James TIPPETT, Trustee for the Revocable Trust of James Tippett, Appellant, v. Gregory DALY, Appellee.
No. 06-CV-1327.
District of Columbia Court of Appeals.
Argued En Banc Nov. 10, 2009. Decided Dec. 30, 2010.
10 A.3d 1123
Carol S. Blumenthal, for appellee.
Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges.
FISHER, Associate Judge:
James Tippett appeals from judgments entered following a consolidated trial of his suit for possession of a dwelling and his tenant‘s suit for breach of contract. The trial court held (1) that the tenant had timely invoked his rights under the Tenant Opportunity to Purchase Act (“TOPA“),
I. The Factual and Procedural Background
The revocable trust of James Tippett owns a single-family dwelling which Gregory Daly (“the tenant“) has rented for more than thirty years. On April 28, 2001, pursuant to TOPA, see
On April 29, 2002, the tenant filed a complaint seeking damages, specific performance of the alleged contract for sale of the property, and an injunction ordering the owner to comply with TOPA. Following a bench trial, the trial court directed the owner to “negotiate with [the tenant] in good faith for the sale of” the property. The court first found that the tenant had timely provided his statement of interest by mailing it on May 18. The court calculated the thirty-day period for response from the date the owner mailed the offer of sale, April 28, added three days for mailing and an additional day because April 29 was a Sunday, see Super. Ct. Civ. R. 6 (2001), and determined that the statement had to be provided by June 3, 2001. Moreover, the court held that the tenant‘s “acceptance of the offer of sale was complete upon mailing the statement of interest on May 18, 2001[,]” and that the statement of interest was therefore timely regardless of when the owner actually received it. (Bench Order and Op. at 4 (citing RESTATEMENT (SECOND) OF CONTRACTS § 63(a) (1981).))
II. Was the Statement of Interest Timely Provided?
Under TOPA, an owner of a rental housing accommodation who wishes to sell the property must first “give the tenant an opportunity to purchase the accommodation at a price and terms which represent a bona fide offer of sale.”
A. May 30 Was the Deadline.
The owner argues that the trial court erred both in calculating the time within which the tenant was required to provide his statement of interest and in holding that the tenant had “provided” that statement when he mailed it on May 18. The tenant wisely concedes error on the first point. The statute states that, “[u]pon receipt” of the written offer of sale, the tenant shall have thirty days to provide a written statement of interest.
B. What Does the Statute Require?
The remaining question then is whether the tenant “provide[d] the owner with” the statement of interest when he placed it in the mail on May 18 or whether, as the owner contends, the tenant did not “provide [him] with” the statement until he received it on June 2. The meaning of the term “provide ... with” is a question of statutory interpretation, and we review the trial court‘s decision de novo. Wemhoff v. District of Columbia, 887 A.2d 1004, 1007 (D.C.2005); 1618 Twenty-First Street Tenants’ Ass‘n, Inc. v. Phillips Collection, 829 A.2d 201, 203 (D.C.2003).
1. The Language of the Statute
“We start, as we must, with the language of the statute.” Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). “The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used.” Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (en banc) (internal quotation marks and citation omitted). “Moreover, in examining the statutory language, it is axiomatic that ‘the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.‘” Id. (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979) (additional citation omitted)).
Neither TOPA nor the related regulations define the term “provide ... with.” See
We recognize, however, that “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.” Dolan v. United States Postal Service, 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). “The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Therefore, “we do not read statutory words in isolation; the language of surrounding and related paragraphs may be instrumental to understanding them.” District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 652 (D.C.2005) (en banc). “We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme.” Bailey, 516 U.S. at 145. “Statutory interpretation is a holistic endeavor....” Washington Gas Light Co. v. Public Service Comm‘n, 982 A.2d 691, 716 (D.C.2009) (internal quotation marks and citations omitted).
TOPA contains separate provisions dealing with single-family accommodations (
The process begins when the owner provides each tenant and the Mayor a written copy of an offer of sale (
(4) A statement that the owner shall make available to the tenant a floor plan of the building and an itemized list of monthly operating expenses, utility consumption rates, and capital expenditures for each of the 2 preceding calendar years within 7 days after receiving a request. The statement shall also indicate that the owner shall, at the same time, make available the most recent rent roll, list of tenants, and list of vacant apartments. If the owner does not have a floor plan, the owner may meet the requirement to provide a floor plan by stating in writing to the tenant that the owner does not have a floor plan.
D.C.Code § 42-3404.03(4) (2001).
The owner‘s obligation is to make this information available to the tenant “within 7 days after receiving a request.”
Thus,
3. The Legislative History
We have not found any legislative history from 1980 that is particularly useful in deciding the question before us. This is not surprising because, as originally enacted, TOPA did not require tenants in accommodations of up to four units to submit a statement of interest within any specified period of time. Rental Housing Conversion and Sale Act of 1980, D.C. Law 3-86, §§ 409-410, 27 D.C.Reg. 2975, 2993-94 (1980).8 In 1983, however, the Council
In its original form, TOPA set only one deadline for an expression of interest, and it applied to tenants in an accommodation with five or more units. “In order to make a contract of sale with an owner,”
In 1983 the Council was asked to extend the life of the Rental Housing Conversion and Sale Act and to make certain amendments. The Committee Report explained that § 45-1639 (now codified at
During the legislative process, Mayor Barry wrote to Councilmember John Ray, urging, among other things, an amendment to § 45-1639 “requiring that tenants in properties with two to four units indicate interest in purchasing as a prerequisite to using all of the existing negotiation period.” Carol Thompson, Director of the Department of Consumer and Regulatory Affairs, explained the need for this amendment during her testimony on behalf of the executive branch:
Under the current law, an owner of a building with two to four units must wait a total of 135 days [9] before the owner knows whether the tenants will attempt to buy the property. On the other hand, the tenants in a building with five units or more must indicate an interest in purchasing within 45 days in order to continue with the purchase process. We recommend that a parallel provision be included for buildings with two to four units. This amendment would make the law more equitable for the “smaller” landlords who are often the owners of these small rental properties.
Id., Report on Bill 5-162 at Attachment B, page 6. As indicated, this amendment was designed to give “timely notice” to the owner and to reduce the time he must wait before learning whether the tenants will attempt to buy the property.
Section 1639 was amended in two respects. Three sentences, here italicized, were added to the end of subsection (1) so that it read:
(1) Joint and several response.—The tenants may respond to an owner‘s offer first jointly, then severally. Upon receipt of a written offer of sale from the owner, a group of tenants acting jointly
shall have 15 days to provide the owner and the Mayor with a written statement of interest. Following that time period, an individual tenant shall have 7 days to provide a written statement of interest to the owner and the Mayor. Each statement of interest must be [a] clear expression of interest on the part of the tenant or tenant group to exercise the right to purchase as specified in this subchapter[.]
Subsection (2) was amended by adding the italicized words at the beginning:
(2) Negotiation period.—(A) Upon receipt of a letter of intent from a tenant or a tenant group, the owner shall afford the tenants a reasonable period to negotiate a contract of sale, and shall not require less than 90 days. For every day of delay in providing information by the owner as required by this subchapter, the negotiation period is extended by 1 day;
(B) If, at the end of the 90-day period or any extensions thereof, the tenants jointly have not contracted with the owner, the owner shall provide an additional 30-day period, during which any 1 of the current tenants may contract with the owner for the purchase of the accommodation[.]
D.C. Law 5-38, § 2(k), 30 D.C.Reg. 4866 (1983). To be sure, our task would have been simpler if the Council had used the word “deliver” instead of “provide,” but there is every reason to believe that the Council intended this “parallel provision” to have a similar meaning to the statute on which it was modeled—the section dealing with buildings of five units or more, which required that the statement of registration be delivered within 45 days. See testimony of Director Thompson, quoted above. This 1983 amendment was intended to give the owner “timely notice” “in a time certain” and required that the statement of interest be provided (made available or delivered) to the owner within fifteen days.
We now come to the deadline at the heart of this case. The Preamble to D.C. Law 7-154 (effective September 29, 1988) explains that the purpose of the 1988 amendments was to extend the life of the legislation and “to require a tenant to provide the owner of a single-family accommodation with a written statement of interest within 30 days of receiving a written offer of sale from the owner.” D.C. Law 7-154 § 2(g), 35 D.C.Reg. 5715-16 (1988). The Committee Report confirms that “[t]he new bill will require a tenant of a single family accommodation, like tenants of 2-4 unit accommodations, to submit a written statement of interest to purchase the property within 15 days [later changed to 30 days in the case of single-family dwellings] of an offer of sale.” D.C. Council, Report on Bill 7-462 at 3 (June 27, 1988).
This change had been suggested to benefit landlords—to “ease the hardships faced by property owners, without weakening any of the existing tenant protections.” Id. at 4 (summarizing testimony on behalf of Apartment and Office Building Association which characterized the restrictions of TOPA as “a gross infringement on property rights,” but suggested, if legislation was extended, changing several procedural provisions, including adding a time limit for providing a statement of interest); id. (reporting that Association of Realtors opposed renewal of legislation but, in the alternative, asked Council “to require tenants in a single-family accommodation who want to exercise their right to purchase to give written notice within 15 days of receipt of the owners’ notice to sell“). The history of this provision demonstrates that it was added to benefit landlords by establishing a time certain for the tenant to respond. This legislative history supports the conclusion derived from the structure of the statute and the “ordinary sense” of the words used in it: “shall have 30 days
4. Recent Amendments
Soon after a division of this court issued its decision on February 5, 2009, the Council of the District of Columbia amended the statute through a series of emergency, temporary, and permanent acts. The permanent legislation became effective on July 23, 2010, after the required period of congressional review. 57 D.C.Reg. 7532 (2010) (notice of effective date). This legislation amended
The Council asserted that this court‘s decision made it “necessary to clarify the Council‘s intent that tenants have the full 30 days provided by law to express an interest in purchasing their unit following an offer of sale from the landlord.” See § 2(e), (g) of Tenant Opportunity to Purchase Preservation Clarification Emergency Declaration Resolution of 2009 (emphasis added).10 56 D.C.Reg. 2120 (2009). Thus, the announced purpose of the amendment was “to clarify” that a tenant can preserve his opportunity to purchase by “hand delivery or sending by certified mail [the] letter of interest” and that “actual receipt ... by the housing provider or the Mayor within the relevant time frame is not required.” D.C. Act 18-327, Preamble, 57 D.C.Reg. 2544 (2010).
The Council may have clarified TOPA for the future, but it did not purport to enact legislation that would govern this case. Given the absence of clearly expressed intent to the contrary, we presume that the amendment does not apply retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.“). In fact, at oral argument, the tenant‘s counsel assured us that the amendment operates prospectively only.
Nor did the Council‘s action in 2009 provide meaningful assistance in discerning the intent of the predecessor Councils which enacted TOPA and later added the thirty-day deadline. In the first place, the Council did not assert that it was clarifying what the earlier legislators meant.11 Secondly, “there is serious debate and doubt as to when, if ever, a later legislature has a role in construing what an earlier legislature intended.” United States Parole Comm‘n v. Noble, 693 A.2d 1084, 1103 (D.C.1997), majority opinion adopted on rehearing en banc, 711 A.2d 85, 86 (D.C.1998) (en banc). “[E]ven if
“[T]he Supreme Court often has said ‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.‘” Winters v. Ridley, 596 A.2d 569, 579 (D.C.1991) (Ferren, J., concurring) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960)). See Massachusetts v. EPA, 549 U.S. 497, 530 n. 27, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Price). The hazard certainly is greatest in circumstances like these, where more than two decades have passed, and the Council that acted in 2009 did not contain any members who passed the legislation in 1980, 1983, and 1988. Cf. Winters, 596 A.2d at 578 (Schwelb, J., concurring) (“Relatively little time elapsed between the enactment of the GTCA [in 1986] and the Council‘s actions in 1989. Most of the legislators were members of the Council at both relevant times.“); United States ex rel. Long v. SCS Business & Technical Institute, Inc., 335 U.S.App.D.C. 331, 339-40, 173 F.3d 870, 878-79 (1999) (“Post-enactment legislative history ... becomes of absolutely no significance when the subsequent Congress ... takes on the role of a court and in its reports asserts the meaning of a prior statute.“).
This decision implies no disrespect for the Council, nor does it step beyond our proper role as judges. Ultimately, the interpretation of statutes is “the responsibility of courts, not of subsequently elected legislative bodies.” Winters, 596 A.2d at 577 (Schwelb, J., concurring) (citing Pierce v. Underwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). In sum, nothing about the recent amendments changes our understanding of what the statute meant in 2001.
5. Other Considerations
Practical considerations confirm our reading of the statute. Permitting the tenant to invoke his right to purchase by placing a statement of interest in the mail on the thirtieth day would create uncertainty and impose a significant additional burden on the owner, who would have to decide, without guidance from the statute, how long to wait before concluding that the tenant had not responded. In this case, for example, it apparently took two full weeks for the mail to arrive. Requiring the owner to choose between further, potentially costly, delay in the sale or redevelopment of his property and possibly violating TOPA would serve none of the Act‘s salutary purposes, see
On the other hand, enforcing the thirty-day deadline by requiring that the statement of interest be made available to the owner within that time will provide certainty and predictability that benefit landlords and tenants alike. Moreover, it is a common feature of TOPA that the end of one period triggers the beginning of another, and it often will be important for tenants to know with certainty that a new period has begun.12 In addition, as explained above, this understanding of the
Having considered the language of the statute, its structure, and its legislative history, we hold that the tenant must “provide the [owner] ... with” a statement of interest by ensuring that it is made available to him within thirty days.14
III. The Tenant‘s Arguments
The tenant‘s arguments to the contrary are not persuasive. He urges us to interpose the “mailbox rule” that acceptance of an offer generally is effective “as soon as put out of the offeree‘s possession, without regard to whether it ever reaches the offeror....” RESTATEMENT (SECOND) OF CONTRACTS, § 63(a) (1981). We have seen no indication that the legislature intended to incorporate this common law rule by implication. Indeed, the language, history, and structure of TOPA seem to exclude this possibility. The plain language of
Nor are we persuaded by the fact that some provisions of TOPA expressly allow (or require) notice to be sent by mail. See,
Finally, while we recognize that the Council intended that ambiguities in the statute be resolved “toward the end of strengthening the legal rights of tenants or tenant organizations,” see
Even if we were to apply this legislative rule of statutory construction, it does not provide a straightforward answer to the question before us. “[S]trengthening the legal rights of tenants” as a whole is not the same thing as devising an ad hoc rule that would permit an individual tenant to win. Moreover, the provision of TOPA at issue in this case was meant to balance the rights of tenants and owners. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute‘s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). Indeed, as we have demonstrated above, the interpretation of “provide ... with” that we adopt today could in fact benefit tenants as well as owners, even though it does not help the individual tenant in this case.
IV. Conclusion
The tenant acknowledged that he received the owner‘s offer of sale on April 30, 2001, and he presented no evidence to dispute the testimony that the owner did not receive the tenant‘s statement of interest until June 2, 2001, more than thirty days later. See note 3, supra. Accordingly, the tenant did not “provide” the owner “with” his statement of interest within thirty days of receiving the offer of sale. Because the tenant did not timely invoke his right to purchase under TOPA, the trial court erred in ordering the owner to negotiate a contract for sale to the tenant.18
So ordered.
RUIZ, Associate Judge, dissenting:
I cannot agree with the court‘s conclusion that in order to protect a tenant‘s right to purchase under the District of Columbia Tenant Opportunity to Purchase Act (“TOPA“), a tenant‘s expression of interest in purchasing the property must be received by the owner within the thirty-day period prescribed in the statute, rather than sent by the tenant during that time. The inevitable result of the majority‘s conclusion is that a tenant who elects to mail the expression of interest by first-class mail—as is permitted—will necessarily have less than the full thirty days allowed by the statute, which says that “the tenant shall have thirty days to provide the owner and the Mayor with a statement of interest.”
At a minimum, the case should be remanded for further proceedings. Here, in addition to mailing his expression of interest in buying the home eighteen days after he received the owner‘s offer of sale—well within the thirty-day period—the tenant shortly thereafter sent a signed purchase contract that incorporated the terms in the owner‘s offer of sale ($400,000 price, 5% down, 60 days to settlement) and made a $20,000 deposit in escrow, all demonstrating his bona fide intention to complete the purchase. The record does not show corresponding bona fide compliance with TOPA by the owner. To the contrary, the owner‘s offer of sale was made grudgingly because the owner did not want to sell the property to the tenant, and the owner claimed (without corroboration) that it took two weeks for the tenant‘s mailed notice to reach him in nearby suburban Maryland. On this record, even accepting the court‘s interpretation of the statute, there is a material issue of fact in dispute—the date the owner received the tenant‘s mailed expression of interest in purchasing the property—that requires a remand to the trial court for further proceedings and findings of fact.
1. TOPA must be interpreted to favor the tenant‘s right to purchase.
The court concedes, as it must, that because TOPA uses the word “provide” in connection with the tenant‘s expression of interest to purchase the property, the statute is not clear on its face as to whether the tenant must ensure receipt or simply send the expression of interest within the thirty-day period that the statute prescribes. See ante at 1130 (“To be sure, our task would have been simpler if the Council had used the word ‘deliver’ instead of ‘provide’ ...“). The court, therefore, is forced to choose among dictionary submeanings of the word “provide” (e.g., “furnish” rather than “submit“) and draw analogies to other parts of the statute (and even different statutory schemes) to conclude that when the statute says the “ten-
What the Council has done without equivocation is tell us how the court should interpret any ambiguity in the statute. In the TOPA statute itself is a rule of interpretation that requires that the tenant be given the benefit of the doubt where the court has to determine whether “provide” is to be read as imposing an obligation on tenants to ensure receipt by a date certain, on pain of losing the right to purchase created by the statute.
Statutory construction.
The purposes of this chapter favor resolution of ambiguity by the hearing officer or a court toward the end of strengthening the legal rights of tenants or tenant organizations to the maximum extent permissible under law....
The mandate to resolve any ambiguity in favor of the tenant requires us to interpret “provide” to mean “send,” and not, as the court does, to require that the tenant “deliver” or ensure receipt by the owner. It should be obvious that it is beneficial to tenants to have more time, not less, to consider and respond to an offer of sale. The court‘s attempt to persuade that its interpretation “could benefit tenants as well as owners,” ante at 1134, is belied by the arguments made to the court: both the tenant in this appeal and the Chief Tenant Advocate of the District of Columbia Office of the Tenant Advocate (who urged the court to rehear the case en banc in order to reverse the division‘s interpretation that the full court now affirms) disagree that the court‘s interpretation redounds to the benefit of tenants.2 Moreover, the court is
The statutory language dispensing with use of the word “receipt” in favor of “provide” when speaking of the tenant‘s expression of interest to purchase, when coupled with the statutory mandate to interpret any ambiguity in TOPA‘s use of the word “provide” in favor of “strengthening the legal rights of tenants,”
In light of the clarifying amendment, the majority recognizes that its opinion is unlikely to have any impact beyond precluding the right to purchase of the appellant in this case. That would have been reason enough to reconsider the wisdom of according en banc imprimatur to the division‘s split opinion. Beyond the particular statutory provision (and litigant) in this case, however, there is other mischief the full court‘s opinion could visit on future cases that require interpretation of TOPA or other statutes that contain a similar rule of statutory construction. See, e.g.,
In addition to my disagreement with the court‘s interpretation of the statute against the interest of tenants, I take issue with the court‘s conclusion that the case should be remanded for entry of an order dismissing the tenant‘s complaint. See ante at 1134. That resolution is premature as there remains a disputed issue of fact that is material under the court‘s interpretation: when did the owner receive the tenant‘s notice expressing an intent to purchase the property? The tenant testified that he received the owner‘s offer of sale on April 30, 2001, and TOPA clearly says that is when the thirty-day period began.
The court dispenses with the usual remand, however, by saying that the tenant has not presented evidence disputing the owner‘s testimony as to when the owner actually received the tenant‘s notice. This is another instance in which the court, contrary to the statutory mandate to “favor resolution of ambiguity” in favor of strengthening the tenant‘s rights,
Even though the tenant has not presented direct evidence of when the owner received the notice of intent to purchase, there are inferences a fact-finder could make based on the evidence of record that could well lead to a rejection of the owner‘s claim that he did not receive the tenant‘s notice until two days after the thirty-day period had expired. First, it is undisputed that the owner‘s offer of sale to the tenant was mailed on April 28, 2001; the tenant testified that he received it two days later, on April 30. Second, it is also undisputed that the tenant responded by mailing his notice of intent to purchase on May 18, 2001, by certified mail, well within the thirty-day period. Third, the owner says that he did not receive the tenant‘s letter until two weeks later, on June 2. That is a disputed fact. Two weeks is a long time for a letter to be delivered from an address within the District of Columbia to an address in adjoining suburban Maryland, particularly when a letter going between the same two addresses at approximately the same time is delivered within two days, not two weeks. There is other
Finally, there is a procedural motion to submit additional evidence that the trial judge could well want to reconsider on remand for further proceedings. TOPA requires that copies of the owner‘s offer of sale and tenant‘s expression of interest in purchasing be sent to the Mayor. See
ANNA BLACKBURNE-RIGSBY
ASSOCIATE JUDGE
Edward BALTIMORE, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
Nos. 09-CV-759, 09-CV-760, 09-CV-761.
District of Columbia Court of Appeals.
Argued April 1, 2010. Decided Jan. 6, 2011.