PRESIDENTIAL VILLAGE, LLC v. TONYA PERKINS ET AL.
(SC 20043)
Supreme Court of Connecticut
Argued October 9, 2018—officially released June 18, 2019
Robinson, C. J., and Palmer, McDonald, D‘Auria, Mullins and Kahn, Js.
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Syllabus
Pursuant to federal regulation (
The plaintiff landlord brought a summary process action against the defendant tenant, seeking immediate possession of the premises solely on the ground of nonpayment of rent. In 2010, the defendant signed a one year lease with the plaintiff, which owns and manages a housing development in which the rental units are subsidized by the Department of Housing and Urban Development (HUD). Pursuant to the terms of that lease, the defendant remained in the apartment after the first year on a month-to-month basis. In the plaintiff‘s summary process action, which it brought in February, 2015, the plaintiff alleged that, on January 1, 2015, the defendant failed to pay the rent of $1402 then due. Prior to initiating the action, the plaintiff had sent a pretermination notice to the defendant in accordance with HUD regulations. The pretermination notice provided: “[Y]ou failed to pay your rent, in the total rental obligation of [$6189.56]. Your failure to pay such rent constitutes a material noncompliance with the terms of your lease.” The notice further provided: “Your rental obligations will include the delinquent rent, late fees, utilities, legal fees, any other eviction proceeding sundry cost.” The defendant filed a motion to dismiss, claiming that the pretermination notice was defective and, therefore, that the trial court lacked subject matter jurisdiction. The defendant contended, inter alia, that the cure amount of $6189.56 in the pretermination notice varied from the alleged nonpayment of $1402 in rent that formed the basis for termination of the tenancy. The trial court granted the motion to dismiss, concluding that the notice was defective because it contained legally impermissible and factually inaccurate grounds for termination and that the defective notice deprived it of subject matter jurisdiction. The plaintiff appealed to the Appellate Court, which reversed the trial court‘s judgment, concluding that the pretermination notice was not jurisdictionally defective. The Appellate Court reasoned that the trial court improperly incorporated state summary process law in determining that the notice was defective and that the notice should have been assessed solely in relation to the requirements of federal law, specifically, that portion of
Procedural History
Summary process action, brought to the Superior Court in the judicial district of New Haven, Housing Session, where the court, Ecker, J., granted the named defendant‘s motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to the Appellate Court, DiPentima, C. J., and Keller and Prescott, Js., which reversed the trial court‘s judgment and remanded the case for further proceedings, and the named defendant, on the granting of certification, appealed to this court. Reversed; judgment directed.
Amy Eppler-Epstein, with whom was Shelley White, for the appellant (named defendant).
David E. Schancupp, with whom was Hugh D. Hughes, for the appellee (plaintiff).
J.L. Pottenger, Jr., filed a brief for the Jerome N. Frank Legal Services Organization et al. as amici curiae.
Opinion
The defendant tenant, Tonya Perkins,2 appeals, upon our grant of certification, from the Appellate Court‘s judgment reversing the judgment of the trial court dismissing the summary process action initiated by the plaintiff landlord, Presidential Village, LLC. We conclude that the inclusion of undesignated charges for obligations other than rent rendered the notice jurisdictionally defective. Accordingly, we reverse the Appellate Court‘s judgment.
The record reveals the following undisputed facts and procedural history. The plaintiff is a private company that owns and manages Presidential Village, a housing development in New Haven in which the rental units are subsidized by HUD through a project based Section 83 program intended to benefit low income families. Tenants are responsible for a portion of the rent, based on a percentage of their income and other factors; HUD makes monthly payments to the plaintiff to make up the difference between the tenant‘s portion of the rent and the full market rent. If a tenant fails to provide information relevant to the determination of the tenant‘s share of the rent, which may be periodically adjusted as circumstances change, the tenant may be required to pay the market rent.4 See generally United States Dept. of
In March, 2010, the defendant signed a HUD model lease for an apartment in Presidential Village for a term beginning March 2, 2010, and ending February 28, 2011, and thereafter “continu[ing]” for successive terms of one month....” (Emphasis added.) The lease set the defendant‘s rent at $377 per month; it did not indicate the amount of HUD‘s subsidy or the market rate for the unit. The lease provides that the defendant‘s rent may increase (or decrease) for various reasons, including a change in her income.5
In February, 2015, the plaintiff commenced the present summary process action against the defendant, seeking immediate possession of the premises, solely on the ground of nonpayment of rent. The complaint alleged that the defendant‘s monthly rent was $1402, the defendant‘s portion of that rent was $1402,6 and, on January 1, 2015, the defendant failed to pay the rent then due and payable.
The complaint further alleged the procedures undertaken by the plaintiff prior to initiating the action. Specifically, it alleged that, on January 14, 2015, with the January rent still unpaid, the plaintiff sent a pretermination notice to the defendant, in accordance with HUD regulations, regarding her past due rent. It further alleged that, on January 29, 2015, with the rent still unpaid, the plaintiff served a notice to quit on the defendant. Both notices were attached as exhibits to the complaint. Relevant to the present case, the pretermination notice stated as follows:
“You have violated the terms of your lease in that you failed to pay your rent, in
the total rental obligation of $6,189.56. Your failure to pay such rent constitutes a material noncompliance with the terms of your lease. “We hereby notify you that your lease agreement may be subject to termination and an immediate eviction proceeding, initiated by our office. We value our tenants and request that you immediately contact our office, regarding full payment of your rental obligations. Your rental obligations will include the delinquent rent, late fees, utilities, legal fees, and any other eviction proceeding sundry cost.
“You have the right within ten days after receipt of this notice or within ten days after the date following the date this notice was mailed whichever is earlier to discuss the proposed termination of your tenancy with your landlord‘s agent . . . .
“If you remain in the premises on the date specified for termination, we may seek to enforce the termination by bringing judicial action at which time you have a right to present a defense.” (Emphasis added.)
The defendant filed a motion to dismiss the plaintiff‘s summary process complaint on the ground that the pretermination notice was defective and, therefore, that the court lacked subject matter jurisdiction. The alleged defects were (1) a variance in the cure amount requested in the pretermination notice ($6189.56) and the alleged nonpayment that is the basis of the com- plaint ($1402), which contravenes federal laws regulating the pretermination notice, as articulated in the HUD Handbook and state case law, and (2) the notice‘s allegations of violations of leases that are no longer in effect, which violate Connecticut summary process law.
In its opposition to the motion, the plaintiff argued that the pretermination notice was not defective. It asserted that there was nothing defective about a pretermination notice that lists the total financial obligations owed by the defendant to the plaintiff. The plaintiff further contended that a federal pretermination notice fully complies with the law if it includes the specific information supporting the landlord‘s right to termination; a notice does not become defective simply because it contains more information than strictly necessary.
The trial court granted the defendant‘s motion to dismiss. The court determined that the notice was defective because it contained legally impermissible and factually inaccurate grounds for termination. The trial court explained that one purpose of the pretermination notice is to provide the tenant with the opportunity to cure. The present notice did not provide this opportunity because it was misleading in at least two ways. First, the notice informed the defendant that she had to pay $6189.56 in order to prevent eviction when, under state summary process law, payment of a far lesser amount, $2804 (rent for December, 2014, and January, 2015), would have prevented the only eviction that could have been initiated based on that particular notice.8 See
The plaintiff appealed to the Appellate Court. The Appellate Court reversed the judgment, holding that the pretermination notice was not jurisdictionally defective. Presidential Village v. Perkins, supra, 176 Conn. App. 494. The Appellate Court determined that the trial court improperly incorporated state summary process law in determining that the notice was defective. Id., 499-500. The Appellate Court held that the notice must be assessed solely in relation to the requirements of federal law; id., 500; under which a pretermination notice for nonpayment of rent required only “the dollar amount of the balance due on the rent account and the date of such computation . . . .” (Internal quotation marks omitted.) Id., 502, quoting
The Appellate Court rejected the defendant‘s argument that the balance due on the “rent account” was limited to the amount of unpaid rent that supported the nonpayment of rent ground alleged in the complaint. Id., 503-504. It agreed with the plaintiff that, irrespective of whether the notice may have misled the defendant as to the amount needed to cure the violation of the lease agreement, the federal notice requirement is intended only to allow the tenant to prepare a defense against the summary process action, not to afford an opportunity to cure noncompliance and thereby avoid such an action.10 Id. Finally, the Appellate Court noted that, even if it were to agree with the trial court that the inclusion of nonrent charges was relevant, it would view the inclusion of such charges as insufficient to render the pretermination notice “fatally defective.” Id., 506, citing Jefferson Garden Associates v. Greene, 202 Conn. 128, 142, 145, 520 A.2d 173 (1987).
We then granted the defendant‘s petition for certification to appeal to this court. Although the certified questions are framed in relation to whether state summary process law is relevant to the propriety of the federal notice; see Presidential Village, LLC v. Perkins, 327 Conn. 974, 174 A.3d 193 (2017);11 we conclude that, because the notice is jurisdictionally defective even if measured solely by reference to federal law, we need not consider whether, and the extent to which, state law would be relevant.
In reviewing the Appellate Court‘s determination that the trial court improperly granted the defendant‘s motion to dismiss, we are guided by the following well established principles. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court‘s ultimate legal conclusion and resulting [decision to] grant the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) Styslinger v. Brewster Park, LLC, 321 Conn. 312, 316, 138 A.3d 257 (2016).
“There is no doubt that the Superior Court is authorized to hear summary process cases; the Superior Court is authorized to hear all cases except those over which the probate courts have original jurisdiction.
The record establishes that the preconditions required under state summary process law were met; there is no claim to the contrary. The plaintiff timely served the notice to quit alleging nonpayment of rent, and alleged in its complaint that the defendant had failed to pay rent due January 1, 2015, in the amount of $1402. See footnote 8 of this opinion.
Federal law, however, imposes additional preconditions in order to terminate a Section 8 tenancy. The purpose of these requirements is to afford due process and avoid arbitrary or discriminatory termination. See Jefferson Garden Associates v. Greene, supra, 202 Conn. 143-45; see also Anderson v. Denny, 365 F. Supp. 1254, 1260 (W.D. Va. 1973); Green v. Copperstone Ltd. Partnership, 28 Md. App. 498, 516, 346 A.2d 686 (1975); Timber Ridge v. Caldwell, 195 N.C. App. 452, 454, 672 S.E.2d 735 (2009); Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 389–90 (Tex. App. 2006).
Under HUD regulations, a tenancy in a federally subsidized project cannot be terminated in the absence of good cause. See
Service of a valid pretermination notice is a condition precedent to a summary process action. See
The question then is whether the pretermination notice served on the defendant properly states what is due on the “rent account.” The notice sets forth the defendant‘s “rental obligations.” The notice unambiguously equates this term to rent, but then indicates that rental obligations include not only delinquent rent, but also “late fees, utilities, legal fees, and any other eviction proceeding sundry cost.” Although the notice lists various dollar amounts and assigns a specific due date to each amount, it does not indicate whether the amount is derived from any particular obligation, or a combination thereof.
The term “rent account” is not defined in HUD regulations, the HUD Handbook, or the HUD model lease executed in the present case. The plaintiff‘s view, apparently shared by the Appellate Court, is that this term encompasses any financial obligation arising under the lease. The defendant‘s view is that it is limited to rent charges, and only those rent charges that are a proper basis for the eviction action under state summary process law. We agree with the defendant‘s first point and therefore need not reach the second.
We begin with the observation that the common meaning of “rent” is a charge for the use and occupancy of the property. See, e.g., The American Heritage Dictionary of the English Language (5th Ed. 2011) p. 1487; Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2003) p. 1054. This common meaning is consistent with Section 8 law, under which the tenant‘s rent is for a fixed amount, set in relation to the tenant‘s income. See
Further support for a narrow construction of the term rent is found in the federal regulations distinguishing between nonpayment of rent and “any other financial obligation” due under the rental agreement as a ground for termination. See
A narrow construction of the term rent also is consistent with the manner in which rent is defined elsewhere in federal regulations applicable to subsidized housing, albeit not to privately owned property. Regulations applicable to the Public Housing Agency distinguish “[t]enant rent,” defined as “[t]he amount payable monthly by the family as rent to the unit owner“;
Although the Appellate Court dismissed as irrelevant case law that construed HUD regulations applicable to public housing, we view this law as persuasive because it is consistent with every other relevant source and because the HUD provisions governing subsidized housing all serve the same purpose of ensuring affordable housing to low income families. See Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000) (“[a] court must therefore interpret the statute as a symmetrical and coherent regulatory scheme . . . and fit, if possible, all parts
Finally, we observe that a narrow construction of “rent account,” consistent with the meaning of “rent,” furthers the purpose of the specificity requirement of a pretermination notice, to “enable the tenant to prepare a defense . . . .”
If we were to conclude otherwise, we would ignore “that occupancy in a subsidized housing project is in the nature of a welfare entitlement and that tenants in these units are entitled to basic substantive and procedural protections.” “Evictions from Certain Subsidized and HUD-Owned Projects,” 41 Fed. Reg. 43,330, 43,331 (September 30, 1976); see Goldberg v. Kelly, 397 U.S. 254, 261-63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) (recognizing welfare benefits as right, not privilege, entitling beneficiary of welfare benefits to procedural due process protection). These basic due process protections include not only notice of termination of welfare benefits, but “effective notice,” by providing “enough information to understand the basis for the [termination] . . . .” (Citation omitted.) Kapps v. Wing, 404 F.3d 105, 124 (2d Cir. 2005). These protections are especially important because the tenant‘s dispossession results in the loss of the subsidy and, in turn, affordable housing, placing some low income families at risk of homelessness. See
Having determined that in order to comply with
We agree with the amici curiae, groups providing services to low income families in our state,17 that the exclusion of superfluous charges that a tenant would not need to defend against to avoid eviction is especially important in light of the lack of legal sophistication of many recipients of these notices. As the amici point out, “[a] growing body of research confirms that many low income tenants do not understand the procedural complexities of housing court. Many tenants in court face ‘barriers such as low literacy, mental illness, and limited English proficiency.’ [Judiciary Committee, Connecticut General Assembly, Report of the Task Force To Improve Access to Legal Counsel in Civil Matters (December 15, 2016) p. 12]. Research suggests that federal housing aid recipients are also dispropor- tionately hindered by financial illiteracy. See [J. Col- lins], The Impacts of Mandatory Financial Education: Evidence from a Randomized Field Study, 95 J. Econ. Behavior & Org. 146 (2013).”
The plaintiff alternatively argues that any defect in the notice is not jurisdictional. As such, it contends that the defendant should be required to demonstrate prejudice, a burden that it posits the defendant
There is a split of authority in other jurisdictions as to whether a defect in the pretermination notice deprives the court of subject matter jurisdiction, requiring dismissal of the action regardless of prejudice. Compare Riverview Towers Associates v. Jones, 358 N.J. Super. 85, 86, 817 A.2d 324 (App. 2003) (lack of jurisdiction), Fairview Co. v. Idowu, 148 Misc. 2d 17, 22–23, 559 N.Y.S.2d 925 (Civ. 1990) (“fatal” defect), and Hedco, Ltd. v. Blanchette, 763 A.2d 639, 643 (R.I. 2000) (lack of jurisdiction), with Hill v. Paradise Apartments, Inc., 182 Ga. App. 834, 836–37, 357 S.E.2d 288 (1987) (defective notice must cause harm), Fairborn Apartments v. Herman, Docket No. 90 CA 28, 1991 WL 10962, *6 (Ohio App. January 31, 1991) (not jurisdictional), Pheasant Hill Estates Associates v. Milovich, 33 Pa. D. & C.4th 74, 76-77 (Com. Pl. 1996) (same), and Nealy v. Southlawn Palms Apartments, supra, 196 S.W.3d 392 (same).
The plaintiff reads this court‘s decision in Jefferson Garden Associates v. Greene, supra, 202 Conn. 128, as falling into the latter camp. It is mistaken. In that case, this court stated that, when evaluating the propriety of a federal pretermination notice, “not every deviation from the strict requirements of either [state] statutes or [federal] regulations warrants dismissal of an action for summary process. When good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent.” Id., 145. These statements were aimed at the question of whether there is a cognizable defect, not whether a cognizable defect is jurisdictional. Tellingly, this court treated the federal regulation under the same rubric as state statutes governing summary process. See id. (citing as support Southland Corp. v. Vernon, 1 Conn. App. 439, 452–53, 473 A.2d 318 [1984], which applied same hypertechnical standard to notice to quit). It is well settled that a notice to quit that is defective under our law deprives the court of subject matter jurisdiction over the summary process action. See Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007).
We recognize that certain inaccuracies in a pretermination notice may go to the merits and should be addressed at trial (for example, if the amount of unpaid rent for the period at issue is incorrect, or, as is claimed in the present case, overstates the tenant‘s share of the rent). However, the notice must be sufficiently accurate for the tenant to understand and defend against the allegations. If a notice is inaccurate to the point that a tenant‘s ability to prepare a defense against the alleged reason for termination is impaired, the notice is not effective.
For the reasons previously articulated, the pretermination notice in the present case cannot be said to reflect a hypertechnical deviation from the regulatory requirements. See Escalera v. New York City Housing Authority, 425 F.2d 853, 864 (2d Cir.) (“even small charges can have great impact on the budgets of public housing tenants, who are by hypothesis below a certain economic level“), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 21 L. Ed. 2d 91 (1970). As such, the Appellate Court improperly concluded that the trial court‘s judgment of dismissal must be reversed.
In light of this conclusion, we need not reach the defendant‘s claim that the notice also was jurisdictionally defective because
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to render judgment affirming the judgment of the trial court.
In this opinion the other justices concurred.