HUD landlord’s unlawful detainer claim dismissed

A subsidized housing landlord’s unlawful detainer action to evict a tenant is dismissed because the notices required by the U.S. Department of Housing and Urban Development were deficient.

Further, the indigent tenant was not required to post an appeal bond to perfect her appeal from the general district court, which found in the landlord’s favor.

Facts

On June 21, 2019, Cedar Ridge, the plaintiff landlord, sent defendant Boler a notice of termination regarding her lease. Cedar Ridge then sued in the general district court to evict Boler. On Sept. 6, the GDC entered a judgment for Cedar Ridge.

Boler noted an appeal. The GDC ordered her to post an $1,100 appeal bond and refused to send the case papers to the circuit court because Boler was unable to post the bond. She claims that a GDC clerk rebuffed her request that the bond be waived because she was indigent.

On Sept. 12, the circuit court granted Boler’s motion to proceed in forma pauperis. The GDC did not forward the case papers, stating that the appeal was not perfected because Boler did not post an appeal bond.

The GDC issued an eviction writ on Oct. 30. In the GDC, Boler filed an emergency motion to stay, and to waive the appeal bond, on Nov. 6. The court denied the motion. The eviction order was carried out a few days later.

Boler sought relief in the circuit court. The court made a preliminary ruling that the GDC had misread a recent amendment to the applicable law. The court ruled that the awarded attorney’s fee awarded in the GDC did not have to be posted as an appeal bond because the case did not involve nonpayment of rent, but rather, that other provisions in the lease were violated.

The court ruled that the GDC’s eviction ruling “was a nullity.” The court assumed jurisdiction and ordered the GDC to transmit the case papers. At a hearing after the papers were transmitted, Boler’s pro bono counsel raised a defense of inadequate notice in the eviction proceedings. The court took this under advisement and gave Cedar Ridge an opportunity to respond.

Before the court are two issues: jurisdiction and whether Boler received proper notice.

Jurisdiction

“In this case, the GDC refused to transmit the case papers to the Circuit Court on the ground that the appeal was not perfected, this after Boler properly noted her appeal. In light of the recency of the July 1, 2019 amendment to the Virginia Code pertaining to appeal bonds that may be applicable to tenants similarly situated to Boler who are not indigent, it is somewhat explicable the GDC possessed this mistaken view. …

“A superficial reading of such amendment might lead to the initial conclusion the posting of a bond was required in this case. However, when a disputed issue of first impression arises regarding the jurisdiction of the Circuit Court, particularly that of interpretation of a new statutory provision, due process and prudence suggest the GDC Clerk should transmit the case papers to the upper court to permit this Court to determine the issue of its jurisdiction. …

“Virginia Code § 16.1-107 sets out the requirements for an appeal from courts not of record in this unlawful detainer action. Virginia Code § 16.1-107(A) requires a bond be posted in order to perfect an appeal; Code § 16.1-107(B) exempts indigent defendants from posting a bond except in limited circumstances; Code § 16.1-107(C) sets out specifications for the bond in cases involving unlawful detainer for a residential dwelling unit; Code § 16.1-107(D) concerns the conditions of the appeal; and Code § 16.1-107(E) requires the appellant to pay fees as set by the court.

“At issue in this case is the relationship between Section B and the new text in Section C of Virginia Code § 16.1-107. The GDC appears to have concluded, and Cedar Ridge argues, that section C provides an exemption from the indigency waiver of bond on appeal. This Court finds this interpretation misconstrues the new statutory provision. …

“Section B provides a specific list of exceptions to the general rule that indigent persons are not required to post bond. … Section C, a July 1, 2019 amendment to the Code, concerns ‘unlawful detainer for a residential dwelling unit,’ the cause of action in this case as pled.

“However, Section C does not mention the indigent nor does it purport to create a new exception for this action. Unlawful detainer for a residential dwelling unit is simply not one of the listed exceptions to the general rule waiving bond for the indigent in Section B. …

“It is undisputed Boler is indigent, and this Court has entered an order finding her such and waiving costs and fees in this case. Thus, the appeal was properly noted, and this Court has jurisdiction to consider the merits of the case.”

Notice

“The HUD Occupancy Handbook provides that lease terminations must be in compliance with HUD regulations. “[T]he Court must determine whether Cedar Ridge did in fact comply. The answer is plainly, no. Cedar Ridge failed, in the ‘Thirty Day Termination Notice’ … to comply with several of the Handbook requirements, namely: to provide a specific date of termination, to advise the tenant of her right to present a defense, to advise the tenant of a 10 day period in which to discuss the termination; and to advise the tenant that reasonable accommodations must be provided for persons with disabilities.”

The unlawful detainer action is dismissed.

FCRHA Cedar Ridge v. Boler, Case No. CL-2019-12942. Jan. 17, 2020; Fairfax Cir. Ct. (Bernhard). Jerome P. Friedlander for plaintiff, Oluwatoyin Martin for defendant. VLW 020-8-015, 20 pp.