3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Tulalip Housing Authority v. Alcombrack

No. TUL-Ci-2/94-277 (July 29, 1994)

SUMMARY

Appeal by Homebuyer of Writ of Restitution issued by Trial Court restoring house to Tulalip Housing Authority due to default in rent. Court of Appeals reversed on grounds that THA failed to provide proper notice of termination as required under the Mutual Help and Occupancy Agreement. Appellate Court ruled that tenant has property interest in housing which triggers ICRA due process protection.

FULL TEXT

Before:   Chief Justice Elbridge Coochise, Associate Justice Charles R. Hostnik and Associate Justice Rose Purser.

Appearances:  Cindy Alcombrack, Appellant; Christina Berg, attorney for Respondent, Tulalip Housing Authority.

NATURE OF THE ACTION

Tulalip Housing Authority brought an action against Appellant Homebuyers for failure to pay rent and failure to abide by terms of a payback agreement. Both parties had signed a Mutual Help and Occupancy Agreement, which contained specific requirements regarding notice of termination. The Trial Court entered an Order of Eviction and a Judgment for back rent owed. Appellants appeal the Trial Court's decision.

HOSTNIK, Associate Justice:

This order comes before us on an appeal filed by Homebuyers, Chad and Cindy Alcombrack, against the Tulalip Housing Authority, following an Order of Eviction and Judgment for back rent owed.

On July 17, 1991, the Alcombracks entered into a Mutual Help and Occupancy Agreement with the Tulalip Housing Authority. The Tulalip Housing Authority was the owner

3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994) p. 321

of the house, subject to the terms of that Mutual Help and Occupancy Agreement. The house is located within the boundaries of the Tulalip Indian Reservation in Marysville, Washington.

Chad and Cindy Alcombrack failed to pay rent for the months of April, 1993, through February, 1994. In addition, damage was caused to the house by the Homebuyers in the amount of $321.69. This was apparently for damage to several windows in the home which were broken. The Housing Authority repaired that damage, and the Homebuyers entered into a Payback Agreement on June 25, 1993, agreeing to repay the amount of the damage by adding $54 per month to the monthly rent owed, commencing July 1, 1993.

At trial it was not disputed that the Homebuyers were behind in rent payments and in default under the terms of the Payback Agreement. Based on this undisputed evidence, the trial court granted the relief requested by the Housing Authority. Judgment was entered against the Homebuyers in the amount of $1,688.43, the Mutual Help and Occupancy Agreement was terminated, and the Clerk of the Court was directed to issue a Writ of Restitution, without bond, to deliver possession of the premises to the Housing Authority. Judgment was entered on March 17, 1994.

A Notice of Appeal was filed on March 28, 1994, and the appeal hearing was conducted on June 20, 1994.

Issues Raised on Appeal

A number of issues have been raised by the Homebuyers on appeal. However, in light of our decision in this case, we do not need to reach the merits of each of those issues.

However, we must point out that the Housing Authority clearly had grounds to terminate the tenancy of the Homebuyers, in light of the undisputed fact that the Homebuyers were in default in monthly payments due the Housing Authority. The Housing Authority attempted to work with the Homebuyers by entering into a Payback Agreement to collect the window damage cost over time, rather than in a single lump sum. The Housing Authority was not required to be so accommodating. The Tulalip Housing Authority should be commended for its efforts in working with these Homebuyers.

Basis for Termination of MHO

The relationship between the parties in this case is governed by the terms of the Mutual Help and Occupancy Agreement signed by both parties on July 17, 1991. Under the terms of that MHO Agreement, the Homebuyers are required to make monthly payments to continue their occupancy of the home. MHO Agreement, p.11, Article IV.

In addition, Homebuyers are responsible for all maintenance of the home, including repairs and replacements. The Tulalip Housing Authority is not obligated to pay for or provide any maintenance to the home other than the correction of warranty items during the applicable

3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994) p. 322

warranty period. MHO Agreement, P.13, Section 5.2(a). Failure of the Homebuyer to perform their maintenance obligations is a breach of the MHO Agreement.

If the Homebuyer enters into a Payback Agreement to cover the cost of repairs for which the Homebuyer is responsible, but which are completed by the Housing Authority, and the Homebuyer fails to make the payments due under the terms of that Agreement, the Agreement must be terminated. MHO Agreement, p. 13, Section 5.2(b)(1).

Required Termination Notice

The MHO Agreement has a specific section regarding termination. In the event the Homebuyer failed to comply with any obligations under the Agreement, the Housing Authority may terminate the Agreement. MHO Agreement, p. 25, Section 9.1. Termination of the Agreement for any reason is to commence with written notice, which must contain six items of information for the Homebuyer:

9.2      Notice of Termination of Agreement by IHA; Right of Homebuyer to Respond. Termination of this Agreement by the IHA for any reason shall be by written Notice of Termination. Such notice shall state (a) the reason for termination; (b) that the Homebuyer may respond to the IHA in writing or in person within a specified reasonable period of time regarding the reason for termination; (c) that in such response he may be represented or accompanied by a person of his choice, including a representative of the tribal government; (d) that the IHA will advise the tribal government concerning the termination; (e) that if, within 30 days after the date of receipt of the Notice of Termination, the Homebuyer presents to the IHA evidence or assurances satisfactory to the IHA that he will cure the breach and continue to carry out his MHO obligations, the IHA may rescind or extend the Notice of Termination; and (f) that unless there is such a recision or extension, the lease term and this Agreement shall terminate on the 30th day after the date of receipt of the Notice of Termination. The IHA may, with HUD approval, modify the provisions of the Notice of Termination relating to the procedures for presentation and consideration of the Homebuyer's response. In all cases the IHA's procedures for termination of this Agreement shall afford a fair and reasonable opportunity to have the Homebuyer's response heard and considered by the IHA. Such provisions shall comply with the Indian Civil Rights Act.

MHO Agreement, p. 25, section 9.2

3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994) p. 323

The language of Section 9.2 mandates what must be included in the written Notice of Termination. Section 9.2 requires that the termination procedure begin with this written Notice of Termination. Without a Notice of Termination containing the six required items of information, the MHO Agreement cannot be terminated.

No Evidence of Compliance Before Us

The Housing Authority in oral argument on appeal assured us that a written Notice of Termination was given to the Homebuyer in this case. However, that Notice of Termination was not made a part of the record in this case. That Notice of Termination was not even mentioned at trial of this case. We therefore cannot determine whether the written Notice of Termination allegedly given to the Homebuyer complied with the required provisions of Section 9.2 of the MHO Agreement.

This Court has reviewed all of the exhibits and notices to the Homebuyer which are contained in the record, to see if the required elements of notice under Section 9.2 of the MHO Agreement are contained in any of those documents. The only two relevant documents are Exhibit 1 (the 14-day Notice to Pay Rent or Vacate), and Exhibit 6 (the Payback Agreement).

Exhibit 1 is fatally flawed. Section 9.2(a) requires a written notice of termination to state the reason for termination. It is questionable whether the 14-day notice complies with this requirement. That notice merely says that rent is now due and payable in a certain sum. It does not indicate that rent for specified months was unpaid.

Section 9.2(b) indicates that the Homebuyer is to be notified that he or she may respond to the Indian Housing Authority regarding the reason for termination. If no specific reason for termination is indicated, a Homebuyer cannot respond.

Section 9.2(c) requires the Homebuyer to be notified that if he responds to the reason for termination, the Homebuyer may be represented or accompanied by a person of his choice, including a representative of the Tribal government. This notice is not contained in Exhibit 1.

Section 9.2(d) requires the Housing Authority to advise the Homebuyer that Tribal government will be notified concerning the termination of the MHO Agreement. This notice is also not contained in Exhibit 1.

Finally, and perhaps most importantly, Sections 9.2(e) and (f) require the Housing Authority to notify the Homebuyer that he has 30 days from the date of receipt of the Notice of Termination to cure the breach (Section 9.2(e)), and that the MHO Agreement will terminated on the 30th day after the date of receipt of the Notice of Termination (Section 9.2(f)). Exhibit 1 only provides the Homebuyer 14 days to pay the rent in arrears.

The Payback Agreement (Exhibit 6) is not a Notice of Termination at all. In fact, it is an agreement whereby the Housing Authority permits the Homebuyer to continue to occupy the

3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994) p. 324

premises upon certain conditions. It requires the Housing Authority, by its own terms, to take further action to terminate the tenancy if the Homebuyer breaches the terms of the Payback Agreement. Therefore, the Payback Agreement itself is not an appropriate vehicle to commence the termination of a tenancy.

Regardless of the basic intent of the Payback Agreement, it contains a provision that indicates that if the agreement is violated, the Tulalip Housing Authority will issue a 14-day notice "to comply with the lease or quit the premises" and that the Housing Authority will file a civil complaint with the court for eviction if the Homebuyer does not comply with the 14-day notice. There is nothing on the Payback Agreement that complies with any of the six subsections of Section 9.2 of the MHO Agreement.

It is the Housing Authority's burden to demonstrate that they terminated the Agreement in an appropriate manner. In view of the mandatory requirements of Section 9.2, no termination will be valid or effective without evidence of a written Notice of Termination which complies with the requirements of Section 9.2. Therefore, we have a failure of proof in this case, which requires the Court to reverse the trial court decision and reinstate Chad and Cindy Alcombrack's occupancy under the MHO Agreement.

Due Process Rights Impacted

The importance of this decision needs to be underscored. The Court's decision is based upon a failure of documented notice to the Homebuyer. The Homebuyer has an important property right which is being taken away by the Housing Authority. The MHO Agreement specifically incorporates in the termination procedure, the rights which the Homebuyers have under the provisions of the Indian Civil Rights Act, 25 U.S.C. section 1302. Those rights include the right to due process. Due process requires adequate notice and an opportunity to be heard prior to the time the occupancy is terminated. Although this is usually provided by trial court review prior to termination, the Housing Authority is still required to demonstrate that it complied with all applicable procedures in terminating the MHO Agreement. Those applicable procedures begin upon compliance with Section 9.2 of the MHO Agreement itself.

During oral argument on appeal, the Housing Authority indicated that the written Notice of Termination was provided to the Homebuyers prior to June of 1993. It is the Housing Authority's position that termination commenced at that point, was suspended as evidenced by the Payback Agreement executed in June of 1993, and was re-instituted with issuance of a 14-day Notice to Pay Rent or Quit Premises served on the Homebuyer in January of 1994. Although this Court does not decide whether such a procedure complies with due process, the Court would question that approach. The Payback Agreement in essence waives termination of the MHO Agreement. A safer approach would be to issue a second Notice of Termination when the subsequent default occurs, because the 14-day Notice to Pay Rent or Quit the Premises does not contain all of the notices to the Homebuyer required by Section 9.2 of the MHO Agreement. Only in this manner can the Homebuyer's rights to due process be preserved.

3 NICS App. 320, Tulalip Housing Authority v. Alcombrack (July 1994) p. 325

Decision and Order

On the basis of the foregoing, although the Housing Authority clearly had grounds to terminate the tenancy, they unfortunately have not carried their burden of proving that they complied with the mandatory requirements of Section 9.2 of the MHO Agreement. Therefore, the trial court decision is reversed, the tenancy of Chad and Cindy Alcombrack is reinstated, and this action is dismissed.

In the interest of fairness and justice, the Homebuyers should be permitted a reasonable opportunity to repay all amounts due to the Housing Authority under the MHO Agreement. Cindy Alcombrack indicated during her oral argument that she is prepared to pay all back rent. She should be permitted a period of thirty (30) days from the date she is served with this Order to pay all back rent due, and to come into full compliance with the MHO Agreement and with the terms of the Payback Agreement dated June 25, 1993. If she does not do so, the Housing Authority is free to issue a Notice of Termination and proceed with the new eviction.

COOCHISE, Chief Justice, and PURSER, Associate Justice, concur.