Winston Affordable Housing, LLC v. Roberts

IN THE SUPREME COURT OF NORTH CAROLINA

No. 267PA19

Filed 1 May 2020

WINSTON AFFORDABLE HOUSING, LLC d/b/a Winston Summit Apartments

v.
DEBORAH ROBERTS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, 828 S.E.2d 755, 2019 WL 2510879 (N.C.

Ct. App. 2019), affirming a judgment entered on 3 November 2017 by Judge Denise

S. Hartsfield in District Court, Forsyth County. Heard in the Supreme Court on

11 March 2020.

Blanco, Tackabery & Matamoros, P.A., by Elliot A. Fus and Chad A. Archer,
for plaintiff-appellee.

Legal Aid of North Carolina, Inc., by Andrew Cogdell, Liza A. Baron, Valene K.
Franco, and Celia Pistolis, for defendant-appellant.

William D. Rowe, Jack Holtzman, and Carlene McNulty, for North Carolina
Justice Center; Elizabeth Myerholtz and Lisa Grafstein, for Disability Rights
North Carolina; and J.L. Pottenger Jr., for Yale Law School Housing Clinic;
amici curiae.

EARLS, Justice.

Deborah Roberts is a longtime tenant of the Winston Summit Apartments,

having lived there for more than twenty years. The complex is owned by Winston

Affordable Housing, LLC (WAH). Winston Summit Apartments is a project-based
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Opinion of the Court

Section 8 property. This means that the U.S. Department of Housing and Urban

Development (HUD) provides money to the landlord, subsidizing the rents for units

at the property and lowering the effective rent for low-income tenants like Ms.

Roberts. WAH receives the subsidy payment directly from HUD pursuant to a

Housing Assistance Payments (HAP) contract between HUD and WAH. The subsidy

is tied to the unit—it is not a voucher that a tenant could take to a different apartment

complex to receive a subsidized rental rate.

In late 2016, WAH sought to evict Roberts by terminating her lease for alleged

breaches primarily relating to her conduct toward property management staff and

conditions in and around her unit. Roberts did not leave. WAH’s property

management company, Ambling Management Corp. (Ambling), filed a Complaint in

Summary Ejectment on 5 January 2017, claiming that Roberts was a holdover

tenant. On 9 January 2017, the property manager served Roberts with a ten-day

notice to pay rent or quit, alleging that Roberts was in default under “the rental

agreement dated 01/01/2007” in the amount of $547. Following a judgment in small

claims court, WAH filed an amended complaint. Ultimately, the District Court in

Forsyth County entered a judgment evicting Roberts and granting possession of the

apartment in which she lived to WAH “based on nonpayment of rent for January 2017

and the first part of February 2017.” In doing so, the trial court determined that

WAH had waived its claims as to Roberts’s alleged lease breaches. The Court of

Appeals affirmed, holding that the trial court’s findings of fact supported its

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conclusion that Roberts’s failure to pay rent entitled WAH to possession. Winston

Affordable Hous., L.L.C. v. Roberts, 828 S.E.2d 755, 2019 WL 2510879 (N.C. Ct. App.

2019).

We reverse the Court of Appeals and remand to the trial court for further

findings of fact. First, we hold that the trial court’s findings do not support its

determination that WAH had waived its right to terminate the lease based on the

alleged breaches by Roberts. Second, we hold that terminating either a lease or a

federal subsidy for a particular tenant in a federally-subsidized housing arrangement

requires compliance with applicable federal law as incorporated in the terms of the

lease. Third, we hold that the record does not contain sufficient findings to support

the conclusion that WAH is entitled to possession on the basis of nonpayment of rent.

Background

Roberts is a sixty-two-year-old woman with cognitive disabilities. She has

lived in her unit at the Winston Summit Apartments since 1997. Prior to the current

dispute regarding her lease, she paid $139 per month in rent. Roberts receives a fixed

income of $755 per month in addition to food stamps.

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WAH alleged that Roberts violated her lease terms by:1

(a) Harassing Ambling’s staff about various issues—
including but not limited to management’s refusal to
provide Tenant with a key to the mail room that would
enable Tenant to access other tenants’ mail and
packages—and making and threatening false claims
against Plaintiffs.

(b) Spreading pest control powder in common areas and
other tenants’ apartments, despite the objection of other
tenants and despite Ambling’s repeated requests that
Tenant cease this practice and not interfere with the
professional extermination services arranged by Plaintiffs.

(c) Keeping her Premises in a cluttered, dirty and
unsafe condition.

(d) Violating “no smoking” policies.

On 3 October 2016, Roberts received a letter with the subject heading “Notice

of Termination of Lease.” The letter notified Roberts that “Winston Summit ha[d]

elected to terminate [her] lease” and stated that her lease would terminate at the end

of the then-current term, which ended 31 December 2016. It alleged that Roberts’s

“repeated lease violations” had “disrupted the livability of the property, adversely

affected the health or safety of residents and staff, the peaceful enjoyment of other

1 Because the trial court determined that WAH waived these alleged breaches by
accepting rent payments from Roberts, the trial court necessarily did not consider whether
the evidence produced at trial amounted to material noncompliance, which would warrant
termination of the lease by its terms. Accordingly, we consider only the claims included by
WAH in its amended complaint, assuming their truth for the purposes of this opinion. Cf.
Renwick v. News & Observer Pub. Co., 310 N.C. 312, 315, 312 S.E.2d 405, 408 (1984) (stating
that allegations in a complaint are taken as true when deciding whether they should be
dismissed).

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residents to the property, and interfered with the management of the property.” The

letter provided examples of the offending behavior. It then notified Roberts of when

she would have to leave her unit and stated that she was “required to pay [her] full

rental amount up to the day [she] move[d] out.” The letter then stated: “You have the

right to respond in writing or request a meeting within 10 days to dispute this

proposed termination. You have the right to defend this action in court.”

Roberts did not vacate her apartment by 31 December 2016. WAH’s evidence

at trial indicated that, on 4 January 2017, the on-site property manager saw Roberts

at the mailbox and asked Roberts to come in and sign a document. The document

was a HUD form titled “Owner’s Certification of Compliance with HUD’s Tenant

Eligibility and Rent Procedures.” In the section marked “Gross Rent Changes and

Unit Transfers,” the document listed “Tenant Rent” as $532. Roberts signed the

document. At the same time, Roberts signed2 a document titled “Lease Amendment”

which read in part:

This is to notify you that on the basis of our recent review
of your income and family composition, your monthly rent
has been adjusted as follows:

Contract Rent $532.00
Utility Allowance $61.00

Assistance Payment $0.00
Total Tenant Payment $593.00

Roberts appears to have written “Under duress” beneath her signature on this
2

document. We do not consider or opine on the legal significance, if any, of this qualifier.

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Tenant Rent $532.00

The new rent is effective with the rent due for the month
of 12/31/2016. This notification amends Paragraph 3 of
your lease agreement, which sets forth the amount of rent
you pay each month. All other provisions of your lease
remain in full force and effect. The next scheduled
recertification is 01/01/2017.

Both the Lease Amendment and the Owner’s Certification of Compliance with HUD’s

Tenant Eligibility and Rent Procedures were dated 4 January 2017.

On 5 January 2017, Ambling filed a summary ejectment action in Forsyth

County Small Claims Court. Then, on 9 or 10 January 2017, Ambling delivered a

document to Roberts titled “Ten-Day Notice to Pay Rent or Quit.” The document

alleged that Roberts owed $547 under her rental agreement and demanded that she

pay the amount in ten days or surrender possession of her apartment. If she did not

do so, the document stated that WAH would sue her.

On 7 February 2017, the magistrate in Small Claims Court entered judgment

in the summary ejectment action in favor of Ambling. Roberts appealed to the

District Court for a trial de novo on 14 February 2017. The Notice of Appeal form

contained the following notice to the appealing party:

If you are a tenant appealing from a summary ejectment
judgment entered against you and you wish to stay on the
premises until the appeal is heard, you must SIGN A
BOND that you will pay your rent as it becomes due into
the Clerk’s office; you must PAY IN CASH the amount of
rent in arrears as determined by the magistrate; and if the
judgment was entered more than five (5) days before the
next rental payment is due, you may also have to PAY IN
CASH the prorated amount of rent due from the date the

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judgment was entered until the next rental payment is due.
Ask the clerk for the bond form (AOC-CVM-304) to allow
you to stay on the premises. If you have not signed this
bond and paid the prorated amount of cash within ten (10)
days after the judgment was entered, the landlord can ask
to have the sheriff remove you from the premises even
though the case is being appealed.

The magistrate did not assess any amount of rent in arrears to Roberts, but did

determine that the rental rate was $532 per month. Consequently, Roberts began

paying a monthly rent bond of $532 in mid-February.

On 6 April 2017, WAH filed an amended complaint which made two claims for

relief.3 First, WAH alleged that it was entitled to a judgment for summary ejectment

on the basis of (1) alleged lease violations occurring prior to 3 October 2016 and (2)

failure to pay rent for January 2017 and part of February 2017. Second, WAH alleged

that it was entitled to a monetary judgment reflecting the unpaid rents for January

2017 and part of February 2017. Roberts filed an answer and counterclaims on 7

June 2017. The answer included ten defenses and five counterclaims. Only one of

Roberts’s counterclaims, that WAH’s termination of her rental subsidy constituted

an unfair and deceptive trade practice (UDTP) in violation of N.C.G.S. § 75-1.1,

survived to trial.

The competing claims were tried in October 2017. On 3 November 2017, the

trial court entered judgment in favor of WAH, granting WAH possession of the

3 While it is not entirely clear from the record, it seems that WAH was substituted for
Ambling at some point prior to the filing of the amended complaint. This procedural aspect
of the case has not been presented for our review.

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apartment on the basis of nonpayment of rent and dismissing all other pending claims

and counterclaims. The trial court made the following findings of fact:

1. Plaintiff is the owner of Winston Summit
Apartments, 137 Columbine Drive, Winston-Salem, North
Carolina, where defendant has been a longtime resident.
As of 2016, defendant was leasing Unit 311 (the
“Premises”) from plaintiff pursuant to a Model Lease for
Subsidized Programs (the “Lease”) signed on November 2,
2010.

2. On October 3, 2016, plaintiff provided
defendant with a Notice of Termination of Lease, declaring
that the Lease would be terminated effective December 31,
2016 for “material noncompliance” based on repeated lease
violations, including violations of rules regarding pest
control, smoking, housekeeping and other issues.

3. Following the October 3, 2016 notice—but
before the December 31, 2016 termination date—plaintiff
accepted November and December 2016 rents from
defendant.

4. Defendant did not vacate the Premises and
has continued to reside there.

5. On or about January 4, 2017, defendant
signed documents presented to her by the plaintiff’s
management, indicating that $532 per month in rent would
be owed by defendant after December 31, 2016 (although
defendant previously paid $139 per month in rent and
received “Section 8” subsidized rental assistance from
HUD).

6. This summary ejectment action was
commenced on January 5, 2017.

7. On or about January 10, 2017, plaintiff’s
management gave defendant a “Ten-Day Notice to Pay
Rent or Quit” regarding defendant’s non-payment of
January 2017 rent.

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8. A judgment for ejectment was granted to
plaintiff in Small Claims Court on February 7, 2017.
Defendant appealed to District Court.

9. Rents since mid-February have been paid into
Court by defendant. However, defendant never paid rents
for January 2017 or for the portion of February 2017
accruing prior to her first payment of rent bond into Court.

10. Plaintiff filed an Amended Complaint on
April 6, 2017. Plaintiff sought ejectment, based on the
violations of the Lease listed in the October 3, 2017 [sic]
notice as well as failure to pay January 2017 and early
February 2017 rents. Plaintiff also sought a money
judgment for the unpaid rents.

11. Defendant filed Counterclaims. The
Counterclaims were dismissed prior to trial, except for a
claim for Unfair and Deceptive Trade Practices for
allegedly “improperly terminating defendant’s Section 8
assistance.”

12. Plaintiff represented in open court during
trial that possession of the Premises was its only priority
and that it would voluntarily waive any money judgment.

From these facts, the trial court concluded that WAH had “waived any right to

evict defendant based on any Lease violations occurring prior to” its acceptance of

rent for November and December 2016 and dismissed WAH’s claim for breach of lease

other than nonpayment of rent. The trial court also concluded that Roberts should

be evicted because she did not pay rent for January 2017 and the first portion of

February 2017. Finally, the trial court concluded that Roberts had presented

insufficient evidence to establish a UDTP claim regarding the termination of her

rental subsidy.

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The Court of Appeals affirmed the trial court. First, the Court of Appeals

considered whether Roberts was properly evicted for nonpayment of rent. The court

acknowledged that the parties disputed the appropriate amount of rent, but it was

uncontested on appeal that Roberts did not pay rent for January 2017 to mid-

February 2017. Roberts, 828 S.E.2d 755, 2019 WL 2510879 at *3. As a result, the

court concluded that Roberts’s failure to pay rent “constituted a breach of lease

entitling WAH to possession of the premises.” Id.

Second, the Court of Appeals considered whether the trial court appropriately

rejected Roberts’s UDTP claim. The Court of Appeals determined that there was

“insufficient evidence in this case of an injury proximately caused by the alleged act

or practice” and concluded that Roberts had not proved her claim. Id. at *4.

WAH and Roberts each sought discretionary review in this Court. Roberts

asked us to consider (1) whether she was properly evicted for nonpayment of rent and

(2) whether WAH’s alleged violations of federal regulations governing the subsidized

housing program were unfair trade practices pursuant to N.C.G.S. § 75-1.1. WAH

asked us to consider whether WAH had waived eviction on the basis of Roberts’s

alleged violations of the lease by accepting rent payments in November and December

2016. We granted both petitions.

Standard of Review

When reviewing a judgment entered following a bench trial,

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“the trial court's findings of fact have the force and effect of
a jury verdict and are conclusive on appeal if there is
competent evidence to support them, even though the
evidence could be viewed as supporting a different finding.”
Bailey v. State, 348 N.C. 130, 146, 500 S.E.2d 54, 63 (1998)
(citing Curl v. Key, 311 N.C. 259, 260, 316 S.E.2d 272, 273
(1984)). Although findings of fact “supported by competent,
material and substantial evidence in view of the entire
record[ ], are conclusive upon a reviewing court, and not
within the scope [of its] reviewing powers,” In re Berman,
245 N.C. 612, 616–17, 97 S.E.2d 232, 235 (1957), “[f]indings
not supported by competent evidence are not conclusive
and will be set aside on appeal.” Penland v. Bird Coal Co.,
246 N.C. 26, 30, 97 S.E.2d 432, 436 (1957) (citing Logan v.
Johnson, 218 N.C. 200, 10 S.E.2d 653 (1940)). “[F]acts
found under a misapprehension of the law are not binding
on this Court and will be set aside, and the cause remanded
to the end that the evidence should be considered in its true
legal light.” Hanford v. McSwain, 230 N.C. 229, 233, 53
S.E.2d 84, 87 (1949) (citing, inter alia, McGill v. Town of
Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939)).

In re Estate of Skinner, 370 N.C. 126, 139, 804 S.E.2d 449, 457–58 (2017) (alterations

in original). The trial court’s legal conclusions are reviewed de novo. In re C.H.M.,

371 N.C. 22, 28, 812 S.E.2d 804, 809 (2018) (quoting In re Foreclosure of Bass, 366

N.C. 464, 467, 738 S.E.2d 173, 175 (2013)).

Analysis

In the proceedings below, WAH claimed that it was entitled to possession on

two bases: alleged lease violations by Roberts and nonpayment of rent in January

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2017 and part of February 2017.4 We address the issues of waiver, the purported

lease and subsidy termination, and nonpayment of rent in turn. We then address the

remand to the trial court, which relates to Roberts’s UDTP claim.

Waiver of lease violations

As to the alleged lease violations, the trial court determined that WAH waived

any claim based on the breaches because it accepted rent from Roberts after it knew

of the breaches. On the facts presented by this record, that determination was

erroneous. Because the trial court did not consider whether Roberts’s behavior

amounted to material noncompliance with the lease, we remand for the trial court to

take evidence and make appropriate findings. On remand, the parties may still

present arguments as to whether any of WAH’s conduct after 31 December 2016

constituted a waiver of the alleged violations occurring prior to 3 October 2016,

including the presentation to Roberts of the 3 January 2017 document labeled as a

lease amendment. However, we hold that a landlord does not, by accepting rents,

waive the right to terminate an automatically-renewing lease at the end of the lease

term for breaches of the lease where (1) the landlord notifies the tenant of the

4 WAH also alleged that Roberts was an improper holdover on an expired lease.
However, WAH no longer pursues this claim, and it is unavailing in any case. Under the
terms of the lease, which mirror the requirements of federal law, Roberts could only be
evicted for specifically enumerated reasons or “other good cause.” Otherwise, unless Roberts
terminated the lease herself, it would automatically renew at the end of each lease term. As
a result, Roberts could not be a “holdover tenant” in the sense that she would be subject to
eviction for simply remaining after the expiration of her lease. Without action on her part,
the lease would not ordinarily expire.

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breaches; (2) the landlord communicates to the tenant that, as a result of the

breaches, the landlord will not renew the lease at the end of the then-effective lease

term; (3) the landlord accepts rent from the tenant through the end of the then-

effective lease term; and (4) non-renewal of the lease is specifically enumerated in the

lease as a remedy to the landlord in case of a breach by the tenant.

When a landlord accepts rent from a tenant knowing that the tenant has

breached the lease, the acceptance “will ordinarily be treated as an affirmation by

him that the contract of lease is still in force, and he is thereby estopped from setting

up a breach in any of the conditions of the lease and demanding a forfeiture thereof.”

Winder v. Martin, 183 N.C. 410, 411, 111 S.E. 708, 709 (1922).

It is the generally accepted rule that if the landlord receive
rent from his tenant, after full notice or knowledge of a
breach of a covenant or condition in his lease, for which a
forfeiture might have been declared, such constitutes a
waiver of the forfeiture which may not afterwards be
asserted for that particular breach, or any other breach
which occurred prior to the acceptance of the rent.

Id. This doctrine of waiver is based “on the ground that the landlord has an election.

He may choose whether he will declare the lease at an end and reenter at once, or

whether he will overlook the breach and let the lease remain in force.” Id. (quoting

Palmer v. City Livery Co., 98 Wis. 33, 34, 73 N.W. 559, 559 (1897)).

In the ordinary case, where a lease does not by its terms provide for automatic

renewal, this proposition is somewhat unremarkable. A landlord faced with a tenant

in breach of the lease may either terminate the lease immediately or forgive the

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breach. If the landlord instead elects not to renew the lease at the end of the lease

term, then the landlord has effectively chosen to forgive the breach. This is because,

where the lease would terminate anyway, the landlord is under no obligation to

continue to perform upon expiration of the lease—the contractual relationship

between the parties dissolves at the end of the lease term. The landlord has not taken

advantage of any “right to excuse or repudiate his own performance.” Wachovia Bank

& Tr. Co., N. A. v. Rubish, 306 N.C. 417, 426, 293 S.E.2d 749, 755 (1982). Thus, in

the ordinary case of a non-renewing lease, a landlord who knows that a tenant has

breached the lease and subsequently accepts rent from the tenant waives any right

to assert the breach in court. See, e.g., Fairchild Realty Co. v. Spiegel, Inc., 246 N.C.

458, 468, 98 S.E.2d 871, 878 (1957).

The case is different, however, if the lease would automatically renew at the

end of the lease term without a breach by the tenant. In that circumstance, a decision

not to renew the lease but also not to pursue immediate eviction does not amount to

forgiving the breach. Instead, the landlord has sought to address the tenant’s breach

by pursuing a remedy specifically laid out in the lease. In this case, the landlord does

not have to “choose whether he will declare the lease at an end and reenter at once,

or whether he will overlook the breach and let the lease remain in force.” Winder,

183 N.C. at 411, 111 S.E. at 709. Instead, the lease provides a third option:

suspending the lease’s automatic renewal provision and ending it at the completion

of the lease term. Of course, a landlord cannot make inconsistent elections. For

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example, once the landlord has chosen the remedy of nonrenewal, the landlord has

necessarily elected not to seek immediate eviction and cannot then “declare the lease

at an end and reenter at once.” Id. However, if nonrenewal of a lease is a remedy

specified in the lease in case of a tenant’s breach, then a landlord’s decision not to

pursue immediate eviction is not a waiver of the landlord’s right to terminate the

lease at the end of its term.

The lease agreement between WAH and Roberts automatically renewed each

year unless it was terminated pursuant to the lease terms. Under the lease terms,

WAH could only terminate the lease for specifically enumerated breaches of the lease

or other good cause. Therefore, WAH was required to renew the lease with Roberts

unless Roberts breached the lease in one of the ways specifically listed in the lease or

established other good cause for the lease’s termination. WAH’s acceptance of rent

and election to terminate the lease at the end of its term, then, could not be a waiver

of the breaches to which the termination was intended to respond.

WAH sent a letter to Roberts on 3 October 2016 notifying her that her lease

would terminate on 31 December 2016, the end of its then-effective term. The letter

specifically stated the lease provisions that WAH believed Roberts had violated and

stated specific examples of how she had violated those terms. Rather than seeking

to evict Roberts immediately, WAH gave her almost three months in which to

organize her affairs and find alternative housing, or to prepare her defense to

eviction, when the lease required notice of, at most, 30 days. On these facts, WAH’s

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acceptance of rent is not a waiver of its right to pursue a remedy specifically

contemplated in the lease agreement.

Termination of the lease and subsidy

Roberts’s lease and subsidy payments could only be terminated if WAH

complied with the applicable federal law. By its terms, the lease agreement required

that any termination of the lease by WAH “be carried out in accordance with HUD

regulations.” Paragraph four of the lease also incorporates “the time frames and

administrative procedures set forth in HUD’s handbooks, instructions and

regulations related to administration of multifamily subsidy programs” as those

sources relate to changes in the tenant rent or the subsidy payments. In addition to

administrative regulations, federal statutes provide tenants with protections that

must be followed. See, e.g., 42 U.S.C. § 3544(c)(2)(B) (2018) (prohibiting the

termination, denial, suspension, or reduction of public housing benefits unless proper

steps are followed). HUD regulations specify how much a tenant can be charged in

rent and when a lease can be terminated. See 24 C.F.R. § 880.6075 (2018) (lease

termination requirements for Section 8 Housing Assistance Payments for New

Construction); id. § 5.628 (calculation of total tenant payment from which is derived

5 It is not entirely clear from the record which specific Section 8 project-based
assistance program controlled Ms. Roberts’s housing arrangement. However, the programs
have similar requirements as they relate to the points discussed in this opinion. In any case,
the record would benefit from greater exploration of this issue on remand.

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tenant rent). It is clear, then, that WAH was only entitled to terminate Roberts’s

subsidy and lease in the event it acted in accordance with federal requirements.

The record contains no findings as to whether WAH complied with federal

requirements. The lease between WAH and Roberts specifies many reasons that the

lease may be terminated, but only two are relevant on the facts of this case: the lease

may be terminated for “[Roberts’s] material noncompliance with the terms of” the

lease, or it may be terminated “for other good cause.” If the trial court determines

that WAH did not waive the alleged breaches, the trial court must determine whether

the alleged breaches occurred, whether they meet the standards set out in the lease,

and whether WAH complied with federal law. Under the terms of the lease itself,

WAH may only “rely upon those grounds cited in the termination notice required by”

the lease.

Nonpayment of rent

The trial court entered its judgment, and the Court of Appeals affirmed that

judgment, on the basis that Roberts should be evicted for nonpayment of rent for

January 2017 and part of February 2017. This conclusion was erroneous.

First, and most straightforwardly, WAH cannot pursue this ground of eviction

under the terms of the lease. Under the lease’s terms, WAH can only pursue grounds

for eviction that are “cited in the termination notice required by” the lease terms. The

only such termination notice in the record issued prior to the filing of the summary

ejectment action on 5 January 2017 is the notice dated 3 October 2016. That notice

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stated that the lease was being terminated for “material noncompliance, based on

[Roberts’s] repeated lease violations which have disrupted the livability of the

property, adversely affected the health or safety of residents and staff, the peaceful

enjoyment of other residents to the property, and interfered with the management of

the property.” The notice makes no mention of nonpayment of rent. As a result,

without a lease-compliant notice that Roberts failed to pay rent in January 2017 and

part of February 2017, it cannot pursue eviction on this basis under the lease.

Second, it is unclear from the record what the basis is for the nonpayment of

rent allegation. Under the lease agreement between Roberts and WAH, Roberts paid

$139 per month in rent. WAH also received a payment from HUD pursuant to an

agreement between WAH and HUD. However, the rent amount paid by Roberts is

controlled by paragraph three of the lease agreement between WAH and Roberts.

Paragraph four of the lease agreement controls any changes to tenant rent. For

example, a change in the tenant’s rent requires “at least 30 days advance written

notice of any increase” except in certain circumstances, none of which apply to the

present case. Further, the lease agreement provides that WAH may change the

tenant’s “rent or tenant assistance payment only in accordance with the time frames

and administrative procedures set forth in HUD’s handbooks, instructions and

regulations related to administration of multifamily subsidy programs.” However,

the trial court made no findings of fact as to whether any change in the tenant rent

was made consistent with these requirements.

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Further, Roberts asserted in her answer to WAH’s amended complaint that

she tendered rent in the amount of $139 in January of 2017, and that the tender was

rejected by WAH’s property manager. WAH admitted in its reply that it refused

Roberts’s offer of payment. Whether Roberts tendered her rental payment and WAH

refused the offer is relevant to determining whether the landlord can evict for non-

payment of rent. See N.C.G.S. § 42-33 (2019); Hoover v. Crotts, 232 N.C. 617, 618, 61

S.E.2d 705, 706 (1950) (where tenant tenders rent due and landlord declines to

accept, landlord may not take possession for nonpayment of rent).

Roberts began paying a rent bond of $532 per month beginning in mid-

February of 2017. On the record before us, it appears that she has made the

payments consistently every month. If there was no change to tenant rent made

consistent with the terms of the lease, then Roberts’s rent under the lease remained

$139 per month. Therefore, Roberts would have more than satisfied any past-due

rent owed by April of 2017 at the latest. On the other hand, if the rent owed by

Roberts was effectively and properly changed to $532 per month, then Roberts would

not have already paid the rent owed for January 2017 and part of February 2017.

As a result, findings of fact are necessary as to WAH’s actions regarding the

termination of Roberts’s subsidy payments and related increase in her required

rental payments, and whether the lease terms and federal law were followed. As

these findings will necessarily bear on Roberts’s UDTP counterclaim, that

counterclaim would need to be reconsidered in light of these findings.

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 WINSTON AFFORDABLE HOUSING, LLC V. ROBERTS

Opinion of the Court

Conclusion

The Court of Appeals is reversed for the reasons explained above. The case is

remanded to the Court of Appeals for further remand to the District Court, Forsyth

County, for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Justice DAVIS did not participate in the consideration or decision of this case.

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 Justice NEWBY concurring in part and dissenting in part.

I concur with the majority’s ultimate holding in this case that the landlord did

not, by accepting rents during the notice period, waive the right to evict the tenant

for violations of the lease agreement. I disagree with the majority’s conclusion

regarding the viability of the tenant’s unfair and deceptive trade practices (UDTP)

claim. Instead, I agree with the determination of the Court of Appeals that the tenant

has alleged no injury and therefore cannot legally proceed on a UDTP claim. On this

issue, I respectfully dissent.

The district court concluded that the tenant did not present sufficient evidence

to establish a UDTP claim based on the termination of her rental subsidy. The Court

of Appeals affirmed the trial court, concluding that the tenant presented “insufficient

evidence in this case of an injury proximately caused by the alleged act or practice”

and thus failed to prove her claim. Winston Affordable Housing, LLC v. Roberts, No.

COA18-553, 2019 WL 2510879 at *4 (N.C. Ct. App. June 18, 2019) (unpublished). The

Court of Appeals correctly affirmed the trial court’s dismissal of the tenant’s UDTP

claim.

We review a dismissal under Rule 12(b)(6) de novo,
“view[ing] the allegations as true and . . . in the light most
favorable to the non-moving party.” Kirby v. N.C. DOT, 368
N.C. 847, 852, 786 S.E.2d 919, 923 (2016) (quoting
Mangum v. Raleigh Bd. of Adjust., 362 N.C. 640, 644, 669
S.E.2d 279, 283 (2008)). Dismissal is proper when the
complaint “fail[s] to state a claim upon which relief can be
granted.” Arnesen v. Rivers Edge Golf Club & Plantation,
Inc., 368 N.C. 440, 448, 781 S.E.2d 1, 7 (2015) (alteration
 WINSTON AFFORDABLE HOUSING, LLC V. ROBERTS

Newby, J., concurring in part and dissenting in part

in original) (quoting N.C.G.S. § 1A-1, Rule 12(b)(6) (2013)).
“When the complaint on its face reveals that no law
supports the claim . . . or discloses facts that necessarily
defeat the claim, dismissal is proper.” Id. at 448, 781 S.E.2d
at 8 (citing Wood v. Guilford County, 355 N.C. 161, 166, 558
S.E.2d 490, 494 (2002)).

Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5, 802 S.E.2d 888, 891 (2017)

(alterations in original).

“Unfair methods of competition in or affecting commerce, and unfair or

deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C.G.S.

§ 75.1.1(a) (2019). “In order to establish a prima facie claim for unfair trade practices,

a plaintiff must show: (1) [the] defendant committed an unfair or deceptive act or

practice, (2) the action in question was in or affecting commerce, and (3) the act

proximately caused injury to the plaintiff.” Bumpers v. Cmty. Bank of N. Virginia,

367 N.C. 81, 88, 747 S.E.2d 220, 226 (2013) (alterations in original) (quoting Dalton

v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001)). Here, even if we assume the

landlord committed an unfair and deceptive trade practice, the tenant is unable to

show that the action caused injury. Therefore, dismissal is proper.

The tenant has continuously remained in the apartment; thus, she has not

been injured by eviction. Based on the evidence presented, the magistrate set the

amount of rent at the market rate of the apartment with the money to be paid to the

clerk of court, and the district court denied the tenant’s motion to reduce it. The

tenant began making those payments beginning 24 February 2017. If, on remand,

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 WINSTON AFFORDABLE HOUSING, LLC V. ROBERTS

Newby, J., concurring in part and dissenting in part

the trial court determines that the rent bond amount exceeds the actual rent she

owed, the money will be returned. Therefore, the trial court properly dismissed the

UDTP claim for failing to allege an injury. I respectfully dissent.

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