2 NICS App. 154, Puyallup Nation Housing Auth. v. Miles (December 1991)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

Puyallup Nation Housing Authority v. David Miles

Civil Case No. 91-2267 (December 9, 1991)

SUMMARY

The Puyallup Nation Housing Authority (Housing Authority) commenced an unlawful detainer action against David Miles, citing delinquent rent and other violations of the lease agreement as grounds for eviction. However, the Puyallup Tribal Appellate Court refused to permit eviction for the following reasons. First, in its Notice of Delinquent Rent, the Housing Authority failed to inform Miles of his right to make a reply and to request a hearing, as required under the termination provisions of the lease agreement. Secondly, the Housing Authority failed to establish unlawful occupancy under the terms of the Tribe's Eviction Procedures Ordinance, which, like the lease agreement, requires that tenants be notified of their right to reply and to have a hearing, unless a thirty-day Notice of Unlawful Occupancy is given. Miles was given only a twenty-one-day notice of eviction by the Housing Authority.

A third problem with the adequacy of the eviction process was that the Summons and Complaint served on Mr. Miles did not meet the special summons requirements of the Eviction Procedures Ordinance. The Ordinance requires that the Tribal Court judge, in issuing the Summons, find that the tenant has committed an act of unlawful occupancy. But the Housing Authority's Failure to establish unlawful occupancy under the terms of the Eviction Procedures Ordinance left the court with no legal basis upon which to make this finding. Thus, even though there may have been good cause for terminating Mr. Miles' lease agreement, eviction could not be permitted because mandatory procedures designed to protect the rights of tenants were not followed with exactitude.

FULL TEXT

Before:

Chief Justice John Roe, Associate Justice Emma Dulik, and Associate Justice Charles R. Hostnik.

2 NICS App. 154, Puyallup Nation Housing Auth. v. Miles (December 1991) p. 155

DECISION AND ORDER ON APPEAL

HOSTNIK, Associate Justice:

This case commenced as an unlawful detainer action. The Puyallup Nation Housing Authority filed a complaint against David Miles for failure to pay rent which was due on May 1, 1991. A Notice of Delinquent Rent was sent by the Housing Authority to Mr. Miles on May 6, 1991. At that point, Mr. Miles was two months behind in rent payments. The Notice of Delinquent Rent gave Mr. Miles until May 28 to pay the balance then due, or eviction procedures would be started through the Tribal Court. Mr. Miles did not respond to the Notice of Delinquent Rent, so the Housing Authority commenced this action on May 31, 1991.

After suit was filed, the Housing Authority discovered that Mr. Miles had allegedly failed to report income from a construction job. Prior to occupancy Mr. Miles signed an Applicant/Tenant's Certification document, which acknowledged his responsibility to report immediately in writing any changes in income. A tenant's monthly rent is based in part upon income of the tenant. The trial court found that Mr. \Miles, by waiting twenty-one days, did not immediately report a change in income to the Housing Authority as required by the Applicant/Tenant's Certification. There is evidence in the record to support this determination of the trial judge.

Because of these clear breaches of the lease agreement by Mr. Miles, the Housing Authority was entitled to terminate his tenancy. The Dwelling Unit Lease, signed on October 1, 1990, must be read in conjunction with the Evictions Procedures Ordinance of the Puyallup Tribe. Taken together, the Lease and Ordinance specify the steps that must be taken to lawfully terminate a tenant's Dwelling Unit Lease.

LEASE TERMINATION PROVISIONS

Section XI of the Dwelling Unit Lease is entitled "Termination of the Lease." A portion of that section provides as follows:

Management shall not terminate or refuse to renew this Lease Agreement other than for serious or repeated violation of material terms of the Lease, such as: Failure to make payments due under this Lease or to fulfill Tenant obligations set forth in this Lease....Management shall give written notice of termination of the Lease in the following manner:

A. Fourteen days in the case of failure to pay rent.

B. One (1) month or thirty (30) days, whichever is longer, in all other cases.

The Notice of Termination to Tenant shall state the reason for the termination, shall inform Tenant of Tenant's rights to

2 NICS App. 154, Puyallup Nation Housing Auth. v. Miles (December 1991) p. 156

make such reply as Tenant may wish and of Tenant's right to request a hearing in accordance with Management's Grievance Procedure.

The Housing Authority based this eviction action upon the Notice of Delinquent Rent dated May 6, 1991. That Notice gave Mr. Miles until May 28 to pay the balance due. The Housing Authority was charitable in giving Mr. Miles more than fourteen days notice, as is required under the lease provision quoted above. Mr. Miles in fact had twenty-one days notice. Service of the Notice to Mr. Miles was made by mail, properly addressed, postage prepaid. Although it would be preferable to provide notice in a manner that allows the Housing Authority to prove that notice was in fact received by the tenant, service by mail is an authorized method of providing notice to a party under the terms of Section X of the Dwelling Unit Lease.

The Notice clearly states that the tenant is delinquent in rental payments. However, an error occurs on the face of the Notice in that the rent specified due is $206 per month. In fact, the rent charged Mr. Miles was only $103 per month. This error is deemed harmless, however, because Mr. Miles knew or should have known that he was behind two months in rent. The Housing Authority should take care that in the future all notices provided to tenants correctly state the amount of the monthly rent due, and the months for which rent has not been paid.

The May 6 Notice of Delinquent Rent does not, however, inform the tenant of the tenant's right to make a reply, and does not inform the tenant of the tenant's right to request a hearing before the Board of Commissioners of the Housing Authority. Therefore, the Notice does not comply with Section XI of the Dwelling Unit Lease. The May 6 Notice is inadequate and cannot be a basis for eviction proceedings.

NOTICE UNDER EVICTION PROCEDURES ORDINANCE

The Eviction Procedures Ordinance of the Puyallup Tribe provides two methods to proceed with an eviction action. First, under Chapter IV(A) a tenant is deemed to have committed an act of Unlawful Occupancy, without any requirement that a Notice of Unlawful Occupancy be served, if the person continues in occupancy of real property under one of three situations. The first two situations address expiration of the term of a lease or other agreement, and if a person has entered onto or remains on real property of another without permission and without having any substantial claim of a lease or title to the property. Neither of these two situations apply to this case.

The third situation does relate to this case. No Notice of Unlawful Occupancy is required if the Puyallup Nation Housing Authority has terminated the person's tenancy pursuant to Puyallup Nation Housing Authority procedures, which specifically include providing the person a hearing before the Housing Authority. See Eviction Procedures Ordinance, IV (A)(3). The Housing Authority did attempt to terminate Mr. Miles' tenancy pursuant to the terms of the Lease. However, their attempt to follow

2 NICS App. 154, Puyallup Nation Housing Auth. v. Miles (December 1991) p. 157

the lease procedures was unsuccessful. Mr. Miles was not notified of his right to reply to the Notice of Delinquent Rent, nor was he notified of his right to a hearing before the Housing Authority. Therefore, this eviction cannot proceed under Chapter IV(A) of the Eviction Procedures Ordinance.

Under Chapter IV(B) of the Eviction Procedures Ordinance, a Notice of Unlawful Occupancy is required. This section requires a thirty-day notice of unlawful tenancy in four situations: (1) default in the payment of rent, (2) termination of a month-to-month lease for an unspecified term, (3) failure to perform lease conditions, and (4) committing waste or maintaining a nuisance upon the property. Any of the first three conditions arguably apply to this case, but the Housing Authority failed to provide thirty days notice. Therefore, Chapter IV(B) of the Eviction Procedures Ordinance is not satisfied, and the eviction cannot proceed.

SPECIAL SUMMONS MUST BE USED

The Eviction Procedures Ordinance also specifies that a special form of Summons must be used in eviction cases. The Summons must specify the trial date assigned to the eviction action. That trial date is required to be not less than 6 nor more than thirty days from the date of service of the Summons and Complaint. The Summons is also required to notify the defendants that the judgment requested in the Complaint will be issued against them unless they file an answer with the Court and appear for trial at the time, date and place specified in the Summons. The Summons issued in this case did not comply with these requirements.

The Eviction Procedures Ordinance requires the Tribal Court judge to enter an Order of Eviction if the provisions of Chapter VII(A)(1, 2, and 3) are met. The Court is given no discretion by the Ordinance. If those conditions are met, an Order of Eviction is required to be entered. If, however, all of those conditions are not met, then the Court has no authority to order eviction of the tenant.

The first condition is that notice of the eviction action and trial date is given by service of a Summons and Complaint in accordance with the procedure provided for in the Ordinance. Eviction Procedures Ordinance VII(A)(1). The Summons issued in this case did not comply with Chapter VI(A)(2) of the Ordinance. Therefore, the trial court had no authority to enter an Order of Eviction.

Section VII (A)(2) requires the Court to find that the tenant committed an act of unlawful occupancy. If the Housing Authority fails to follow the procedures specified in Section IV of the Ordinance, then the tenant cannot be guilty of unlawful occupancy, despite failure to pay rent.

Under Section VII (A)(3), the Tribal Court must find "that no substantial right of the tenant accorded by the Puyallup Nation Housing Authority policies or the Indian Civil Rights Act has been violated by the Puyallup Nation Housing Authority in the procedure leading to the filing of the

2 NICS App. 154, Puyallup Nation Housing Auth. v. Miles (December 1991) p. 158

Unlawful Occupancy complaint." As noted above, the May 6 Notice provided by the Housing Authority did violate substantial rights of the tenant accorded by Housing Authority policies. This also prohibits the Tribal Court from entering an Order of Eviction.

There is no doubt in this case that Mr. Miles was behind in rent payments, and that good cause existed to terminate the Lease Agreement. However, the terms of the Lease itself, as well as the provisions of the Tribe's Eviction Procedures Ordinance, specify a procedure which must be followed before this Court is authorized to enter an Order of Eviction. That procedure is designed to give the tenant notice of each of his or her rights, and allow the tenant an opportunity to pay the delinquent rent or cure any other condition which leads to termination of the lease. It is the responsibility of the Housing Authority to provide notice which adequately advises the tenant of his or her rights under the Lease Agreement and under the Eviction Procedures Ordinance. Both the Lease and the Ordinance make these procedures mandatory in nature. Each step must be followed exactly, or the eviction is not permitted to proceed.

The Housing Authority is to be commended for attempting to work with Mr. Miles. Mr. Miles has only paid rent on time for two months during the course of his tenancy. For the four months which preceded this eviction action, Mr. Miles was consistently at least one month behind in rent payments. Mr. Miles stated that he was not aware of the serious nature of this action, and was not aware that he could lose his house as a result of failure to pay rent. Regardless of whether this court believes those statements, it is hoped that Mr. Miles is now aware that he is subject to eviction if he does not pay his rent by the first of each and every month.

ROE, Chief Justice, and DULIK, Associate Justice, concur.