463 F.2d 853, 868 (D.C. Cir. 1972)
On May 2, 1968, Lena Robinson and her four children moved into a row house owned by Diamond Housing Corporation in Northwest Washington and signed a month-to-month lease with the apparent understanding that the landlord would repair the deteriorating condition of the premises.1 When the landlord failed to make repairs, Robinson began withholding rent, prompting Diamond Housing to sue for possession in L&T No. 62391-68.2 Robinson defended on the ground that substantial housing code violations existed at the time the lease was signed.3 She introduced evidence of missing plaster, an unsafe front porch, a moving bedroom wall, protruding nails, a missing window pane, and a misaligned kitchen window frame.4 At the close of trial the jury returned a special verdict finding that housing code violations existed at the inception of the lease rendering the premises unsafe and unsanitary, and the trial court entered judgment for Robinson.5
Diamond Housing then filed a second suit claiming that the void lease made Robinson a trespasser no longer entitled to possession.6 The trial court dismissed the action, and the District of Columbia Court of Appeals affirmed.7 It held that Robinson had become a tenant at sufferance whose tenancy could be terminated by thirty days' notice.8 The court added that the landlord, if unwilling or unable to put the property in habitable condition, could terminate the tenancy and withdraw the property from the rental market.9
Seizing on that language, Diamond Housing served a thirty-day notice to quit and instituted a third possession action.10 It supported the suit with an affidavit from its vice president stating that it was unwilling to make the necessary repairs and presently intended to take the unit off the rental market.11 In defense Robinson asserted that the eviction was retaliatory for her successful assertion of housing code violations in the prior actions.12 On this record the trial court granted Diamond Housing's motion for summary judgment.13 The judge observed that a jury would likely find retaliatory motive yet still concluded that the defense could not be entertained.14
While the appeal to the District of Columbia Court of Appeals was pending, Robinson vacated the premises.15 The parties disputed whether her departure was caused by the unremedied code violations or by her own failure to pay heating bills that resulted in frozen pipes.16 The District of Columbia Court of Appeals affirmed the summary judgment on the merits.17 It held that the retaliatory defense was unavailable as a matter of law when the landlord wished to withdraw the property from the rental market.18 Robinson appealed, and the United States Court of Appeals for the District of Columbia Circuit granted leave to appeal the judgment.19
Whether a tenant may assert a retaliatory eviction defense when a landlord serves a 30-day notice to quit after the tenant successfully defended a prior possession action by establishing housing code violations at the inception of the lease?20
Under Edwards v. Habib and Housing Regulations § 2910, a landlord may not evict a tenant in retaliation for the tenant's good faith assertion of rights under the housing regulations, including the right to assert a Southall Realty defense that voids a lease due to code violations existing at inception.21
Yes. Robinson successfully asserted the Southall Realty defense in the first action by introducing evidence of missing plaster, an unsafe porch, a moving wall, protruding nails, a missing window pane, and a misaligned kitchen window frame, resulting in a jury verdict that the premises were unsafe and unsanitary at lease inception.22 Diamond Housing then served the 30-day notice and filed the third action.23 The court applies the Edwards principle because the housing code protects assertion of such rights through private remedies and expressly prohibits retaliatory evictions for good faith assertion of rights under Sections 2901 or 2902.24
A tenant may assert the retaliatory eviction defense in these circumstances.25
Related opinions on this issue
Judge Robb dissents on several grounds.26 This controversy between a landlord and a tenant is peculiarly a local matter that Congress has confided to the local courts.27 He maintains that the landlord's uncontradicted affidavit stating unwillingness to repair and intent to withdraw the unit from the market creates no material issue of fact as to motive.28
Judge Robb rejects any presumption that such an action is illicit.29 He argues that the majority's approach improperly subjects landlords to jury oversight of business decisions.30 In his view, the majority's Draconian treatment of landlords will inevitably discourage investment in housing for rental purposes.31
Whether a landlord's affidavit stating unwillingness to make repairs and intent to withdraw the property from the rental market precludes assertion of a retaliatory eviction defense?32
A landlord's affidavit asserting unwillingness to repair and intent to withdraw the unit from the market does not preclude a retaliatory eviction defense.33 The defense turns on subjective motive.34 The landlord must rebut the presumption of illicit motive arising from an unexplained eviction following a successful Southall Realty defense by showing a legitimate business justification other than the desire to remove a nonpaying tenant.35
No. Diamond Housing supported its summary judgment motion with an affidavit from its vice president stating unwillingness to make repairs and intent to take the unit off the market.36 The court holds that this allegation is legally insufficient for summary judgment because motive remains a jury question.37 Even an assertion of inability to repair does not automatically justify eviction.38 The jury must weigh whether the landlord was in fact motivated by a desire to punish Robinson for exercising her rights rather than by a legitimate business purpose.39
A landlord's affidavit stating unwillingness to make repairs and intent to withdraw the property from the rental market does not preclude assertion of a retaliatory eviction defense.40
Related opinions on this issue
Judge Robb dissents on several grounds. This controversy between a landlord and a tenant is peculiarly a local matter that Congress has confided to the local courts. He maintains that the landlord's uncontradicted affidavit stating unwillingness to repair and intent to withdraw the unit from the market creates no material issue of fact as to motive.
Judge Robb rejects any presumption that such an action is illicit. He argues that the majority's approach improperly subjects landlords to jury oversight of business decisions. In his view, the majority's Draconian treatment of landlords will inevitably discourage investment in housing for rental purposes.
Whether a tenant's departure from the premises during the pendency of the appeal renders the controversy moot when the parties dispute the cause of the departure?41
A tenant's departure does not render the controversy moot if the departure was caused by the landlord's failure to remedy code violations, because such failure would constitute a constructive eviction.42 However, voluntary relinquishment of possession ends the case when the landlord makes no claim for back rent.43
No. Robinson vacated the premises while the appeal was pending, with the parties disputing whether her departure resulted from unremedied code violations or from her own failure to pay heating bills that caused frozen pipes.44 The court holds that the case remains justiciable if code violations caused the departure, because Diamond Housing cannot rely on its own wrongful conduct to moot the controversy over legal possession.45 The trial court must resolve the factual dispute on remand before proceeding to trial on the retaliatory eviction issue or vacating the judgment.46
A tenant's departure from the premises during the pendency of the appeal does not render the controversy moot when the parties dispute the cause of the departure.47