4 NICS App. 16, JOHNNY v. THA (September 1995)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Albert Johnny, Clarissa Johnny, Appellants/Defendants
v.
Tulalip Housing Authority, Respondent/Plaintiff
No. TUL-Ci-5/95-372 (September 25, 1995)
SUMMARY
Appeal of trial court order terminating Appellant’s tenancy. Finding that the Housing Authority had failed to meet its initial burden of proof and that the notice of termination did not provide adequate notice to Appellants, we reverse.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; and Christopher P. Williams, Justice.
Hostnik, J.:
This matter came before the Tulalip Tribal Court of Appeals for hearing on August 7, 1995 pursuant to Appellant's July 7, 1995 notice of appeal. Appellants Albert and Clarissa Johnny appeal the June 20, 1995 Order of the Tulalip Tribal Court granting Respondent Housing Authority's complaint for unlawful detainer.
Occupancy Specialist Stacy Oshie appeared on behalf of Respondent Tulalip Housing Authority. Appellants Albert and Clarissa Johnny appeared pro se.
I. BACKGROUND
This appeal originated as an unlawful detainer action filed by the Tulalip Housing Authority against Appellants Albert and Clarissa Johnny for alleged violations of a Mutual Help and Occupancy Agreement.
The Tulalip Housing Authority (Housing Authority) rented a home to Albert and Clarissa Johnny (Appellants). On March 16, 1991, the parties executed a Mutual Help and Occupancy (MHO) Agreement.
Between December of 1991 and February of 1995, the Housing Authority sent Appellants numerous letters stating its concern that Appellants were violating certain terms of their MHO
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Agreement. In the letters, the Housing Authority indicated it had become aware that unauthorized individuals might be living in Appellants' home, in violation of Section 5.4(a) of the MHO Agreement. The letters also requested that Appellants maintain both the inside and outside of their home in a clean, safe and sanitary condition as required by Sections 5.4(e) and 5.4(f) of the MHO Agreement.
The Housing Authority informed Appellants that it would be inspecting the house to ensure that Appellants were in compliance with the MHO Agreement. Inspections showed some improvements in maintenance.
On February 28, 1995, the Housing Authority served Appellants with a notice to terminate tenancy, alleging "failure to comply with [MHO] agreement, section 5.4 (a), (e), (f). . . ." Appellants were current with their housing payments at the time this notice was served. Appellants did not vacate the premises.
On May 18, 1995, the Housing Authority served on Appellants: (1) an unlawful detainer complaint seeking restoration of the premises to the Housing Authority; and (2) an eviction summons. The complaint also alleged that Appellants owed the Housing Authority $105.00 in back rent and a $25.00 court filing fee.
Appellants requested a grievance hearing, which was held on May 26, 1995. At the grievance hearing, the Board of Commissioners upheld the decision of the Housing Authority to proceed with the eviction.
On May 24, 1995 Appellants filed a written response to the eviction summons. Trial was scheduled for and held on June 9, 1995.
Pursuant to trial, in an Order dated June 20, 1995 and filed on June 22, 1995, the Tulalip Tribal Court granted the Housing Authority's complaint for unlawful detainer. Appellants also were ordered to pay the Housing Authority $125.00 in arrearages and $25.00 in court costs.
Appellants filed their notice of appeal on July 7, 1995. This Court accepted the appeal on July 13, 1995.
II. DISCUSSION
The Housing Authority alleges that Appellants failed to comply with the MHO by failing to adhere to their duties under three sections of the Agreement. Factually, this results in two issues: (1) Were unauthorized persons residing at the house, providing a basis for termination of the agreement under section 5.4(a)?; and (2) Was the home being maintained in such a fashion that it was not clean and safe nor sanitary, constituting a violation of section 5.4(e) or (f)? This is the basis
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upon which the Notice of Termination of Tenancy was issued on February 28, 1995.
Assuming grounds exist to terminate the Appellants' tenancy, we must turn then to the procedures used by the Housing Authority to effect termination. The MHO itself sets forth specific procedures that must be followed in order to terminate the Agreement.
Cases involving housing authorities present extremely important competing concerns for resolution by this Court. On the one hand, this Court must balance the Tribe's need to properly administer and maintain its housing areas. This includes the Housing Authority's duty to be sure that tenants comply with all requirements imposed upon them under Mutual Help and Occupancy Agreements. If a homebuyer fails to adequately maintain her home, or creates an unsightly condition by keeping junk cars in the yard or failing to properly dispose of garbage, the Housing Authority is justified in bringing an action to terminate that tenant's right to continue to occupy the property.
On the other hand, the homebuyer has an important property right under a Mutual Help and Occupancy Agreement. Tulalip Housing Authority v. Alcombrack, 3 NICS App. 320, 324 (Tulalip 1994). Because housing is a basic property right which is granted to a homebuyer under the MHO Agreement, this Court must be especially vigilant in protecting that property right.
Despite the important rights which a homebuyer has in continuing to occupy property, upon a proper showing by the Housing Authority, this Court has the duty to evict homebuyers, and will do so. The Housing Authority typically brings eviction actions as a measure of last resort, usually after attempting to work with a homebuyer to cure what the Housing Authority views as problems.
Again, however, although those efforts by the Housing Authority to work with homebuyers are commendable and should be encouraged, they are irrelevant when an eviction action comes before this Court. Either grounds for eviction exist and the homebuyer will not be permitted to continue to occupy the property, or the grounds for eviction do not exist and the homebuyer will be permitted to continue to occupy the property.
A. Unauthorized Persons
One of the grounds upon which the Housing Authority seeks to terminate Appellants' tenancy is an alleged violation of section 5.4(a) of the MHO Agreement. This section provides as follows:
The Homebuyer agrees:
(a) To use the Home only as a place to live for (1) himself and the members of his family listed in the schedule appended to this Agreement, (2) children born to or adopted by members of such family after the date of this Agreement, and foster children, (3) persons providing live-in care of a member of the Homebuyer family, and (4) aged or widowed parents of the Homebuyer or spouse; other family members may live in
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the Home only with the prior written approval of the [Indian Housing Authority];
MHO Agreement, section 5.4(a), admitted as Exhibit 1. This section refers to an attached schedule which lists the members of the family who are authorized to reside with the homebuyer in the house. There was no schedule attached to the MHO Agreement in this case. During oral argument, the Housing Authority indicated that while it is not their practice to attach a schedule listing those members of the family who are authorized to reside in the home, such a list is maintained by the Housing Authority. It would be a better practice for the Housing Authority to attach that list of authorized persons directly to the MHO Agreement as Schedule A, in accordance with section 5.4(a) of the MHO Agreement.
The failure to attach the schedule of authorized persons, however, is not fatal to the Housing Authority's case. The Housing Authority can meet its initial burden of proof by showing that the person complained of is not authorized to reside in the house under section 5.4(a) of the MHO Agreement. They must show that individual did not fit within one of the categories of authorized persons set forth in that section.
In this case, however, the Housing Authority has failed to meet that initial burden of proof. The Housing Authority has not identified the unauthorized person. They also have not shown the relationship of that person to the homebuyer. Therefore, this Court cannot determine whether the person was authorized to reside in the home under section 5.4(a) of the MHO Agreement.
In reviewing the record before us, we find that the Housing Authority sent a letter dated December 19, 1991 to Clarissa Johnny indicating that the Housing Authority had become aware of "possible unauthorized individuals living temporarily in your home." That letter also indicated "[i]f this is the case, the housing authority would like to remind you that these individuals must be added to your occupancy list." See Exhibit 11. However, the unauthorized individuals were not identified in that letter.
The record also discloses a letter dated June 22, 1994 to Clarissa Johnny again indicating that it had been brought to the Housing Authority's attention that one or more individuals residing in Appellants' home were not on their occupancy list. The letter went on to remind Ms. Johnny that approval from the Housing Authority is required before an individual is authorized to move into the home on a permanent basis. See Exhibit 8. That letter, again, did not identify the unauthorized individual.
A follow-up letter was sent to Clarissa Johnny on September 20, 1994 indicating that the Housing Authority would be recommending termination of the MHO Agreement because of continuing areas of concern, including unauthorized tenants living at the home. See Exhibit 6. However, the unauthorized tenant was not disclosed in that letter.
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On September 30, 1994, Clarissa Johnny was notified that the only people allowed to live in her home were herself and three other individuals. This was the last notice given to Ms. Johnny prior to issuance of the Notice of Termination on February 28, 1995.
After the Notice of Termination was issued, a letter dated March 15, 1995 was sent to Clarissa Johnny which disclosed that Ms. Johnny apparently had requested three individuals be added to her authorized occupancy list. The request was denied by the Housing Authority, but the Housing Authority at that point indicated that there were five persons authorized to occupy the unit between September 30, 1994 and March 15, 1995. The record does not disclose when the additional person was authorized to occupy the unit, or whether that was the person of whom the Housing authority was complaining when it issued its Notice of Termination at the end of February of 1995.
This discussion results in two points with regard to this basis for termination of the MHO Agreement. First, the Housing Authority failed to meet its initial burden of showing that a violation of section 5.4(a) of the MHO Agreement existed in this case. The alleged unauthorized person was not disclosed, and it was never shown that this person was not within one of the categories of authorized individuals under that section of the MHO Agreement.
If that initial showing had been made, the burden would then shift to the Appellant homebuyers to show that the individual had been authorized to reside in the home. If they were unable to make that showing, they would be deemed to be in breach of the Agreement, and termination would be appropriate.
Even if the Housing Authority had met its initial burden of proof, however, there is a failure of evidence in the record before us to demonstrate a breach of section 5.4(a) of the MHO Agreement. Primarily this is due to the fact that the unauthorized person has not been disclosed in the record before us. We do not know who that unauthorized person was, and there is no showing in the record before us upon which we can determine whether the alleged unauthorized person fits within one of the categories of section 5.4(a).
Due to the Housing Authority's failure to meet its burden of proof on this issue, we cannot find a violation of section 5.4(a) of the MHO Agreement. Therefore, this basis for termination of the Agreement must fail.
B. Failure to Maintain Property
A homebuyer has a duty under the MHO Agreement to keep the home clean, safe, and sanitary:
The Homebuyer agrees:
. . .
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(e) To keep the Home and such other areas as may be assigned to him for his exclusive use in a clean and safe condition;
(f) To dispose of all ashes, garbage, rubbish, and other wastes from the Home in a sanitary and safe manner;
MHO Agreement, Section 5.4(e), (f), admitted as Exhibit 1.
The record discloses that a number of letters were sent to the Defendants concerning maintenance of the yard. In November of 1993, the Housing Authority gave Clarissa Johnny seven days from the date of the letter to clean up the yard. See Exhibit 10. An inspection was to be done to insure compliance, and Appellant was notified that if the yard was not cleaned, the Housing Authority would clean it up at her expense. A similar letter was sent in April of 1994. See Exhibit 9.
A letter in June of 1994 indicated that there was still debris all over the yard, along with three immobile vehicles. See Exhibit 8. Two months later, the Housing Authority notified Clarissa Johnny that a number of complaints had been received concerning the number of vehicles parked around and on the yard, and debris and trash around the unit. See Exhibit 7. That correspondence requested that Ms. Johnny remove all trash and vehicles from the yard.
The following month, Ms. Johnny was sent a letter indicating the Housing Authority's concern about the amount of time and effort that had been spent in working with her to help her come into compliance with her duties under the MHO Agreement. The areas of concern were specified as:
1. Lack of maintenance of unit.
2. Lack of maintenance of your yard.
3. ...
4. Numerous vehicles parked on and around your yard.
See Exhibit No. 6. That same letter indicated the Housing Authority was going to recommend termination of the MHO Agreement, and set a time for Ms. Johnny to meet with the Board of Commissioners of the Housing Authority to discuss the situation.
By letter dated ten days later, the Housing Authority gave Ms. Johnny two weeks to clean up the inside and outside of her unit and to dispose of debris. The letter warned that if the conditions were not adhered to, the Board of Commissioners would terminate her MHO Agreement. See Exhibit 5. A follow-up letter was sent on January 3, 1995 reminding Ms. Johnny of the conditions set by the Housing Authority's Board of Commissioners and advising her that the Housing Authority would be conducting inspections once every two weeks. See Exhibit 4.
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Only one inspection form was introduced into evidence. This form, the result of the inspection performed on January 20, 1995, indicated that there were still immobile vehicles in the yard and that a curtain and carpet needed cleaning, but most of the other areas of the home were "okay" or "looking better." See Exhibit 12. It is clear progress had been made prior to the time the termination notice was issued.
At the time of trial, Ms. Johnny testified that the vehicles had been removed from the yard. See transcript, p. 18, lines 6-9. The Housing Authority acknowledged that inspections prior to issuance of the Notice of Termination did show an improvement in the maintenance of the unit. Transcript, p. 11, lines 11-14.
After reviewing all of the evidence before, us, we have difficulty finding that the Housing Authority has met its burden of showing a violation of section 5.4(e) and 5.4(f) of the MHO Agreement. It is clear that the Housing Authority had warned Appellants on a number of occasions that their failure to adequately maintain their unit would place continued occupancy of the unit in jeopardy. However, at the time of trial there was no direct evidence of the alleged maintenance violations.
The Housing Authority representatives that conducted the inspections were not called as witnesses at the time of trial to describe the condition of the home on the date the Notice of Termination was issued. All we know from the record is that Appellants were working on improving the maintenance of the unit, and by the Housing Authority's own admission, inspections prior to the time the notice of termination was issued did show an improvement in the maintenance of the unit.
The only direct evidence of maintenance violations is the inspection checklist that was introduced into evidence as Exhibit 12. Unfortunately, that checklist contains subjective comments without enough facts to determine the condition of the home on the date of the inspection. The only objective facts are: (1) the ground is showing signs of contamination from oil, and (2) "too many immobile vehicles tagged for towing in seven days." See Exhibit 12.
The oil contamination on the ground was explained at the time of trial by Clarissa Johnny to have actually resulted from an automobile which burned on the site, leaving some black residue on the ground. Since there are no facts to support the "signs of contamination from oil", we do not know what those signs were, or whether they were caused by oil or by a vehicle fire.
With respect to the number of immobile vehicles, if they were tagged for towing in seven days, then by the time the termination notice was issued, the vehicles should have been removed from the property. The parties acknowledge that at the time of trial on June 9, 1995, the vehicles were no longer on the property, but there is no indication as to the actual date that the vehicles were removed.
4 NICS App. 16, JOHNNY v. THA (September 1995) p. 23
As an appellate panel, we are mindful of the principle that the credibility of witnesses should be determined by the trial court, which is in a position to observe the demeanor of the witnesses at the time they testify. However, we cannot tell from the trial court's order in this case what facts the Court found with respect to the condition of the home on the date the Notice of Termination was issued.
Therefore, based on all of the evidence in the record before us, we find that the Housing Authority has failed to meet its burden of proof with respect to the allegation that Appellants failed to properly maintain their home as required by sections 5.4(e) and 5.4(f) of the MHO Agreement.
C. Adequacy of Initial Notice
The MHO Agreement has a specific procedure by which it can be terminated. The first step in that procedure is to issue a notice of termination to the homebuyer. MHO Agreement, Section 9.2. The Court notes that the notice of termination used in this case by the Housing Authority has been improved since the last time this Court reviewed a termination notice issued by the Housing Authority, in Alcombrack, 3 NICS App. 320 (Tulalip 1994).
One of the requirements of the notice of termination is that it must set forth the reason for termination. MHO Agreement, Section 9.2(a). In this case, the reason for termination was set forth as follows:
Your tenancy is terminated for the reasons state below:
Failure to comply with your MHO Agreement, section 5.4(a), (e) and (f).
Notice to Terminate Tenancy, attached to Plaintiff's Complaint as Exhibit A.
Although this reason for termination refers to appropriate sections of the MHO Agreement, it does not state why the Housing Authority thinks those sections were violated. In order to constitute adequate notice of the reason for termination, the Notice must include the factual basis for the termination, in addition to the sections of the MHO Agreement which are alleged to have been violated. Only after the homebuyer knows the facts supporting the Housing Authority's action can she then adequately exercise her right to appeal that termination decision if she disagrees. This appeal can be to the Housing Authority itself, or in an unlawful detainer action in tribal court.
It may be that ongoing discussions occurred between the parties so that the Notice of Termination did not come as a surprise to the homebuyer. However, this Court cannot engage in such speculation. We must decide this case on the basis of the record before us.
The beginning point in our procedural analysis is the Notice of Termination itself. In looking at that Notice we must determine whether it complies with section 9.2 of the MHO Agreement. To
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comply, the Notice of Termination must set forth: (1) those sections of the MHO alleged to have been breached, and (2) the facts supporting that breach. Since we find that there was no factual basis set forth in the Notice of Termination itself, we find that the Notice of Termination did not provide reasonable notice to Appellant homebuyers of why the Housing Authority was seeking to terminate their right to continue to occupy the property.
III. ORDER
Based upon the foregoing, the decision of the Trial Court is reversed and Albert Johnny and Clarissa Johnny are hereby restored to their tenancy under the terms of the MHO Agreement which they signed on March 16, 1991.