATTINO coming just overpowering. difference, that unit is from Honor. There's a Your a breath in personally can—it's hard to take Okay. THE COURT: pail. there. A THE WITNESS: April April reasonably March March ambiguous, and could be inter- process attempted server preted to effect than to mean no later three personal service of the Landow. apparently Landow not at home on repeatedly expressing After concern about and, occasions, of these dates2 on all four the technical character of Landow’s defense4

process posted copy server of the notice on any relationship and its lack of to the merits May the door. On the conditions ruled, controversy, judge “with apartment having only minimally been hesitation,” great pause fa- Landow’s abated, Ayers filed suit judge “strange vor. The found it that Superior Court. say days legislature would within three ruled, perti- mean two weeks He before.” II. part, nent as follows: Following preliminary several skir mishes not appeal, relevant to this the case says operative sentence “If the notice came to trial on October 1993. On the premises, copy on the shall be initiative, judge’s court and counsel focused days.” Evidently, mailed three within self- (1990), on pro which evidently, my judgment, that statute pertinent part vides in that something happens if envisions that there quit][3] posted [i]f [to on the posting. precedent has been If the event premises, copy of the notice shall be occurred, utilizing posting of service has mailed postage pre first class U.S. party then the shall mail. It does not paid, premises sought to be recov contemplate prophy- some kind of blanket ... days ered within S calendar instance, mailing, lactic earlier and in this recall, the evidence revealed that added). (Emphasis there was a some ... [s]even Landow that contended unambiguous, prior posting in the It and that case. seems plain meaning notice substantial before the me of that statute conformity plain was not in you is that if have been unable to effect the language Ayers, placing preferred of the statute. his two kinds of service for a notice cure, mail; primary then, reliance you post, you on District Columbia v. shall Gantt, (D.C.1989), other, 558 A.2d ar- and one has to come before the it gued phrase days” that the “within three seems to me. ancy right expiration

2. All four of the on which service which ends attempted working days, thirty days were and each at- after the date this notice is served tempt during working you. you was made hours. Landow This is the notice will receive. daytime added). employment claims that (Emphasis he has and that Ayers spite language, should have known that Landow would be In Landow was italicized working process at the times server came to five different occa- served with this sions, apartment his and would not be at home. In by posting. once mail and four times light disposition, not, however, of our we have no occasion to He did make claim in either attempts determine whether these constituted confusing court that the content of the notice (1990), diligence. defective, due See D.C.Code 45-1406 and we do rendered it not base authorizing by posting only if tenant “can ground. our decision on that not found.” quit may and a 3. A notice to cure notice to attempting In addition to to serve Landow at case, combined, they single were in this into expected at home times when Landow would be McRae, document. Cormier (D.C.1992). 609 A.2d work, (or Ayers attorneys) complicat- to be process by ed the use of a notice to which singularly phraseology. contained infelicitous alia, notice, undated, remarked, judge inter that "this is contained this 4. The illuminating explication hypertech- ... land of [t]he of the time available to landlord-tenant court nicality.” quit: to cure Winchester Van Buren Tenants Landow Cf. you Rental Hous. Please be advised that if fail to cure said Ass'n v. District violation(s) Comm'n, (D.C.1988) thirty day (judges prior to the end of the premises presiding period you over landlord-tenant controversies are to vacate the expiration to "the esoteric and of this notice. This notice will ex- must accustom themselves arcane"). your monthly pire expiration ten- as of the Gantt, according meaning. In adopt plaintiffs To of universal tempo- judge, this statute could lead to a kind of word “within” use me, anarchy, regard ral it seems clearly designed drop a curtain the scheme.... end, finality temporally, say [to] at the point you make beyond this shall practical next addressed the claims a decedent’s estate. [I]n implications Ayers’ position. He observed “within, context, ruled that [the court] that, proposed under the landlord’s construc- my judgment, can mean before.” 45-1406, “hypothetically, you tion of what this context “within” does mean then, could do is to mail on 1st and can mean “before.” June, you get you when around to could post, bring and then wait 30 and a added). (Emphasis judge distin- thus Alternatively, lawsuit the end of June.” ground guished essentially upon the Gantt observed, “you just judge the do could a discussed above at the considerations prophylactic mailing of a of notices to bunch Ayers’ pp. which in his view rendered saying you’ve got many people, cure all too §of and construction 45-1406 unreasonable days, days, you’re then wait 60 see if unworkable, present not in simply were happy post people on the that are still Gantt. —and problem.” judge a concluded that “that III. regard ambiguity kind of to this advance mailing, predicate having without the [event] question whether just yet posting, clearly occurred period permits mailing a before a substantial contemplated by Final- what’s the statute.” purely by posting is one of law. We pointed certainly ly, he out that “there’s judge’s ruling need the therefore not accord prejudice a com- or burden on landlord from deference, any and our review is de novo. plying straightforward interpretation awith States, Guadalupe v. United of this statute.” (D.C.1991). have, however, 1352 n. 7 We set judge’s in Gantt, reasoning forth the trial some

Ayers heavily supra, on relied because, view, in our his construction Gantt, detail A.2d at 1122-23. In this court was orally gave from the which upon to construe called bench, eloquent persuasive. 903(a) was both and (1981), provided which at that time judge that read the agree We that claims a decedent’s estate were present phrase days,” “within three the presented “unless within 6 months barred context, countenancing mailings as effected publication first of no- after the date the the weeks or even months before on appointment personal repre- tice of the of a “tem landlord relies would create the quoted sentative.” We held in Gantt that the prob poral anarchy” practical a and host language clearly “does not state whether legislature not have lems which the could only specified the claim be filed within When, example, ten for would the intended. period may filed but six-month or be earlier quit” required to if a letter ant be “cure period.” Id. at no later than end if to him on were mailed considering legislative histo- 1122. After year door half a notice were tacked 20-903(a), ry of we concluded July? later four different More only a termination legislature “focused over, itself, letter, by concededly inef claims, begin- filing not on a date effect, is, It fective to achieve service. ning as well.” Id. at 1123. nullity. nullity do not that such a We believe The trial remarked that the decision converted, retroactively can substantial give pause,” me in Gantt “has fact, part of into one land- had caused him rule almost of the notice. sufficient service reflection, Upon further howev- lord’s favor. case, posting of er, present each case he concluded that “the Gantt attempt clearly distinguishable.” notice followed an unsuccessful He described Gantt “within,” If had been effect service. Landow standing proposition for the terms, single the occasions when the at home on legal like other does not have technical, “contrary ly process apartment, post- server came to his and that the result is ing unnecessary, of fair- principles would have been and the most fundamental previously position equity.”7 Ayers mailed letters would have accom- takes the ness and plished nothing “early” confusion. The Council that Landow was not harmed sup- us, effect, of the District of cannot mailing and to invoke asks posed harm, to have intended that landlords be principle of “no no foul.” permitted with the statute mail- abstract, Ay- At least when framed in the ing posting, letters in advance when those argument appeal. There ers’ is not without might superfluous, turn letters well out to be re- appears question to be no that Landow misleading to the tenant as well. The quit or cure. It was ceived the notice to letter, requires posted separate on four occasions on his door out, judge pointed the notice is later, and mailed to him once. Two months premises. on the When the notice May complaint Ayers’ action posted, nothing has not been there is was served on Landow. The language purpose or the of the statute which begin trial did not until October. Landow give any mailing effect at all. he, fully deny, does not nor can that he was Moreover, sup of the notice to Ayers apprised of the claim which was mak- plement posting required §by is 45-1406 for ing against long him before Landow was by posting constitutional reasons. Notice of upon called to defend it. apart a summons on the door to the tenant’s Moreover, although the case was decided ment, more, without has been held to be any in Landow’s favor before he had occasion constitutionally inadequate. Greene v. Lind defense, present appears it to substantive 444, 453-56, sey, 456 U.S. judge’s photo- from the comments on the (1982). 1879-81, 72 L.Ed.2d 249 The graphs which were admitted into evidence 1984; requirement timing was added its Ayers presented strong prima that facie suggests response that it was enacted to might easy case which not be for Landow to decision. Greene Frank Emmet Real meet on the merits. An observer not condi- Estate, Monroe, 134, 136 Inc. v. n. 5 our tioned the niceties of landlord-tenant (D.C.1989).5 45-1406, The of words literal might why, if law well ask the tenant construed, ly wholly are consistent with the apparently in of a basic condition of breach apparent imperative; you constitutional lease, his and if he has received actual notice post, you then must or the will on numerous landlord’s contentions comport process. mailing, with due occasions, him the case should be words, ancillary in other to the any thrown out of court without determina- Accordingly, judge’s we are satisfied that the tion of the merits. reading of the statute was correct.6 explicitly As counsel for the tenant

IV. argument, requirement of a conceded at court, Ayers quit initially designed pre claimed the trial and reit- notice to to evictions, appeal, “surprise” erates that of vent and to assure adopted by finding § 45-1406 the trial is undu- a tenant would have notice before debatability ques- 5. The "[t]o Frank Emmet decision deals with the 1984 conclude that the (1989), amendment ambiguous of D.C.Code tion whether the statute is itself provided by post- that a summons served ambiguous is hand the renders the statute ing must also be mailed to the tenant. That appellant victory requiring him to win without amendment, which is contained in the Eviction Anderson, any points.” United States v. 313 Act of D.C.Law 31 DCR Procedures 335, -, U.S.App.D.C. (1995) (en banc) 59 1340 F.3d imposed such a for the also (dissenting opinion of five quit service of a notice to in D.C.Code 45- J.). Ginsburg, judges per judge synopsized the main 7.The trial landlord’s dissenting colleague suggests 6. Our because, argument: [long gets ”[S]o as] ambiguous according 1406 is to the advance, judge, the harm." trial other members of his court “are what’s ruling in different directions on this issue.” But 56 tent,9 Hunt- did

furniture on the street. See Davis v. or manner of service10 the notice (Su- er, any Daily Wash.L.Rptr. 104 mischief 934 not cause threaten Johnson, per.Ct.D.C.1976); Hughes initially designed 108 which notice to (Su- Daily Holmes, Wash.L.Rptr. n. 7 to avert. Wendell OliveR Cf. (1921) (“[i]t law, revolting per.Ct.D.C.1980). At land- common Path Law self-help lord was to use recover have no reason for a rule of law entitled better Goodman, possession, laid down in the time of see Snitman v. than IV”). conclude, (D.C.1955), fair by Henry A.2d think it overruled We Johnson, (D.C.1978) event, Ayers’ Mendes v. failure 389 A.2d 781 (en banc), prejudice possibility and the that a tenant’s the commands of 45-1406 did not belongings prem- surprising be from the Landow all. It is not removed spoken by one. first substantive words Landow’s ises the landlord a realistic Mendes, however, Honor, attorney our trial were: “Your Since decision lawfully is a dispossessed with- landlord tenant law law of technicali- cannot suit, provide out the which will ties.” institution notice; self-

him with if the landlord uses Although rejoice those there are who help, right compensatory the tenant has a price regime,11 paid. is a to be this there damages, punitive entitled reality present that it case illustrates damages fees as and an award counsel a law attorneys can be difficult even for from See, Stein, e.g., well. Parker v. specializes litiga- type firm which in this (D.C.1989). 1319, 1321-22 dot all all their t’s tion to their i’s cross instance, cases, regard preparation present In the in most and service salutary purpose avoiding quit. eviction a sufficient notice As noted, by judge for simply trial it should be difficult without notice could achieved serving attorneys com- trained with 45-1406 the landlord’s Davis, Many possession. plaintiffs Dai- plaint supra, for 104 as we now construe it. of the bring Supe- ly ample possession for in the Wash.L.Rptr. at 934. Landow had who actions Court, however, following pleading to rior are small landlords who time the service training. They sup- legal circum- do not have are prepare his defense. Under these stances, “lay persons, in in any imperfection timing,8 posed in con- to be a forum which judge Superior when a Court of Connecticut 8. The that can arise as to 11.A confusion has written: quit notice to to be served evident from is tenant, When a who is under an oral month- present of such case. For other illustrations lease, an to-month is served eviction confusion, see, dissenting e.g., majority during ten month for first 618, Kosmadakes, opinions Zoby v. 61 A.2d rent, setup pay the situation is also a failure for the (D.C.1948); Henry, Pritch 543 A.2d 620-21 808, v. cf. lawyer. a common [tenant's] This is (D.C.1988). 811-12 attorney inexperienced mistake a downtown lip-smacking With rel- law. in landlord-tenant ish, held, example, notice to It has been for that a 9. attorney [tenant's] moves to dismiss. clear,” quit purposes for of a residential very explains. defective "It "The statute is Spanish, ten-day grace period pay if the provides lease if it written even rent is not a matter, (or, an lease. In this case the notice to speaks only English under oral for that tenant quit day Slovak, Swahili). on the ninth of the month. served Kelly, v. Kline Swedish or early Consequently, it is too for the current 101, (Su- Daily Wash.L.Rptr. 104-05 116 preceding It also too late for the month. month, Capitol Hill per.Ct.D.C.1988), but Ontell cf. notice must be served because such 1292, Partnership, & 527 1295 E.W. Limited during was not in which the rent month (D.C.1987). 4n. paid.” right. throw out and He is dead I the case Brawner, See, e.g., 56-57 435 A.2d Jones again packing. send Mr. Three-Piece Suit (D.C.1981), holding that a who failed rich, delight seeing must secret confess a receipt signed year who pay rent has legal who so technicalities to their often use by regis- reflecting received the notice that he advantage, game being outclassed their own successfully dismiss the move to poor. tered representatives the skillful complaint not served action because Doing Judge Judge Satter, Robert Justice —A Trial (1990). prescribed law. him in the manner Work

57 assistance, judicial within the function operating legal without initi- It is not [can] ... in order to judicial ... to rewrite the statute litigate proceedings.” ate ... ‘fair’”_ make it more Columbia Goodman v. District Columbia Rental (D.C. Comm’n, Road Tenants’ Ass’n v. District Hous. 573 A.2d Comm’n, 1990). Hous. Rental particu- “Procedural are technicalities (D.C.1990). Mr. duty, paraphrase “Our larly statutory inappropriate in such a Judge Holmes a conversation Justice pro scheme.” Id. The unfortunate se land- Hand, justice but to Learned is not to do caught bewildering in the maze of notice lord hope justice is done.” apply law and quit requirements, through notes 8 see States, 447 U.S. v. United supra, may in much the find himself same Bifulco (1980) 2247, 2259, 65 L.Ed.2d S.Ct. position as the Mikado’s disfavored “billiard C.J., (Burger, concurring). Because we sharp,” play who had to judge’s agree with the trial construction extravagant .... matches judgment appealed from is finger-stalls In fitless hereby aOn cloth untrue cue With twisted Affirmed. elliptical And billiard balls. RUIZ, Judge, dissenting: Associate Sullivan, The William GilbeRT & ARTHUR landlord, brought Ayers, a Robert W. (1885). Mikado, Act II in the action for of real estate Superior Branch of the

Landlord and Tenant tenant, result of the failure of the Court as a light foregoing, Ayers may well Landow, numerous violations to cure Stuart claim, abstract, legitimate have tenancy apartment build- in the landlord’s unjust a decision in Landow’s favor is or even ing. judgment in the The trial entered does, however, Assuming irrational. that he favor, ruling that he did not receive tenant’s the relief he seeks must be obtained an- the viola- properly-served notice to cure other forum. quit premises required tions or provisions. I con- statutory service Because that the landlord receive notice con- clude that the tenant did specified serve the notice to or cure statutory requirements, I would sistent with way imposed by is statute. Section 45-1406 judgment remand this case reverse the and 854, 1901, 1382, in eh. was enacted see Stat. proceedings. for further 1223, and it was reaffirmed and even recently as broadened as 1990. See D.C.Law I. 3, The of the 31 DCR 2537. Council parties have had a difficult landlord- District of Columbia has thus retained the years. relationship for over fourteen properly of a served notice to 1993, the the landlord entered quit long dissipation danger after the of In of uninhabit- physically apartment and found an that the tenant would be evicted tenant’s appeared The tenant to able and toxic scene. without notice of the landlord’s intention lease provisions in of of his premises. the More to be violation recover apartment over, him maintain the proper requiring to we have held that the question us is precedent good to order. The before quit is a condition a notice to to gave proper notice Moody whether the landlord of suit. v. Winchester the institution (D.C.1974); possession of legal process to take begin the Mgmt. Corp., 321 A.2d Brawner, tenant’s failure to abide supra premises the for the note see also Jones §§ 45- “Posting” by the terms of the lease. D.C.Code n. 9. should 435 A.2d at 56-57 & (1990). -2551(a) (b) resort, Specifically, the & and employed as a last mailing question whether the landlord’s on this is a landlord has to fall back “[w]hen service, copy of a Notice to Cure Viola- strictly comply the tenant he must method of 12, 1993, Tenancy March or Vacate on statutory requirements.” Moody, tion of on the of the Notice followed at 564. supra, 321 A.2d April (suggesting that the term opinion March at 55 tenant’s door on March 9, 1993, in order to read into April complied with the statuto- “then” be and chronology requiring the create an “if-then” ry requirement ancillary posting). trial to be premises, a notice is on the [I]f the fixing rule recognized that the Gantt court copy the shall be mailed first compelling appeared to be termination dates postage prepaid, class the U.S. probate precedent, especially light of the recovered, in premises sought to be the “within 6 months statute’s use of the words person posses- name of the known added.) Nevertheless, (Emphasis unknown, premises, sion of the or if the after.” distinguished from trial Gantt the the court person occupying premis- name of the facts, present what the court case on its es, days of within 3 calendar the date consequences of thought possible were the applying rule the landlord-ten- the Gantt (1990). § D.C.Code relationship. The trial concluded ant trial, argued since the At adopt plaintiffs interpretation “[t]o copy posting the prior landlord mailed the tempo- of this statute could lead to a kind of notice, days not the three follow- within context, anarchy” ral the landlord-tenant technically ing posting, the service was certainty re- depriving adequate tenants his insufficient. The landlord defended ser- exposure to garding an eviction when their vice, ambiguous § 45-1406 arguing that begin. Although judge con- action notice must be regard when the of the action the that on the merits ceded mailed. The contention was and landlord’s case,” “powerful neverthe- had a landlord days” anot fixed that “within three tenant, rul- judgment for the less entered following posting, but can be of three statute ing language of the service point as a of conclusion—a date read premature mailing. landlord’s forbade the occur, pre- not mailing must which the cluding mailing prior post- date II. contention, the land- ing. support of outset, language At the we look at chiefly on lord relied District statute; specifically, the mean whether Gantt, (D.C.1989), in days” 3 calendar as used ing of “within probate this court held that plain ambiguous. trial 45-1406 is unless the barring against an estate claims ambiguity ruled that there was court filed “within 6 months claim was wording and that publication first of notice of the copy the notice must occur of a representative,” of a appointment posting of the notice within three 20-903(a) (1989),1 pre- did However, premises. as evidenced on the person lodging prior from claim vent Gantt, supra, court’s In- appointment representative. jurisdictions cited from other cases stead, six interpreted court “within the landlord, plausible equally that it is the fix a of six months after” to date months to mean that the statute be read ap- that publication of notice of following time, not than later must occur no claim beyond pointment as the See, e.g., days Jensen v. after three be made. could (Iowa 1945) 596, Nelson, N.W.2d 598-99 19 Gantt, por but rea- court considered had willed (ruling

The trial that where testator county statutory provision, “[i]f the the to build a the estate to soned that tion of his completed copy of premises, building the if was notice courthouse death, testator’s years ... within 3 calen- ten shall be mailed within money furnish the where the days posting,” of meant that the estate must the date dar of writing building completed the mail- between antecedent to was posting must be testator); Tanzil will and death of the by the stat- of the ing, interpretation mandated an 220, Casassa, 85 N.E.2d 324 Mass. majority v. also li the word “if’. See ute’s use of Gantt, appeared in a 1981 volume. this statute At of the decision the time

59 (1949) Gantt, the stat language of zoning In because (permitting appeal 221 of a “within” clearly whether ute did not state rendering prior decision to the of that board period in time a fixed intended to mean decision, appeal must where statute said action must be by which an or a deadline within fifteen after the decision be made that it “must court concluded completed, the board); State, v. 31 A.D.2d of Reifke history statute” legislative of the at the look (1968) (holding that 296 N.Y.S.2d Gantt, su properly. interpret the term property owner can make a claim (citing 1122 Sanker Unit pra, 558 A.2d at prior completion of the state the state (D.C.1977)). States, 304, 307 ed says action where statute claim must be Thus, similarly investigate the we should completion of made within six months history in to deter legislative order statute’s state); Ingalls Adams v. the action interpretation of “within” mine the correct Co., Packing 191 P.2d 30 Wash.2d § 45-1406. the context of (1948) (holding of condi that a statement beyond history reaches goods tional sale of can be filed with state enactment, Supreme to the 1982 its delivery goods where auditor before Lindsey, 456 U.S. Court case of Greene says the statement must be filed 1874, 72 L.Ed.2d 249. The 102 S.Ct. delivery goods). within ten was wheth- question for the Court Greene legal on a tenant’s posting of a notice er the resolving question whether the stat- process right tenant’s due door satisfied the substantially ambiguous, ute is we should be alleged an violation of adequate notice of guided by the determination of this court tenancy. The in Greene asserted tenants probate provision that statute’s Gantt notice, many arguing that a lack of actual only presented “within 6 that claims could attempted post- cases where service publication after the date of first months ing, removed from doors before notices were rep- appointment notice of the of a them. The ten- the tenants could retrieve ambiguous as to whether resentative” was way knowing pending ants had no presentation could occur before that such legal “[t]he reasoned action. Court Gantt, supra, publication made. ref- sufficiency must be tested with of notice (“This clearly language at 1122 does not ability people inform to its erence may only whether a claim be filed state in- proceedings that affect their pendency of specified period or within the six-month at 1879. terests.” Id. at S.Ct. be filed earlier but no later than the end simply purpose of period.”). indisputable It is statutory requirement as a condition awith statute in this legislature that enacted the action, help legal it was to precedent to a possible case had intended one of those parties facing meaningfully inform the meanings, it could have worded the statute required of them. Id. action what was clearly directing that result. But the more con- at 1879. The Court reading. appears, as it allows either elementary and fundamen- “[a]n cluded that ambiguity judge recognized the The trial any pro- process in .requirement of due tal explained “judges the statute when he finality is is to be accorded ceeding which differently about this ... it’s unfortunate feel calculated, all the reasonably under judges ruling are in different directions circumstances, parties apprise interested ‘within three calendar issue of what [the and afford them pendency the action unambiguous An statute is days’ requires].” objections.” present their opportunity to by differing interpretations rarely given 449-50, to Greene, supra, 456 U.S. at judges.2 as the statute Just Han- (quoting different Mullane Central at 1877-78 Co., 306, 314, ambig- 70 by court to be deemed this Trust 339 U.S. Gantt was over Bank & (1950) 652, 657, (emphasis uous, statute 94 L.Ed. 865 conclude S.Ct. Greene)). thus Posting alone was ambiguous. added this case also is banc), ambiguity itself by that a debate about argument criticized 2. This is unlike Anderson, ambiguity. 313 in United States v. Cf. ante at 54. dissent evidence (en (1995) U.S.App.D.C. 59 F.3d 1323 5-134, determined to insufficient to meet that Eviction Procedures Act of 1984 be 455-56,102 (March (hereafter 1984) purpose. Id. at 456 U.S. S.Ct. Re- Committee 1880-81. port) restrictions does not discuss time to at all.5 mailing of the notice cure or suggested Court then additional method of service that could be to en- used Report There is evidence Committee that the requirement sure of notice was satis- concerned if landlords citizens were posting employed. fied when was “Particu- copy were much time mail a allowed too larly subject where the matter of the action posting a of that sum- summons after happens mailing also to be the address of the mons, post- a did not tenant who receive defendant, and where service is in- ing enough prepare would not have time effectual, may reasonably notice mail be receiving hearing delayed a mail- after upon provide persons relied interested Thus, ing.6 know that we the Council judicial proceedings.” actual notice of having made aware of tenants’ concern about Id. at at 1880. S.Ct. adequate respond to a landlord’s time The Eviction Act of Bill Procedures apply A summons. similar concern would enacting amended version 5-134— required where landlord’s notice issue this case3 —was intro thirty-day period to cure be- violations year duced in less than March of being with a fore served summons.7 after Greene was decided. We can deduce Certainly, nothing history in the legislative legislation timing from the that the Council had or considered indicates mailing requirement for notice intro it to reason that would have led other as a duced result of the Greene decision. See adopt three-day period a narrow time Estate, Monroe, Frank Emmet Inc. v. Real posting during mailing must occur. which 134, 136 (D.C.1989). 562 A.2d n. 5 Viewed hand, three-day enacting On the other Greene, “if’ the context of used in 45- limit to address the concern that tenants conditional, properly 1406 is construed as following enough have time service which temporal. posting, makes clear Greene being to cure violations before sued itself, insufficient. help comport with the constitu- the statute that, amended make clear thus be effec Greene, requirements tional established tive, by posting must also be accom precedent. as well our as with case-law panied by Although mailing. neither alone Gantt, supra, 558 A.2d at 1123. sufficient, both, together, can consti tute effective service.4 true, majority It is the trial court opinions explain, that landlord-tenant dis- Although provides some Greene informa- adjudicated putes with attention should mailing regarding purpose of tion given compliance the vari- technical clarify requirement generally, it does not procedural evic- ous statutes that control the why the District of the Council of process. Moody tion v. Winchester should occur “within 3 felt that (D.C. Management Corp., posting.” the date of calendar 1974). should, (1990). why reason we There is no The Committee D.C.Code 45-1406 however, Affairs, and con- sacrifice common-sense Regulatory on Consumer and Coun- Columbia, Report Bill of the notice statute stitutional cil ofthe District of proposed requirement §§ that notices and summons Bill D.C.Code 3. This also enacted -1502, governing procedure English Spanish. for service and of summons which service of notice to cure. This be written in both procedure parallels the requirement eventually adopted into along at issue here. Nevertheless, posting, and not the moment mailing, thirty-day begins the must run before a court action required appear in court 6. A can be instituted. being refers to the "notice" Section 45-1406 seven of a summons. being “copy of the notice” 16-1502. added). (emphasis mailed 45-2551(b) (1991). § 7. D.C.Code overwhelming majority report of the con- 5. The testimony regarding the tains information (emphasis 449-50, omit- at 1877-78 hyper-technicality it is not to exalt where ted). may not actual notice recognize by statutory language and compelled comply clearly fails to overcome service of actual claim is made of a failure where no the notice statute. any interpretation of Indeed, has had occasion notice. this court (holding Moody, supra, 321 may, in some in to rule that actual notice it was because that notice was insufficient stances, compliance if prevail over technical being tenant’s door instead slid under the See, e.g., Frank the two are in conflict. fact that the tenant posted, regardless of the Estate, Inc., at supra, 562 A.2d Emmet Real notice). However, actually received the 136-87; Capitol see also Hill E.W. Ontell alleged by tenant prejudice is where no (D.C.1987) Ltd., (up 527 A.2d case here— the method of service—the from holding adequate despite failure notice as service can be accommo- and the method of 45-1406). technically statute, consis- by language of the dated case, Real Estate In the Frank Emmet legisla- law and the statute’s tent with case tenant informed his landlord that he invalidate history, court should not tive Colorado, relocating gave him temporarily Ontell, quit. adequate notice an otherwise there, address and indicated the tenant’s (holding that supra, 527 A.2d at 1295 property live in his intent to return to rented tenant English-speaking commercial Washington. While the tenant was though written even it was was sufficient Colorado, attempted the landlord eviction Spanish not also in English posting of the a summons on door Wash- requires); compare Jones ington property copy of the (D.C.1981) Co., 435 A.2d Brawner Washington In this notice to the address. requirement of (holding “[t]he that because way, comported the landlord with the ex- obviates compliance with the statute strict press statutory requirements for service of practical proving difficulties some however, reasoned, summons. The court quit by slipping delivery,” notice to served strict adherence to the the landlord’s despite actual was insufficient under door of a “wooden manner” that the statute was notice). suggested in This court receipt of Id., legislature did not intend. question particular whether a that the Gantt court, purpose of According to the proper can be form of notice was statute the service of summons to whether the ser- answered with reference that was amended at the same time as the notice statute at ver’s the service of notice to statutory an ascertainable issue undermined actually help ensure that a tenant was Gantt, supra, A.2d at 1123-25. scheme. Thus, where a provided with the summons. case, instant the landlord’s application would not technical posting the first mailing seven before goal, compliance accomplish this technical any scheme said to undermine cannot be comport spirit in which would not Ontell, supra, legislature. intended enacted. The court concluded 16-1502 was Thus, interpret I would 527 A.2d at 1295. Colorado, mailing to where the landlord to, mailing up but not allowing § 45-1406 as tenant to be—and not the rented knew the than, days after later three requires premises, as the statute —would interpretation of the statute Applying this statutorily The court have been sufficient. to the facts of and the doctrine Greene simply make what we think that “[w]e stated ease, that the landlord’s I conclude instant princi- application of that is a commonsense landlord, through the valid. The service was an additional assurance ple [of personal service agent, attempted use of an the facts occurs] notice when and, being unsuc- occasions on four different here.” Id. at 137. cessful, four on each of those posted notice requires, least, very attempts. actual notice is one As the statute At the different copy of the notice to “reason- mailed a given the landlord indication that circumstances, good faith on calculated, shows the tenant. This effort ably under all the apprise pendency part of the landlord parties of the apprise interested Greene, the action. The landlord pendency of supra, 456 U.S. of the action.” will al- process requirements, courts any meaning, nor the due violated neither clear in such cases. ways protect tenants be able mailing oc- spirit, requirement that a days posting, giving the cur within three case, landlord was not instant time to cure before the ten- tenant sufficient attempting providing the tenant to avoid landlord, in ant served a summons. The service of notice not The landlord’s notice. fact, thirty days waited excess of requirements of 45- to the conformed complaint posses- posting last to file his Greene, also, in spirit but 1406 and the copy of sion. fact, tenant. actual notice to the provided the first prior seven have been allowed. landlord’s suit should any way notice did not harm the tenant respectfully dissent. Accordingly, I fact, and, have benefited the tenant

by giving him additional time to cure.8 prob- suggested potential

The trial court in a different set

lem that could arise “within” in

circumstances we read finality. The court point

1406 to denote a where, interpre- posed under this a scenario SIEGEL, Respondent. In re Mark D. tation, mail a notice a landlord could June, post in or worse first and then District the Bar of the A Member of prophylactic mailing to all his yet, initiate a Appeals. Court of of Columbia tenants, any post then months later and No. 94-BG-1655. landlord still wishes to evict. tenants that the case, any Setting the fact that aside Appeals. Court of District of Columbia sufficient reason landlord needs tenant, that the statute alone evict a it is true Sept. 1995. Submitted process of notice insuf- not render this would 5, 1995. Decided Oct. However, require- the constitutional ficient. A clearly would. ments of Greene that occurred prophylactic or

that was certainly not posting would prior

months KING, calculated, all the cir- and Associate “reasonably under Before STEADMAN BELSON, Judge. cumstances, parties Senior apprise Judges, interested Greene, supra, pendency of the action.” (empha- at 1878 456 U.S. ORDER omitted). case if especially the This is sis PER CURIAM. the landlord was can show that the tenant spirit of trying avoid the Greene. simply Report Rec- consideration of On interpret- Therefore, I am not convinced on Professional of the Board ommendation already permit respondent, statute to ing Responsibility the service suspension conse- with a subject the unintended could have of a six-month this ease as a condition proof of fitness allowing a landlord to quence of reinstatement, Siegel, In re see spirit, of the stat- language, not the (D.C.1993),1 suspended for an addi- ute, Guided circumstances. under different implicitly explicitly cre- either have clarified landlord would It true that the provided on the requirement. a date had his intentions ates such thirty day period indicating be- when the notice gan. complaint Nevertheless, file his landlord did not Report and Rec- Board's of the date of the 1. As thirty from the that the until well ommendation, respondent had failed to file an no indication posting, and there is last XI, 14(g), D.C.App. pursuant R. affidavit this case confused notice in reinstatement, hence, the six- purposes dating Although of a notice way. clear yet begun under to run had not month tenants in understand- significantly assist some XI, 16(c). D.C.App. persuaded R. yet legal posture, am not ing their

Case Details

Case Name: Ayers v. Landow

Court Name: District of Columbia Court of Appeals

Date Published: Oct 2, 1995

Citation: 666 A.2d 51

Docket Number: 93-CV-1505

Court Abbreviation: D.C.