BSA 77 P STREET LLC v. Hawkins

THOMPSON, Associate Judge,

concurring:

I write separately to address the issue discussed in section B of the court’s opinion, relating to whether the trial court erred in finding that the notice to vacate that BSA gave tenants in reliance on D.C.Code § 42-3505.01® (2001) was invalid. Section 42-3505.01© permits a housing provider to “recover possession of a rental unit for the immediate purpose of discontinuing the housing use and occupancy of the rental unit” so long as specified conditions are met. One condition is that, in advance of recovering possession, the housing provider must serve on the tenant a 180-day notice to vacate. Id., § 42-3505.01(i)(1)(A). There seems to be no dispute that BSA did that here. Another condition is that the housing provider must leave the rental unit idle for a continuous 12-month period after the housing use is discontinued; during that 12-month period, the unit may neither be renovated, nor used for housing, nor put to commercial use. Id., §§ 42-3505.01(i)(1)(B)-(C). There seems to be no dispute that BSA complied with the 12-month restriction (except that appellees refused to vacate and remained in their rental units). In addition, section 42-3505.01(i)(l)(D) provides that “[t]he housing provider shall not resume any housing use of the unit other than rental housing.” This is the provision with which appellees contend BSA failed to comply.

BSA’s announced intent and the path that it pursued was to require tenants to vacate, leave the rental units idle for twelve months, and thereafter renovate the units and sell them for use as owner-occupied homes. That plan and course of conduct, appellees contend and the trial court found, sufficed to show that BSA did not actually plan to discontinue housing use of the rental units, but instead planned to resume a housing use other than rental housing. This court’s opinion adopts a similar interpretation, concluding that “BSA seeks to avoid the plain meaning of *998the statute by using a third party to do what it was not allowed to do itself: use the property for non-rental housing.” Slip op. at 15 (italics added). The opinion also concludes that BSA’s “proffered intention ... runs contrary to the purpose of the statute,” which is to “protect the existing supply of rental housing from conversion to other uses.” D.C.Code § 42-3501.02 (2001).

BSA argues that while the statute places “restrictions on the nature of the ‘housing use’ a ‘housing provider’ may pursue in the future,” the restrictions do not apply here because BSA itself would not be resuming any housing use of appellees’ units; rather, once BSA sells the units, it would no longer be a housing provider and would not run afoul of the restriction that “[t]he housing provider shall not resume any housing use of the unit other than rental housing.” D.C.Code § 42-3505.01(i)(l)(D) (italics added). BSA argues further that there is no indication that the D.C. Council, intended to impose a “restraint on alienation” of property so draconian as to permit a landlord to exit the rental housing business and retire1 only if the landlord already had in hand a third-party purchase contract that would permit the landlord to proceed instead under D.C.Code § 42-3505.01(e) (2001).

Ultimately, I agree with the majority that BSA did not satisfy the conditions of section 42 — 3505.01(i), but I am not comfortable arriving at that conclusion by looking merely at the statement of legislative purpose in section 42-3501.02 and at section 42-3505.01. Although the clear purpose of the statute as declared in section 42-3501.02 is to protect the rental housing stock, in my view that does not assist us in interpreting section 42-3505.01(i)(l)(D), the task at hand. There seems to be no dispute that section 42-3505.01(f) would have permitted BSA to give tenants the required notice to vacate, leave the units unused for 12 months, and then sell them for non-housing, commercial use.2 Since section 42-3505.01(i) permits erosion of the rental housing stock, in my view we do not arrive at a reliable answer to the question about whether the sales that BSA actually accomplished or contemplated were consistent with section 42-3505.01(i)(l)(D) by asking whether the end result is protection (instead of depletion) of the supply of rental housing.

Nor, in my view, does the “plain language” of section 42-3505.01© dictate that we interpret section 42-3505.01(i)(l)(D) (“The housing provider shall not resume any housing use of the unit other than rental housing”) (italics added) to mean not only that BSA itself may not resume a housing use of the units other than rental housing, but also that BSA may not sell to at third party who intends to put the property to a housing use other than rental housing. That would be the plain meaning if, for example, section 42-3505.01(i)(l)(D) said that “no housing provider” (or, “no person”) “shall resume any housing use of the unit other than rental housing.” Such broad language is used in D.C.Code § 42-3505.01(d) (2001) (providing that “[a] natural person with a freehold interest in the rental unit may recover possession of a rental unit where the person seeks in good *999faith to recover possession of the rental unit for the person’s immediate and personal use and occupancy as a dwelling,” and that “[n]o housing provider shall demand or receive rent for any rental unit which the housing provider has repossessed under this subsection during the 12-month period beginning on the date the housing provider recovered possession of the rental unit.” (italics added)); and in D.C.Code § 42-3505.01(e) (providing that “[a] housing provider may recover possession of a rental unit where the housing provider has in good faith contracted in writing to sell the rental unit or the housing accommodation in which the unit is located for the immediate and, personal use and occupancy by another person,” and that “[N]o person shall demand or receive rent for any rental unit which has been repossessed under this subsection during the 12-month period beginning on the date on which the rental unit was originally repossessed by the housing provider.” (italics added)). I make a similar observation about the contrast between the D.C. Council’s use of language in section 42-3505.01 (i)(1)(B) {“The housing provider shall not cause the housing accommodation, of which the unit is a part, to be substantially rehabilitated for a continuous 12-month period beginning from the date that the use is discontinued under this section”) and the more direct language it used in section 42-3505.01(i)(1)(D) (“The housing provider shall not resume ... ”). These provisions suggest that the Council — when it meant to do so — knew how to phrase the statute to assure that provisions that permit a landlord to withdraw a property from the rental market for specified reasons also bar anyone else from using the property in a manner that circumvents the protections the Council intended.3

However, what does persuade me that BSA’s plan failed to comply with section 42-3505.01© is the language in a different section of the Rental Housing Act — specifically, D.C.Code § 42-3507.01 (2001).4 Section 42-3507.01 provides that

No housing provider shall substantially rehabilitate, demolish, or discontinue any housing accommodation unless there has first been served upon each tenant residing in the housing accommodation a written notice of intent to rehabilitate, demolish, or discontinue the housing accommodation in accordance with § 42-3505.01(f), (g), (h), or (i), as appropriate. The notice shall advise the tenants of their right to relocation assistance under this chapter or any other District law, and the procedures for applying for the assistance. The Rental Housing Commission shall prescribe the content of the notice. No tenant may be evicted from a housing accommodation which the housing provider intends to substantially rehabilitate, demolish, or discontinue housing use, or which the housing provider intends to sell to another person ivho, to the housing provider’s *1000knowledge, intends to substantially rehabilitate, demolish, or discontinue housing use, unless the requirements of this section have been met. Nothing contained in this section shall be construed to limit a housing provider’s right to evict a tenant for nonpayment of rent or violation of an obligation of the tenancy, if the action to evict is in compliance with § 42-3505.01.

D.C.Code § 42-3507.01 (italics added). This provision requires a housing provider who intends to sell a rental unit to another person who the housing provider knows intends to discontinue housing use of the unit to comply with the requirements of section 42-3505.01®. In other words, section 42-3507.01 requires an interpretation that a housing provider discontinues housing use of a rental unit if the housing provider intends to sell the unit to another person who the housing provider knows will discontinue housing use. By logical extension, section 42-3507.01 can fairly be read to imply as well that a housing provider resumes housing use of a unit if the housing provider intends to sell the units to another person who the housing provider knows will resume housing use. Section 42-3507.01 thus supports an interpretation that if an intended purchaser of a rental unit that a housing provider withdraws from the rental market pursuant to section 42-3505.01 will put the former rental unit to a housing use other than rental housing, that action may be attributed to the housing provider, if the housing provider knows that this is the purchaser’s intent. This precisely describes BSA’s position, according to BSA’s announced plans. Accordingly, having followed this somewhat tortuous path to its logical conclusion, I am comfortable agreeing with the majority that, in light of BSA’s announced plans, it did not satisfy the requirements of D.C.Code § 42-3505.01(i) (1 )(D).

. Appellants' brief cites testimony that the managing member of BSA wanted to “leave the rental market, wind up the venture and retire.” (Appellants’ Brief at 7 n. 3.)

. Moreover, as the court's opinion notes, when BSA eventually began selling the rental units, it offered them for sale to tenants under the Tenant Opportunity to Purchase Act (see D.C.Code §§ 42-3401.01 to 42-3404.13 (2001)), another course that is permissible under section 42-3505.01 (specifically, section 42-3505.01 (e)) and that likewise results in depletion of the rental housing stock.

. Cf. Tangoren v. Stephenson, 977 A.2d 357, 360 n. 12 (D.C.2009) (applying the “usual rule that when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended”) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)) (quoting 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 46:06 (6th rev. ed. 2000)).

. Consideration of section 42-3507.01 as an aid to interpreting section 42-3505.01(f)(1)(D) is consistent with "the familiar maxim of statutory interpretation that counsels us to consider the statute as a whole, and, if possible, discern an interpretation that will harmonize and accord full force and effect to all of its provisions, without rendering any part meaningless.” In re Jacoby, 945 A.2d 1193, 1198 (D.C.2008).