Presidential Village, LLC v. Perkins
Presidential Village, LLC v. Perkins
Opinion
**47
This summary process action concerns the degree of specificity required in the
*618
pretermination notice
1
that, pursuant to regulations promulgated
**48
by the federal Department of Housing and Urban Development (HUD), must be provided to a tenant who resides in federally subsidized housing before the landlord may commence an eviction proceeding against that tenant. Specifically, the issue presented is whether a pretermination notice asserting nonpayment of rent as the ground for the proposed termination of the tenancy is jurisdictionally defective if it includes either rent charges that cannot serve as a basis for termination of the tenancy under state summary process law or undesignated charges for obligations other than rent. The trial court concluded that the inclusion of both types of charges renders the notice jurisdictionally defective. The Appellate Court concluded that state law is irrelevant to the legal sufficiency of such a notice, and that the inclusion of charges other than for rent is not a material defect under federal law.
Presidential Village, LLC
v.
Perkins
,
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 **49 Section 8 3 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 *619 Housing & Urban Development, HUD Handbook 4350.3 Rev-1: Occupancy Requirements of Subsidized Multifamily Housing Programs (November, 2013) (HUD Handbook).
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 **50 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 under-taken 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:
**51"RE: PAST DUE RENT Inv. No Inv. Date Due Date Inv. Amount Balance 08/27/2013 08/27/2013 $1,797.56 $1,797.56 10 09/01/2013 09/11/2013 $93.00 $93.00 CHFA201321 10/01/2013 10/11/2013 $93.00 $93.00 2014-1232 11/01/2014 11/11/2014 $1,402.00 $1,402.00 2014-1340 12/01/2014 12/11/2014 $1,402.00 $1,402.00 2014-1455 01/01/2015 01/11/2015 $1,402.00 $1,402.00 Total Rental Obligation: $6.159.56"
"You have violated the terms of your lease in that you failed to pay your rent, in *620 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 7 ....
"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 complaint **52 ($ 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 *621 General Statutes § 47a-23 (d). Second, the **53 notice included charges as "rental obligations" that did not qualify as "rent." The trial court noted that the plaintiff had conceded that the $ 6189.56 in "rental obligations" included approximately $ 1300 in attorney's fees for which the defendant was not even liable, 9 and that it could not account for another portion of one of the charges listed. The trial court concluded that the defective notice deprived it of subject matter jurisdiction and rendered a judgment of dismissal.
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,
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.
*622
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
,
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
,
**56
"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. General Statutes § 51-164s. The jurisdiction of the Superior Court in summary process actions, however,
*623
is subject to [certain] condition[s] precedent."
Lampasona
v.
Jacobs
,
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,
**57
Timber Ridge
v.
Caldwell
,
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 42 U.S.C. § 1437a (a) (1) (2012). It is also consistent with the definitions of various types of rent in the HUD
**59
Handbook.
13
See HUD Handbook, supra, glossary; see also, e.g., id., p. 6 ("Contract [r]ent" is defined as "[t]he rent HUD or the Contract Administrator has approved for each unit type covered under an assistance contract. The rent may be paid by the tenant, HUD, or both. Refer to the project's rental schedule [Form HUD-92458] or Rental Assistance contract for exact amounts.").
14
Although there is some indication in one type of rent defined in the HUD Handbook's glossary that rent may include utilities; see id., p. 23 (defining "[m]inimum [r]ent" as "the tenant's contribution
*625
for rent and utilities");
15
and in the HUD form used to calculate the rent schedule; see Form HUD-92458, "Rent Schedule Low Rent Housing" (November, 2005); no definition suggests that rent may include late fees or attorney's fees. Unlike private parties, landlords receiving subsidies from HUD are not free to define "rent" as they see fit.
**60
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.
,
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,"
Having determined that in order to comply with title 24 of the Code of Federal Regulations, § 247.4, the plaintiff was required to specify the alleged dollar amount of unpaid rent in the pretermination notice, it is apparent that this requirement was not met in the present case. The notice, by its own terms, is not limited to unpaid rent. Even if we were to accept the plaintiff's dubious overinclusiveness argument (i.e., that a notice that provides more information than that required is not defective), the notice still would be defective. The notice does not designate which of the charges are assigned to rent and which are assigned to obligations other than rent. Cf.
Ford Motor Credit Co.
v.
Milhollin
,
**64
(The court stated in relation to the Truth in Lending Act,
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 disproportionately hindered by financial illiteracy. See [J. Collins], The **65 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 *628 cannot meet. We disagree with the main premise of this argument.
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
,
The plaintiff reads this court's decision in
Jefferson Garden Associates
v.
Greene , supra,
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
,
**67 In light of this conclusion, we need not reach the defendant's claim that the notice also was jurisdictionally defective because *629 it misleadingly included rent charges for leases that are no longer in effect and that could not be used to support a summary process action under Connecticut law. While prudent landlords would be well served by limiting their pretermination notices to the rent charges that lawfully may support the summary process action, we have no occasion to determine that question in this case.
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.
Although federal regulations refer to the notice as a "termination notice";
We note that two additional defendants, "John Doe" and "Jane Doe," who may have resided in the premises with Perkins, were also named in the complaint but are not parties to the present appeal. All references in this opinion to the defendant are to Perkins.
The trial court observed: "Section 8 refers to Section 8 of the Housing Act of 1937, although what are now called Section 8 programs were not created until almost forty years later, with the enactment of the Housing and Community Development Act of 1974. Section 8, as amended, is codified at 42 U.S.C. § 1437f et seq. There are many different Section 8 programs in existence.... In general, the Section 8 rental assistance programs can be categorized as either tenant based or project based. There are various programs within each of these two categories, and the variations themselves have spawned subvariations and permutations. ... [HUD] has issued publications intended to provide guidance regarding occupancy and termination issues in connection with various Section 8 programs." (Internal quotation marks omitted.)
Market rent is the rent HUD authorizes the owner to collect from families ineligible for assistance. See United States Dept. of Housing & Urban Development, HUD Handbook 4350.3 Rev-1: Occupancy Requirements of Subsidized Multifamily Housing Programs (November, 2013), glossary, p. 22.
It appears that a qualifying tenant's rent is capped at 30 percent of adjusted gross income. See 42 U.S.C. § 1437a (a) (1) (2012). The model lease indicates that, annually, the landlord requests information from the tenant regarding income, family composition, and any other information required by HUD to recertify eligibility for HUD rental assistance. The landlord verifies that information and then uses it to recalculate the amount of the tenant's rent and the HUD assistance payment, if necessary. In the intervening period between annual reviews, the tenant is obligated to advise the landlord if the pertinent information changes.
The basis of this amount is not established in the record. Statements by the parties' counsel at oral argument suggest that $ 1402 represented the market rent for the unit. The plaintiff's counsel suggested that the entire amount was owed by the defendant because she had failed to provide information or forms necessary to maintain eligibility for the subsidy. The defendant's counsel disputes that the defendant owes the entire amount but does not contend that any such overcharge would constitute a jurisdictional defect.
In a footnote in its memorandum of decision, the trial court acknowledged that the parties disputed whether the defendant had discussed, or attempted to discuss, this matter with the plaintiff during the ten day period. The court explained that it had declined to hold an evidentiary hearing to resolve this dispute because its resolution of the case on other grounds rendered it unnecessary. The Appellate Court did not address this footnote when it stated that the defendant "did not discuss the possible termination of her tenancy with the plaintiff's agent during the ten day period ...."
Presidential Village, LLC
v.
Perkins
, supra,
As of March 1, 2011, the defendant's one year lease converted to a month-to-month lease. In a month-to-month tenancy, "[t]he tenancy for each month is separate and distinct from that of every other month.
Welk
v.
Bidwell
,
According to the trial court's decision, the plaintiff conceded during oral argument before that court that the attorney's fees were from a prior, unsuccessful action that should not have been charged to the defendant. At oral argument before this court, the plaintiff's counsel suggested that perhaps the defendant was liable for the attorney's fees. As this statement is in direct conflict with the trial court's decision, the proper time and means to have raised this matter would have been through the filing of a motion for rectification in the trial court. See Practice Book § 66-5. In the absence of any such rectification, we presume that the plaintiff did make, and is bound by, such a concession.
By drawing a clear distinction between curing a default and preparing a defense, the Appellate Court appears to have implicitly rejected the possibility that the opportunity to cure may be relevant to preparing a defense to present in an eviction action. For example, equitable nonforfeiture is a defense that may apply to a summary process action premised on nonpayment of rent. See
19 Perry Street, LLC
v.
Unionville Water Co.
,
We granted the defendant's petition for certification as to the following issues: "1. Did the Appellate Court properly reverse the trial court's holding that a federal pretermination notice for nonpayment of rent must be limited to rent charges that are a permissible basis for such an eviction under Connecticut summary process law?
"2. Did the Appellate Court properly conclude that state law is not relevant in determining whether the information provided in a federal pretermination notice is so misleading as to render it jurisdictionally defective?"
Presidential Village, LLC
v.
Perkins
, supra,
Title 24 of the 2018 edition of the Code of Federal Regulations, § 247.4 (a), provides: "The landlord's determination to terminate the tenancy shall be in writing and shall: (1) State that the tenancy is terminated on a date specified therein; (2) state the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense; (3) advise the tenant that if he or she remains in the leased unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense; and (4) be served on the tenant in the manner prescribed by paragraph (b) of this section."
We note that, although the defendant did not advance this ground in the trial court, it is apparent that the pretermination notice served on her clearly fails to comply with subsection (a) (1), in that it does not include a date on which the tenancy will terminate. We need not base our decision on this ground in light of our conclusion that the notice is jurisdictionally defective for another reason that was raised in the trial court.
The trial court observed that, "[t]o the extent that a requirement contained in the HUD Handbook does not appear in the relevant federal regulations, it is fair to ask whether those requirements are legally enforceable against Section 8 landlords." The trial court did not decide this issue because the plaintiff did not challenge the binding nature of the HUD Handbook, many provisions of which are reflected in the HUD model lease used by plaintiff. We observe that, even when an agency handbook is not legally binding, courts have relied on the agency's interpretations of the governing law therein to the extent that such interpretations are persuasive. See, e.g.,
Burroughs
v.
Hills
,
This definition also conforms to state law. See General Statutes § 47a-1 (h) (defining "[r]ent" as "all periodic payments to be made to the landlord under the rental agreement").
In the HUD model lease, the landlord may designate certain utilities as ones that the tenant is responsible for paying directly to the utility company or as ones that are "included in the [t]enant's rent." In the lease between the parties in the present case, gas (for hot water and heat) was included in tenant rent.
As state law will be the principal source of defenses to a summary process action, it is clear that state law will be relevant in some cases as to whether a pretermination notice is sufficiently specific to allow the tenant to prepare a defense. Moreover, HUD regulations expressly acknowledge that state law applies, except if preempted. See
An amicus brief was filed in support of the defendant by the Jerome N. Frank Legal Services Organization at Yale Law School on its behalf and on behalf of Connecticut Legal Rights Project, Connecticut Legal Services, Inc., The Connecticut Veterans Legal Center, Greater Hartford Legal Aid, Inc., and Disability Rights Connecticut, Inc.
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