Branchwood Housing v. Tabor

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Orange Unit Docket No. 22-CV-893

Branchwood Housing LLP, )
Plaintiff )
)
v. )
)
Anna Tabor, )
Defendant. )

Opinion and Order on Defendant’s Motion To Dismiss

Before the Court is a complaint for ejectment filed by Plaintiff Branchwood

Housing LLP against Defendant Anna Tabor and those holding under her.

Defendant has been a tenant in an apartment owned by Plaintiff since 2005, along

with her son, Dylan Malcher. The apartment is federally subsidized and subject to

Section 8 regulations. On December 20, 2021, Plaintiff sent Defendant a Notice to

Vacate (the “Notice”) by January 24, 2022. The grounds for termination are

numerous, but stem principally from the common nucleus of an incident on

November 19, 2021, where Defendant was allegedly seen smoking on the property

in purported material violation of Defendant’s lease. Defendant was alleged to have

violated the lease by smoking on the premises on other occasions in prior years and

allegedly had been repeatedly warned not to smoke at the premises. Defendant

refused to vacate and continued to hold over the tenancy after January 24, 2022.

Plaintiff filed the instant complaint on March 14, 2022.

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On March 28, 2022, Defendant filed a motion to dismiss, asserting that

Plaintiff failed to allege sufficient facts to state a claim for eviction; failed to attach

a complete copy of the lease as required by law; failed to allege a sufficient basis for

attorney’s fees; and failed to terminate the occupancy rights of Mr. Malcher. As

part of the failure to allege sufficient facts argument, Defendant made numerous

sub-arguments, including: that each year represents a new lease term and

violations from prior years cannot be held against Defendant; that the Notice was

insufficiently factually specific and included stale claims to justify the termination;

that the lease was not properly amended to include a no smoking clause; and that

Plaintiff failed to allege good cause for termination as one instance of smoking is

neither a serious nor a repeated lease violation.

Plaintiff filed an opposition on April 27, 2022. To Defendant’s sub-

arguments, Plaintiff contends that each term being a new lease is nonsensical; that

the Notice was more than sufficiently specific; that even if the non-smoking rule

was not properly amended, it was enacted in 2011 and at the latest would have

been effective when the lease automatically renewed in 2012, and Defendant’s

smoking violates other conditions of her lease beyond just the nonsmoking clause;

and that whether Plaintiff had good cause to terminate is a question of fact. To

Defendant’s remaining grounds for dismissal, Plaintiff argues that the lease was

properly attached to the complaint, though certain portions were missing on

account of how long Defendant had been a tenant, and that Defendant was aware of

its contents. Plaintiff further argues that it is premature to address the issue of

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attorney’s fees, and that Mr. Malcher is not a tenant under the lease and is not a

proper party to the action.

On May 12, 2022, Defendant filed a reply memorandum. Defendant argues

broadly that a landlord’s failure to adhere to statutory and regulatory requirements

bars eviction and that Plaintiff has not adhered to federal regulations. Specifically,

Defendant contends that Plaintiff has failed to allege a “serious or repeated

violation of the lease” as required by federal law, and reiterates her previous

argument that violations during past lease terms do not carry over to new terms.

Defendant also reiterates her positions that the termination notice is insufficiently

specific, that the full lease was not attached to the complaint, and that Plaintiff has

not pleaded any grounds to evict Dylan Malcher from the property.

The Court now weighs the parties’ arguments.

Standard of Review

Motions to dismiss for failure to state a claim are governed by Vt. R. Civ. P.

12(b)(6). Such motions to dismiss are disfavored and rarely granted. Gilman v.

Maine Mutual Fire Ins. Co., 2003 VT 55, ¶ 14, 175 Vt. 554, 557 (mem.). When

reviewing a motion to dismiss for failure to state a claim, the Court “accepts all

factual allegations pleaded in the complaint as true and all reasonable inferences

from those facts.” Id. (citing Richards v. Town of Norwich, 169 Vt. 44, 48-49

(1999)). The Court must view all such evidence in the light most favorable to the

nonmoving party. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245, 247. A motion

to dismiss for failure to state a claim should not be granted “‘unless it appears

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beyond doubt that there exist no circumstances or facts which would entitle [the

plaintiff] to relief.’’” Assoc. of Haystack Property Owners, Inc. v. Sprague, 145 Vt.

443, 446-47 (1985).

Analysis

Accepting all facts in the complaint as true and viewing them in the light

most favorable to Plaintiff, the Court concludes that dismissal is inappropriate.

1. Violations Prior to the Present Lease

As to Defendant’s argument that alleged earlier violations of the lease cannot

be a basis for the present eviction because they occurred during a different lease

year, the Court largely agrees. It does not find that it can dismiss the case on that

basis, however. A contract that has been modified by addendum or additional

agreements is a new contract that replaces the old one. See Hill v. Scott, 101 Vt.

356, 361, 143 A. 276, 278 (1928) (“The contract, when modified by the subsequent

oral agreement, is substituted for the contract as originally made, and the original

consideration attaches to and supports the modified contract.” (internal quotation

omitted)), overruled, in part, on other grds, Duchaine v. Zaetz, 114 Vt. 274 (1945);

17A C.J.S. Contracts § 557 (“An agreement, when changed by the mutual consent of

the parties, becomes a new agreement.”).

Even assuming arguendo that Plaintiff is correct that there may be

circumstances where some violations can carry over between terms of an

automatically renewing lease, the lease that Defendant is accused of violating in

November 2021 is a different lease from the one she violated in November 2017. In

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2017, in the aftermath of Defendant’s smoking violation, Plaintiff and Defendant

signed a new lease addendum, which created a new lease. Such a new lease

operates to waive prior violations of prior leases such that a termination cannot be

based on them. See New Haven Housing Authority v. Kendrick, 1982 WL 195395, at

*1-2 (Conn. Super. Ct. 1982) (unreported mem.) (in context of federally subsidized

apartment, eviction could not be based on violation occurring prior to modification

of lease).1

As a result, for the purposes of this proceeding, there have not been repeated

violations of the lease, and Plaintiff cannot sustain an eviction based on a theory of

repeated violations of the lease.

But that does not end the matter. Plaintiff also contends that the November

2021 incident is sufficient, by itself, to support eviction because it considers smoking

on the property a serious violation that also breaches other conditions of the lease

beyond the nonsmoking rule. Whether one instance of smoking provides good cause

to evict Defendant in this context is a question of fact the determination of which is

beyond the scope of a motion to dismiss. Rheaume, 2011 VT 72, ¶ 4, 190 Vt. 245,

248 (questions of fact are improper to dispose of in a motion to dismiss). The Court

will not dismiss on such a basis.2

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Thus, for example, the Court has no need to decide whether it may be possible for a
landlord to base an eviction on a serious breach that occurs on last day of one lease
term but can take no action until the new term has begun.
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The Court makes no determination at this point as to whether evidence of alleged
prior violations and the interactions between the parties concerning smoking in
general at the premises can be considered in assessing the seriousness of the
alleged November 2021 breach.
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2. Improper Amendment to Include No-Smoking Policy

Along similar lines, the Court finds that the allegedly improper

implementation of the non-smoking policy does not provide valid grounds for

dismissal. The rule in question went into effect over a decade ago, and, even

assuming it was implemented improperly at the time, Defendant affirmatively

agreed to be bound by its terms when Defendant signed the 2017 addendum and

created a new lease.

3. Lack of Specificity Regarding the Alleged Violation

The Court also disagrees with Defendant’s contention that Plaintiff’s Notice

was insufficiently specific to sustain an eviction. Under federal law, a notice of

eviction must be “sufficiently specific … to enable the applicant to prepare rebuttal

evidence to introduce at his hearing appearance.” Billington v. Underwood, 613

F.2d 853, 862 (5th Cir. 1980); Escalera v. New York Housing Authority, 425 F.2d

853, 862 (2d Cir. 1970) (purpose of notice is to enable tenant to prepare a defense);

see 24 C.F.R. § 247.4(a). An effective notice identifies the specific incident that

formed a basis for the eviction, and “a brief factual statement concerning the

incident.” Edgecomb v. Housing Authority of the Town of Vernon, 824 F. Supp. 312,

315 (D. Conn. 1993).

Here, the Court finds that Plaintiff’s description of the events is sufficient to

maintain an eviction proceeding—it describes the specific incident that gave rise to

the Notice, along with the specific date of November 19, 2021. Defendant’s reliance

on Brattleboro Housing Authority v. Heger, Docket No. 351-10-19 Wmcv, for the

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proposition that Plaintiff’s notice is deficient is not persuasive. In Heger, the

landlord failed to detail or date any specific incident that created cause for eviction.

Here, by contrast, Plaintiff has provided significantly more information.

As with determining the severity of the smoking violation, whether Plaintiff’s

evidence is credible and sufficient to show that Defendant violated the lease is a

disputed question of fact that is beyond the scope of a motion to dismiss. The

alleged facts are sufficiently specific to maintain the action at the threshold.

4. The Failure to Name Dylan Malcher

Plaintiff’s failure to name Dylan Malcher specifically in the complaint or to

allege separate grounds for his ejectment is also not a basis for dismissal.

Defendant has provided citations she argues support the fact that a landlord must

provide specific grounds for eviction for each occupant of a property. King’s Corner

LLC v. Cruz, No. 206-4-16 Wrcv (June 23, 2016) (“The remedy of possession must be

as to all tenants simultaneously.”); Peck v. Martin, No. 643-9-10 Wncv (Aug. 18,

2011) (where landlord allowed tenant’s wife to move in during tenant’s lease and

landlord accepted public funds for wife’s occupancy, wife was entitled to due process

of eviction proceedings).

While Defendant proffers that these cases are broadly concerned with all

occupants, the Court finds their scope is narrower. Both King’s Corner LLC and

Peck specifically involved leases with multiple tenants, officially or de facto due to a

landlord’s acceptance of public funds for the party’s occupancy. Here, at least based

on the present record, Mr. Malcher’s occupancy is based solely under and pursuant

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to Defendant’s tenancy agreement. In the lease, he is described as an “other

occupant” or “household member.” He never signed the lease, has no exclusive

possessory interest, has no obligation to pay rent, and there appears no allegation

that Plaintiff accepted rent from him on an independent basis. Under such

circumstances, the Court cannot conclude that he is a tenant. See 49 Am. Jur. 2d

Landlord and Tenant § 1 (“An occupant of a rental unit who does not have the right

to exclusive possession and the concomitant obligation to pay rent does not meet the

generally accepted common-law definition of a “tenant.” (internal quotation

omitted)); see also 9 V.S.A. § 4451(10) (“Tenant” defined as “person entitled under a

rental agreement to occupy a residential dwelling to the exclusion of others.”).

While a tenancy may arise impliedly or from operation of law in certain

circumstances, see, e.g., Mayo v. Claflin, 93 Vt. 76, 106 A. 653, 655 (1919)

(describing the creation of a tenancy at will where landlord accepted rent outside of

lease term), there is no evidence of the creation of such an independent tenancy as

to Mr. Malcher in this case.

As a result, Mr. Malcher’s right to residency is derivative of and contingent

upon Defendant’s ongoing tenancy. If her lease ends so does his right to reside on

Plaintiff’s property. Accordingly, Plaintiff was not required to name Mr. Malcher in

the complaint or allege additional grounds to support ejectment as to him.

5. The Failure to Attach the Full Lease to the Complaint

As to the allegation that Plaintiff failed to attach the full lease to the

complaint, it appears that the sole missing portion of the lease is the boilerplate

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Section 8 addendum mandated by federal law. Plaintiff appears to acknowledge

that failure, noting that that portion of the lease, despite due diligence, cannot be

located. Plaintiff alleges, however, that it is a standard form that uniformly

accompanies federal leases. It also alleges that is has access to the standard

Section 8 addendum that is applicable to the parties’ lease.

The Court orders Plaintiff to file a supplement to its complaint containing the

missing Section 8 addendum applicable to Defendant’s lease within 21 days. The

Court will not dismiss based on the failure to attach the addendum. See McClellan,

2017 VT 13, ¶ 39, 204 Vt. 252, 269. To the extent Defendant challenges the

addendum’s accuracy, it can be addressed as the case proceeds.

6. Attorney’s Fees

Finally, the Court agrees with Plaintiff that a motion to dismiss is an

inappropriate vehicle to address potential claims for attorney’s fees. In the absence

of a specific motion for fees by Plaintiff, with citation to authority and factual

support, and an opposition from Plaintiff, any ruling on such an issue would be

premature and would likely be an improper advisory opinion.

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In light of the foregoing, the Court finds that dismissal is inappropriate.

Defendant’s Motion to Dismiss is denied. Plaintiff is ordered to supplement its

filings with the missing Section 8 addendum Within 21 days.

Electronically signed on Friday, June 17, 2022, pursuant to V.R.E.F. 9(d).

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Superlor Court Judge

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