Yvonne C. Edwards v. Nathan Habib

DANAHER, Circuit Judge

(dissenting):

Basically at issue between my colleagues and me is a question as to the extent to which the power of the court may here be exercised where by their edict the landlord’s right to his property is being denied. They concede as they must 1

“that in making his affirmative case for possession the landlord need only show that his tenant has been given, the 30-day statutory notice, and he need not assign any reason for evicting r. tenant who does not occupy the premises under a lease.”

That fundamental rule of our law of property must give way, it now develops. My colleagues so rule despite the absence of a statutory prescription of discernible standards as to what may constitute “violations,” or of provision for compensating 2 the landlord for the deprivation of his property. They say that the court will'not “frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington.” Since they recognize that there is an “appalling condition and shortage of housing in Washington,” 3 *704 they say the court must take account of the “social and economic importance of assuring at least minimum standards in housing conditions.” So to meet such needs, the burden would now be met, not pursuant to a congressionally prescribed policy, with adequate provision for construction or acquisition costs, or for compensation to property owners, but by private landlords who will be saddled with what should have been a public charge.

Note how my colleagues achieve that result as they rule:

“But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant’s report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted.”

Just as do my colleagues, I deplore the effort of any landlord for a base reason to secure possession of his own property, but if his right so to recover in accordance with our law is to be denied, Congress should provide the basis. Appropriate standards as a pre-condition thus could be spelled out in legislation and just compensation thereupon be awarded if found to be due. 4

I am not alone in my position, I dare say, as I read the Congressional Record for March 13, 1968, page H 1883. In President Johnson’s message to the Congress he said:

“One of the most abhorrent injustices committed by some landlords in the District is to evict — or threaten to evict — tenants who report building code violations to the Department of Licenses and Inspections.

“This is intimidation, pure and simple. It is an affront to the dignity of the tenant. It often makes the man who lives in a cold and leaking tenement afraid to report those conditions.

“Certainly the tenant deserves the protection of the law when he lodges a good faith complaint.

“I recommend legislation to prevent retaliatory evictions by landlords in the District.” (Emphasis added.)

He seems to think as do I that congressional action is required. 5 It may be doubted that the President would so have recommended legislation except upon the advice of the legal authorities upon whom he relies. Certainly he is aware of the due process protective considerations which must be accorded to a landlord, even one who might be guilty of “an affront to the dignity” of a tenant. He must know that a community burden is not to be borne alone by landlords, charged with allegedly “retaliatory” 6 evictions because of complaints *705 of “violations,” undefined and vague and lacking in standards.

That my colleagues ultimately upon reflection began to doubt the sufficiency of their position seems clear enough, for they observe:

“This is not, of course, to say that even if the tenant can prove a retaliatory purpose she is entitled to remain in possession in perpetuity.” (Emphasis added.)

“Of course” not, I say; not at all as the law has read, until now, I may add. My colleagues continue:

“If this illegal purpose is dissipated, the landlord can, in the absence of legislation or a binding contract, evict his tenants or raise their rents for economic or other legitimate reasons, or even for no reason at all.”

And so, it may be seen according to the majority, we need never mind the Congress, the aid of which the President would invoke. We may disregard, even reject, our law of such long standing. We will simply leave it to a jury to say when a landlord may regain possession of his own property, although “the determination is not easy,” my colleagues concede. 7

I leave my colleagues where they have placed themselves.

. See generally, 45 D.C.Code §§ 902, 910 (1967) and 16 D.C.Code § 1501 (1967).

. Berman v. Parker, 348 U.S. 26 , 75 S.Ct. 98 , 99 L.Ed. 27 (1954) held for the first time that the government here might condemn one’s property and turn it over to another private “person”— but not without due process, not without compensation.

. It is common knowledge that following Berman v. Parker, supra note 2 , the housing structures in one entire quadrant of the City of Washington were razed, driving thousands of tenants to seek whatever “appalling” accommodations they could find. In place of the destroyed housing, beautiful apartment buildings have been built, to be sure, with “co-ops” in some costing up to $100,000 per apartment, with rentals in others priced far beyond the capacity to pay of thousands of those who had been displaced. And even the affluent tenants having chosen to do so, must be presumed, at least until now, to have *704 taken the premises in the condition in which they found them, cockroaches and all.

The Washington Post on April 1, 1968' editorialized upon the need for a renewal project after “the wholesale bulldozing of slums and massive uprooting of families with them which characterized the Southwest development.”

. As Chief Judge Hood observed, writing for a unanimous District of Columbia Court of Appeals: “If, as some believe, the law relating to landlords and tenants is outdated, it should be brought up-to-date by legislation and not by court edict.” Edwards v. Habib, 227 A.2d 388, 392 (1967). In note 10, id., he quoted from Collins v. Hardyman, 341 U.S. 651, 663 , 71 S.Ct. 937, 942 , 95 L.Ed.2d 1253 (1951), “It is not for this Court to compete with Congress or attempt to replace it as the Nation’s law-making body.”

. Chief Judge Hood has traced out certain references to action already under way in Congress relating to the type of situation said to be present here. Edwards v. Habib, supra note 4 , 227 A.2d at 390-91 . And see the majority opinion, n. 51.

. For background and as a matter of convenient reference, let it be noted that Edwards and Habib entered into a monthly tenancy agreement as of March 24, 1965. The tenant paid one month’s rent in advance, and, of course, took the premises as she found them. The agreement provided that failure thereafter to pay the rental in advance would constitute a default and that the agreement *705 was to operate as a notice to quit and that the statutory 30 days’ notice to quit was expressly waived. Repeatedly thereafter the tenant was in default of payment of the rental. As of October 11, 1965, neither the appellant nor her counsel appeared in the Landlord-Tenant Branch of the Court of General Sessions. A later motion to reopen a default judgment was granted, a two-day trial followed, and a directed verdict for the landlord was entered.

This court was asked to stay the judgment after the District of Columbia Court of Appeals refused to do so. I then dissented from this court’s order for reasons set forth in Edwards v. Habib, 125 U.S.App.D.C. 49, 51 , 366 F.2d 628, 630 (1965), to which I now refer. In the meanwhile, time and again, further defaults occurred with resulting harassment and vexation to the landlord which this court as often overlooked.

The landlord is still without possession of his property which should have been available to him for remodeling or sale, or even that the structure might be razed. Unless its condition could justify its condemnation by lawful authority, his should have been the option as to future use of the property.

It is difficult for me to understand how this court can sustain so studied a deprivation as has here occurred.

. And with the results in riot-torn Washington so painfully obvious the prospect now being opened up may seem horrendous indeed, whether the “violations” were committed by the tenants themselves or by others whose conduct created conditions with which the landlord must cope. I cannot accept the premise that Congress even remotely entertained any such “intent” as my colleagues so confidently proclaim.