*1 сonclusion, petition. Despite reaching TIPPETT, for the James Trustee
however, position in a this court Trust of James Revocable peti- A.E.’s grant order the trial court Appellant, Tippett, A.E. failed adoption tion for because from the trial court’s order and appeal passed since years because several DALY, Appellee. Gregory that the relation- the trial court ordered terminated. A.E. T.E. be ship between No. 06-CV-1327. no Perhaps longer A.E. is interested of Appeals. District of Columbia Court is, T.E.; if she be adopting she even judicata precluded by principles of res 1,May Argued seeking passage so. to do Given 5, 2009. Decided Feb. time, child’s best inter- may be est that she remain with T.W.M. Never-
theless, Appellants prejudiced be- were misapplied court’s decision
cause trial designation of a relating to their law child, adoption and the
custodian their parental rights. their
decree terminated adoption
The matter of T.E.’s must reasons, it is: For
considered anew. these judg- that the trial court’s
ORDERED terminating parental rights, denying
ment petition and adoption granting
A.E.’s petition is reversed and adoption
T.W.M.’s court is remanded to the trial
the case It is to vacate the order.
with instructions the trial ORDERED
FURTHER the ne- issue an order to reinstate
court
glect determine anew whether case and adoption S.E. consent to the
T.B. and withholding are they
T.W.M. whether the best interest against
their consent
T.E.
So ordered. *2 personal
vacate for occupancy by use and accepting rent for a term that began new after expired. the notice We reverse judgment first and affirm the second. *3 I. The Factual and Procedural
Background The Tippett revocable trust James single-family dwelling owns a Grego- (“the tenant”) ry Daly has ap- rented for proximately thirty years. 28, April On 2001, TOPA, see D.C.Code pursuant (2001), 42-3404.03 owner mailed offer of sale which the tenant received on April 30.2 The tenant testified that he mailed a statement of the own- Battino, R. Washington, ap- Moms May er on a copy and filed pellant. Department of Regulatory Consumer and Blumenthal, Carol S. for appellee. (“DCRA”) Affairs day. the same The testified, however, owner that he did not WASHINGTON, Before Judge, Chief receive the statement of interest until June FISHER, and RUIZ and Associate 27, 2001, 2.3 July On the tenant and his Judges. $20,000 partner placed “pur- escrow as a chase contract deposit” July and on FISHER, Associate Judge: tenant purchase hand-delivered a contract Tippett appeals James from judgments sign owner. The owner did not following entered a consolidated trial of his deposit and the remained in es- possession suit for of a dwelling and his at the time crow of trial. tenant’s suit for breach of contract.1 The Meanwhile, 17, 2001, 1) May on the owner trial court held the tenant had ninety-day served the tenant with a timely rights invoked his under the Tenant the premises by September vacate Opportunity (“TOPA”), to Purchase Act affidavit, 2001. In §§ the attached D.C.Code 42-3404.02 to owner (2001), stated that he intended to by providing occupy statement of and use written premises as his thirty days receiving dwelling. interest within own The see sale, owner’s offer of owner later testified that he intended to 2) 42.3404.09(1) (2001); and the move into the house he while renovated ninety-day Bethesda, Maryland, had waived notice to and his home in trial, Although dwelling parties stipulated 1. owned revo- 3.Prior Tippett, cable trust of Jаmes we shall refer to tenant "submitted a statement of interest to 18, 2001,” Tippett Mr. May as the owner or landlord. dated [the owner] but that receipt by disput- "the date of [the owner] is However, produce ed.” 2. failed to This offer of sale is not contained in the any dispute appeal, parties record evidence at trial to the owner’s but the do not dis- pute testimony that he received that was mailed to the statement on applies. tenant or that TOPA June 2. the tenant an “give must first changed property he had explain he did not whether selling property. mind about the accommoda- opportunity represent and terms which price tion at a occupy continued to The tеnant § 42- of sale.” D.C.Code a bona fide offer expired on after the notice to vacate house (2001). 3404.02(a) require- acknowl- fulfill this September To least that he received rent for at edged each ten- ment, “provide must the owner and did expired one month after the notice copy a written Mayor ant and at time that he wanted not indicate still § 42-3404.03 offer of sale....” September On the tenant to vacate. tenant(s) for the The time allowed possession filed a suit for number of upon the respond depends expiration of the notice based For housing in the accommodation. units 29, 2002, filed *4 the tenant April vacate. On “[u]pon receipt of dwelling, a single-family per- comрlaint seeking damages, specific a ..., from the owner offer of sale a written alleged of the contract for sale of formance days provide have 30 the tenant shall ordering property, injunction Mayor with written the owner and comply TOPA. the owner § 42- interest.” D.C.Code statement of trial, Following a consolidated bench 3404.09(1) (2001). pro- If the tenant “has “negotiate trial court directed the owner to of interest vided a written statement faith for the sale good tenant] with [the (1) of 42- paragraph [§ accordance with court found property. of’ the The first 3404.09],” additional must allow the owner timely provided tenant had sale, a contract of negotiation time for May mailing statement of interest on to, and, for settle- agreed if a contract is thirty-day 18. The court calculated the (3) period response 42-3404.09(2), for from the date the own- § ment. D.C.Code sale, April er mailed the offer of added mailing
three for and an additional the trial court argues The owner day Sunday, April because 29 was a see calculating the time within erred both in (2001), Super. R. and deter- Ct. Civ. required provide which the tenant was mined that the had to be provid- statement in holding of interest and his statement Moreover, ed June 2001. the court “provided” held that the had state- “acceptance tenant’s that the tenant mailing complete upon sale was May he mailed it on 18. ment when May the statement of interest оn wisely concedes error first tenant 2001[,]” and that the statement that, “[u]pon states point. The statute timely regardless was therefore when sale, offer of receipt” of the written (Bench actually it. provide thirty days tenant shall have (citing at 4 Op. Order Restatement of interest. D.C.Code statement written 68(a) (1981).) § (Second) of Contracts 42-3404.09(1) (2001). The tenant testi- § pos- complaint The court dismissed the trial, fied, at that he undisputed and was session, finding that the owner had waived Thus, the April offer on received the rent after by accepting the notice to vacate (until thirty days April tenant had expired. the notice 30) of interest. a statement May provide
II. The
of Interest
Statement
calculating
provision for
TOPA has its own
§ 42-3405.02
see D.C.Code
periods,
TOPA, an
of a rental hous-
Under
(2001),4
relying
erred
and the trial court
to sell the
ing accommodation who wishes
(2001)
(entitled
a tíme
periods”) provides: "If
"Time
§
4. D.C.Code
42-3405.02
(2001)
on a rule
procedure
of civil
to extend the with.” See D.C.Code
42-3401.03
(definitions
prescribed by
section);
statute. See
DCMR 4799.1
(2001) (“If
(1991) (same). Thus,
chapter
appropriate
this
con-
it is
provision
dictionary
flicts with another
us to look to
gen-
of law of
definitions to de-
applicability,
ordinary
eral
termine the
provisions
of these
control.”);
Twenty-First
words. 1618
chapter
Super.
Street Ten-
Ct. Civ. R. 1
(2001) (the
Ass’n, Inc.,
ants’
Neither TOPA nor the related Practical considerations confirm our regulations “provide define the term ... reading Permitting of the statute. running chapter 'paid' receipt payment under this ends on a Satur- term ... means of day, Sunday, legal holiday, or it is extended by ten-day statutory within the claimant day Saturday, until the next limit”; check was mailed within ten 2001, Sunday, legal May holiday.” days but received after time limit had ex- Wednesday, was a so this statute does not R, pired); United ex B & States rel. Inc. oрerate thirty-day period to extend under Construction, F.Supp.2d Donald Lane presented the circumstances here. (D.Del.1998) (interpreting the term "give” put in the Act Miller to mean "to into Telecommunications, Inc. v. Orius Dis Cf. use”; possession of another for his notice Servs., Dep't Employment trict Columbia of of received, mailed, merely within must (D.C.2004) (upholding as ninety days). reasonable Director's conclusion "that soon by generally is effective “as his purchase to invoke without put possession, mail of the offeree’s placing a statement of interest in the out the of- thirtieth ever reaches day regard would create uncer- whether ...” Restatement tainty impose significant additional feror. (Seсond) of CON- TRACTS, 63(a) owner, have seen no have to We burden on the who would statute, decide, that intended to guidance legislature indication without rule im- concluding before that this common long incorporate how to wait law analogy responded. plication, In this and we do not find the tenant had not case, of so com- example, apparently aspect took two one contract law interpreta- that it should alter our Requir- pelling full weeks for the mail arrive. further, for submit- ing the to choose of the deadline between of interest. Orius potentially costly, delay ting the sale or rede- a statement Cf. Telecommunications, velopment property possibly Inc. v. District Sеrvs., Dep’t Employment TOPA would none of Columbia violating serve (D.C.2004) (“[W]e Act’s can- salutary purposes, see D.C.Code (2001 (stating rule because its Supp.) & 2008 not endorse mailbox purposes legislation), of the of rele- application ignores and we the existence in- statutory language nullify seen no vant and would evidence Thus, holding tended the director’s in- this result.6 adhere to the essential we plain hold date under terpretation statute and relevant that of the claim- “provide receipt the tenant must the statute is [owner] ant.”). with” a ensur- statement days.7 him thirty that it reaches Indeed, involving think cases arguments contrary option The tenant’s intent to exercise an “It is unpersuasive. urges pertinent helpful. аre He inter- at us to are more *6 pose majority “mailbox of that notice to exer- acceptance rule” that least the rule history dwellings. Housing legislative family 6. The of Conversion TOPA is consistent Rental limiting with the view that time for the Sale Act of 1980 Extension Amendment 1988, 2(g), § D.C. respond tenant was reduce Act of Law 7-154 35 to intended to 5715, (1988); D.C.Reg. initially 5716 TOPA’sburden on owners. As enact- Council of the ed, require did not in accom- TOPA tenants of Columbia on Consumer District Committee 7-462, Regulatory up Report of to four their modations units submit Bill Affairs, on Housing any pe- specified statement of interest within and Sale Act The "Rental Conversion 1988," at 1980 Extension Amendment Act Housing riod of time. Rental Conversion of of 1988). 27, (June 1980, 3-86, 409-10, 4-5 §§ Sale Law Act of D.C. 2975, (1980). (Tide D.C.Reg. IV 27 2993-94 Opportuni- of this known We do not consider here situation Act is Tenant mail, ty pick up is absent fails to to Purchase Act of 1980. See Columbia days, time- Ltd. or otherwise frustrates Ass’n v. for several Tenants' Columbia Plaza Plaza 329, See, (D.C.2005)). P’ship, ly receipt e.g., notice. Cities Service A.2d 332 The of 869 Boston, limit the Co. v. National Shawmut Bank Council later amended statute to Oil of 108, 104, n. housing 172 105 1 which the 342 Mass. N.E.2d tenants of (1961) ("Unavailability party be noti- could of two to units accommodation four Housing exer- respond [that of fied affect rule to an offer sale. Rental only upon re- option an is effective Sale Act of Amendments cise Conversion and 1980 R, 5-38, 1983, Inc. ceipt].”; ex rel. B & v. Act Law United States and Extension of D.C. 217, Construction, 2(k), 4866, F.Supp.2d 19 D.C.Reg. § Lane 4872 Dоnald 30 (D.Del.1998)) (referring excep- thirty day period at was later 225 n. 15 issue here intentionally renewing "the receiver avoids legislation tion when opponents added of after notice”). single receipt of for requested TOPA a similar limitation 612
cise an option only upon is effective its (application registration as a tenant receipt by party to be notified unless organization). Nothing we in this say parties agreed.” otherwise Cities Ser- opinion precludes sending the tenant from Bank, vice Oil Co. v. National Shawmut by his statement of interest He mail. (1961) 108, 104, 342 Mass. 172 N.E.2d 105 simply has to make sure that the owner (option purchase during term of lease thirty-day period. receives within the 31; ending on August deposit letter and words, other In who elects 31, mailed on August Sep- but on received delay use the mail the risk of accepts 1, tember not timely option). did exercise receipt. Cf. Accord, Smith Hevro Realty Corp., 199 (2001) (relating to accommodations with (“Un- (1986) 980, Conn. 507 A.2d 984 units; five or more “the delivery of the less parties agreed to the con- application registration hand or by trary, acceptance under option an days first class mail shall be within 30 actually not effective until it is received offer”). receipt of a valid offeror.”); Frankson, Salminen v. (1976) 309 Minn. 245 839 N.W.2d Finally, while we recognize (written option, exercise of mailed the Council ambiguities intended date option expired and received two the statute bе resolved in favor thereafter, not timely). was See Restate- strengthening tenants’ rights, see (SECOND) 63(b) (1981) CONTRACTS ment OF (2001); Wilson (“an acceptance option under an contract is Ass’n, Inc. v. Mel Courts Tenants 523-525 operative until the offer- Street, LLC, lon 294 or”). Locke, generally George See A. An- 2007); Snyder, Allman v. notation, Timeliness Notice Exercise (D.C.2005), “may 1166 rewrite Option Realty, to Purchase 87 A.L.R.3d stat ambiguity statute create where the (1978); see Pennsylvania Acade- utory unambiguous scheme is in establish Grant, my Fine Arts v. Pa.Super. ing meaning of its terms.” 1618 Twen (1991) (notice A.2d mailed to Ass’n, Inc., ty-First Street Tenants’ lessor exercising before deadline for option (citation at and internal quota to purchase, deadline, but received after omitted). tions is true оf any guide “[A]s was nevertheless of op- effective exercise construction, only [this rule] rule”).8 tion under “mailbox resolving ambigui as an serves aid for *7 persuaded ty; beget Nor is not to be used to one.” by are we the fact that States, some of 364 provisions expressly TOPA Callanan United U.S. allow (or (1961) See, 596, mail. 81 L.Ed.2d 312 require) by notice to be sent S.Ct. (offer (2001) (footnote omitted). e.g., § D.C.Code 42-3404.03 of And the fact that the 42-3404.11(1) (or (2001) sale); § parties judges) disagree D.C.Code about (notice argument ceiling), § 8. At oral counsel cited to tenant's increase rent 4300.1 vacate). regulations housing a rental section of the to The terms “serve” or “service” provides by regulations mail applying shall are not found in to "[s]ervice thоse complete upon mailing.” housing. be 14 DCMR the sale of rental residential See Moreover, art, (1991). § §§ “Service” term of 3911.5 is a DCMR 4711.1-4711.13 however, provision ... applies "provide and this to docu- the term chose "serve,” required pre- to ments be "served” under the rent- with” rather than and we must See, housing al regulations. e.g., 14 DCMR that the was In sume distinction intentional. C.L.M., (not- (motion (D.C.2001) § a 4014.1 for continuance of sched- re hearing interpreted uled for an time to file "that a so as or extension of statute should 4204.10(c) (certificate word”). pleading), give every a of elec- to effect to of rental meaning possession not render it faith to recover of the statute does per- immediate ambiguous. Lumpkins v. CSL Lock- person’s unit for Cf. smith, LLC, 418, 422 a occupancy dwelling.” use and sonal (“Whether 42-3505.01(d) (2001 ambiguous a is a & 2008 not question ambigu- A contract is law. to seeking The Supp.). recover merely parties disagree ous because the this subsection must possession under ” (citation omitted)).9 over its .... ninety-day a notice serve the tenant with statute, in the Having ambiguity found no posses- an action for filing to vacate before meaning. apply plain its however, recognized, sion. Id. We have acknowledged The that he re- landlord, on April
ceived offer of sale a receipt owner’s “the of rent after 2001, and no presented he evidence to quit, term notice new or testimony that dispute the he did owner’s thereof, part amounts to a waiver his not tenant’s statement of inter- receive the right possession to demand un- [or her] 2, 2001, thirty est until more than June unless it is clear from der notice” days 3, supra. According- later. See note that, by accepting all the circumstances ly, “provide” the tenant did tenant, from a rent holdover land- “with” his statement did an “ex- lord intend waive thirty days the offer receiving of sale. pressed intention to enforce lease.” timely Because the tenant did not invoke Thurston, Habib v. right TOPA, under (alteration (citations 1985) original) in trial court in ordering erred omitted). negotiate a contract for sale to the ten- may “accept[ ] landlord ant.10 prejudice by expressly rent without re III. The Notice tо Vacate serving the to enforce the notice to right quit.” Id. at the landlord ac 7. Where next argues The owner/landlord reserving cepts future rent without finding in trial court erred that he however, notice, “the to enforce ninety-day waived the vacate for rebutting ha[s] landlord the burden personal occupancy use and when he ac implication that, receiving funds ten cepted expired. rent after the notice “A rent, dered as he intended person natural a freehold future waive with termination of lease.” Id. Whether the possession rental unit of a recover accept rental unit seeks the rent for person good landlord intended dissenting colleague ambiguity 9. Our mail within 45 finds be- hаnd first class (2001) words, cause receipt valid offer.” In other equate "provide" seems "submit” and within the the mail must be delivered statuto- Webster "submit” as “to send or com- defines Thus, ry deadline. context is consideration, study, mit for or decision.” dictionary fully definition consistent with the *8 However, also defines Webster "submit” “provide.” present for "to or make available use or study,” essentially synonymous with which is Because in the owner's favor on 10. we rule "provide" the definition of discussed above. ground, need address his alterna- we not Dictionary Third New International Webster’s argument court erred in tive that the trial (2002). that We note as well D.C.Code copy finding a that tenant filed (2001), 42-3404.11(1)(C) requires, with re- (the Mayor's with DCRA statement five spect to with or more accommodations requires. See representative), as the statute units, application that the tenants “deliver registration Mayor and for occupancy French, (D.C. after the notice expired and to tle v. 71 A.2d 535-36 1950) waive notice to vacate questions are (upholding a verdict favor fact, and we will not disturb the trial landlord where landlord first tried to re court’s findings they unless “plainly rent, are turn not money did cash new orders wrong without evidentiary support.” tenant, tendered and continued to Id. possession), acceptance demand or that his inadvertent, of the rent was Rhodes v. controlling case, Habib is here. In that cf. States, United 251-52 the landlord a quit served notice to or cure 1973) (uрholding finding that receipt of 30, citing November overcrowding in rent not did demonstrate intent to waive breach of the lease. Id. at 4. The tenant quit notice to where institutional landlord vacate, did not but on December 1 ten- many tenants through collected rent money dered a order for December rent agent); Swagart, Rubenstein v. which the deposit- landlord endorsed and (upholding judgment ed. Id. The landlord then posses- sued for for landlord personally who did not see sion on December 3. Id. We affirmed the rent check and “recalled” it he when real trial holding court’s that the landlord bank; ized it had been taken to the check quit by waived notice to accepting the was never credited to rent, his аccount or noting that the lease did not contain tenant). charged to While the landlord provision stating acceptance of rent this case did file an action possession for for a after expiration of such notice within two weeks after the notice quit not would be considered a waiver. More- expired, that over, distinguish does not this case landlord had accepted money Habib, upheld where we finding order disclaiming without an intent ac- cept it as December landlord had waived the notice expressly rent or although he reserving possession just sued for enforce the notice. three Id. at after the expired. 7. 517 A.2d at finding 7. The trial court’s here that the Here, the landlord admitted that landlord accepting waived notice he rent for at least one month rent “plainly was not wrong or without after the expired notice to vacate and that evidentiary support.” Id. at -See 7.11 he not tell did the tenant when he accepted 17-305(a) (2001). the rent that he still intended enforce the notice to vacate. The landlord did IV. Conclusion
present evidence of a lease provision which that acceptance stated of rent expira after The trial judgment directing court’s tion of a notice to vacate would not waive negotiate owner to with the tenant for sale id.; the notice. See In re Wil-Low cf. of the dwelling is reversed and that case is Inc., (2d Cafeterias, 95 F.2d Cir. entry dismissing remanded for of an order 1938) (finding breach of lease not waived the tenant’s complaint. judgment provided where lease acceptance denying trial court the landlord’s com- waiver). rent would constitute Nor plaint possession is affirmed. did the landlord demonstrate that he re jected rent, the tenant’s tender of Lit- So ordered. cf. trust, person” Because affirm the trial court’s conclu- cable was a "natural who could possession personal sion that the landlord waived the notice to seek occu- use and *9 term, by accepting pancy vacate rent for a new under the statute. D.C.Code 42- owner, 3505.01(d) (2001 need Supp.). not address whether thе a revo- & 2008 and accord full force harmonize and
RUIZ, dissenting in will Judge, Associate ren- provisions, all of its without effect to part: In addi- any meaningless.”). dering part majority affirming the agree I with the tion, provides itself the TOPA statute the trial court’s dismissal of the owner’s it is to be guidance how court with re- possession, disagree with suit that specifically directs interpreted, and requiring versing judge’s the trial order ... a court ambiguity by “resolution of the tenant as negotiate to with owner strengthening the end of toward [be] to required by Opportunity the Tenant organiza- or tenant legal rights of tenants (“TOPA”), §§ 42- Purchase Act D.C.Code permissible extent tions to the maximum (2001). Specifically, 3401.01 to 42-8404.13 § 42-3405.11 under law.” D.C.Code that, to agree I do not the conclusion with effective, expression of in- the tenant’s negoti- Here, the same purchase triggers legislature terest to that used by the period “provide” ation must be received own- in the next section word 42-3404.10(1) (2001), I period set in the statute. statute, er within analysis, periods that a contextual similarly believe sets out purpose letter and of TOPA lead to of interest from expressions offers to and that only mailing conclusion tenants, respect to accommoda- but with statutory period required preserve is units, opposed to four as tions with two rights the tenants’ under TOPA. at issue in this single family residence section, case.1 In that phrase “upon The statute uses the re- “submit.” See id. equates “provide” with an offer of from the ceipt” of sale receipt of a sale (“Upon written trigger 30-day for tenants to ..., group of tenants give purchase notice of interest days provide acting jointly shall have property. Mayor and the a written the owner (2001). Thus, legisla- clear that the Following of interest. statement ture could have if it language used similar acting jointly if the tenants period, intended that statement failed to submit a written statement also must be “received” the owner with- interest, tenant shall have an individual days. so, however, It did not do inter- days provide a statement of seven ambiguous used instead the more word (empha- Mayor.” and the est to the owner “provide.” added)). sis In considering statutory language, “plain majority considers this
judicial legislative is tо intent task divine dictionary meaning” case and relies on precise give it effect. a word’s Where synonymous with “provide” uncertain, meaning is its use elsewhere From that “supply for use” and “furnish.” legisla light can shed statute definition, the tenant’s it reasons that for Jacoby, intent. See In re ture’s to be of (D.C.2008)(“[T]he purchase of interest to expression 1193, 1198 familiar max use, must have received with- counsels statutory interpretation im of But the same whole, and, statutory period. in the to consider the statute as a us “submit”—which dictionary defines interpretation if discern an possible, days of receiv- within fifteen pressing in the from the one 1. That section differs or, failing joint offer of sale only the owner's in that it creates thе appeal before us action, express jointly any tenant has seven act possibility the tenants first individually. purchase an interest to ex- their accommodations *10 616
TOPA equates “provide” usually statute with box rule” held to inapplicable is —as contracts, and, consideration, option majority “to send as the or commit notes, acceptance operative only is when study or decision.” Webster’s Thied New Dictionary (2002). option exercise of the is See received. 2277 International (Second) reason, For that to dictionary resort the Restatement of Contracts 63(b) (1981). § Although by establishing a does not question suffice to answer the in specific time in a period which tenant this case. express in response interest to the owner’s reasonable, Assuming, as seems that the sale, TOPA offer of the scheme some bears legislature “provide” intended to similarity contract, superficial option to an same meaning in the two sections of the analogy closer scrutiny reveals that the is statute dealing right tenants’ to pur- with misguided. option an An contract is chase single family dwellings and buildings that, agreed-upon exchange in the words units, with two to four TOPA should be Restatement, promisor’s “limits the interpreted fully to tenants to allow benefit § power an to revoke offer.” Id. at the time period “provide” which key “The option distinction between an interest, or “submit” a statement wheth- purсhase contract of an and a sale is that fifteen, er it thirty, be days.2 seven option impose does not a obli binding Had the meant it otherwise gation complete purchase.” Am. it would did in have said—as connection Combustion, Minority Oppor Inc. Bus. with the section statutory concerning ac- Comm’n, tunity 667 commodations five or more with units 1982). See City also Ammerman v. Stores where response must be from a tenant Co., 325, 329, F.2d U.S.App.D.C. organization, individual tenants —that (1968) (“An option is more than an the expression purchase offer ... it a is itself contract and is not must be ... by hand or “deliver[ed] be confused the bilateral first class the prescribed peri- mail” within it gives optionee power (2001). od. D.C.Code TOPA, other bring being.”). into Therеfore, “provide” viewing word hand, imposes statutory obligation on context, its statutory legislature’s and the property first offer for sale unequivocal preference rights tenants’ offering the tenant general before to the strengthened “to maximum extent public, corresponding obligation and a permissible law,” under timely notify tenant to if the (2001), I would hold that ap- tenant intends to the property. pellant validly exercised his under TOPA, Under the owner’s offer of sale “provided” timely TOPA because he not an held option contract must be statement of owner mail- open, in exchange valuable consider thirty receiving tenant, during pre ation from the offer of sale. statutory period. scribed See Hack Constr., I majority’s analogy ney Corp., believe v. Morelite D.C. rights (finding the tenants’ under TOPA to an op- A.2d 1067-68 “(1) ... option appellee up. contract does not hold The “mail- contract where 17-234, 2(b), legislature recently D.C.Reg. 2. The amended TOPA to Law 9014- means that in period allow the time which a tenant must This cases first, upon respond the tenant receives the amend- to commence tenant’s re- sale, ceipt Mayor’s effectively or the ment extends the the offer of re- same, ceipt may respond. is later." in which "whichever D.C. *11 a promise keep open may made the an offer revoke offer of sale even within disputed prior sell the property statutory period, ‘for a fixed or the time to accep- (2) Therefore, period reasonable of time’ ... no tance. there is reason for promise ‘given abandoning was for valuable the rule” that consider- “mailbox nor- (3) sale, ation’ and that both the property mally applies contracts for as there and the term option of the is in of option offered were the case contracts. in described particularity....”). sufficient majority by The rule articulated the that contract, option Unlike an TOPA does acceptance the must be tenant’s preclude the the revoking to be would the owner effective be during statutory offer the period— time certainty in providing beneficial the essence of an contract.3 option owner, and could be considered—as the why
The reason
the
majority
policy
“mailbox rule” is
does—that
the better
is
applied
to an
the
option
require
contract
is
therefore to
a tenant
that
deliver
for a “dependable
need
basis for decision the statement of interest
the
statu-
option.”
whether
exercise the
tory
period.
But the statute does not
Restate-
f. permit
interpretation
63 cmt.
if it
(Second)
is at the
ment
of Contracts
Thus, whereas in the usual
expense
contract for
the
right
of
tenant’s
because the
sale the mailbox rule allocates
of
legislative
the risk
command to the court is that
or delаy
loss
in delivering an
acceptance
any ambiguity be resolved
favor of
on the offeror to
rights
allow the fact
the
“strengthening
legal
the
of tenants
prior
offer
acceptance,
organizations
revoked
or
maximum
is no
there
similar reason to shift the risk
extent permissible under law.” D.C.Code
option
(2001).4
in an
contract where the offeror’s
In a recent amend-
ment,
revoke
offer
already
is
re-
has demonstrated its
short, although
stricted
contract.
In
to afford
only
intention
the tenant not
TOPA
scheme
option
statutory
and
contracts
of
plenary
period,
use
both share the
of having
implicit
element
even
specific
an
extension. See supra,
periods in
which
offeree has to note 2.
of
Resolution
notify acceptance
statute,
or exercise of
option,
“provide”
word
as used in
therefore,
under the TOPA
ten-
allowing
statute the tenant
must favor
tenants the
consideration,
no
statutory period
ders
valuable
full
required
to consider and re-
contract,
valid option
I
spond
to the owner’s offer.
therefore
TOPA,
cases,
many
compet-
In
situations under
the owner’s
4. Unlike in contract
expression
offer
tenant’s
parties
interpretations of interested
do
purchase may simply
initiate a
ne
of
not suffice to render a contract’s terms am-
gotiation,
may may
or
not result in a
biguous,
differing
interpreta-
However,
contract of sаle.
because TOPA
impartial
judges
signify
does
tions of
requires that the owner make a firm
of
offer
capable
meaning.
one
terms are
of more than
tenant,
might
to a
sale
there
be cases where
Bank,
Dep’t
Sav.
v. Wis.
See Lincoln
S.A.
application of
ren
principles of contract law
Revenue,
215 Wis.2d
573 N.W.2d
expression
ders the
an
tenant’s
C.J.,
(1998) (Abrahamson,
concurring)
acceptance of the
of sale
that creates
("[W]hen
judges disagree
courts or
about sale.
enforceable contract of
See
S St.
law,
is,
interpretation
of a
the law
defini-
Ass’n,
Battle,
Tenants'
Inc. v. Estate
being
capable
understood in two or
case,
In this
because
by reasonably
senses
well-in-
more different
record does not
contain
owner’s offer
sale,
interest,
persons....”).
only
expression
formed
tenant’s
binding
inadequate to
whether
determine
was created.
oppositions to the recom-
dissent,
no
exceptions
affirm
trial court’s
would
mendation,
appearing
and it further
TOPA
judgment enforcing
tenant’s
file the affidavit
respondent has failed to
rights.
XI,
14(g),
required
Bar R.
it is
by D.C.
*12
L. Gilbert
respondent,
ORDERED
Farr,
hereby
See In
be and
is disbarred.
(D.C.2008)
1165,
re
Dobbyn,
(court
discipline of dis-
reciprocal
imposed
misappropriation
for
funds
barment
participate
and
respondent
failed
FARR, Respondent.
In re L. Gilbert
Blum,
default);
In re
imposed
sanction
08-BG-108.
No.
(disbarment
on Professional thereto, to be appearing and there
Sheet