Owner Didn't Provide Enough Details in Pre-Termination Notice
In a recently decided case, an owner of a HUD-subsidized building failed to evict a resident because the owner’s pre-termination notice wasn’t specific enough. Owners must furnish a proper lease pre-termination notice letting residents know exactly what they did wrong. If the notice isn’t clear and specific enough, it will be deemed defective. And if the notice is defective, you won’t be able to evict the residents no matter what violation a resident commits.
Broad Termination Notice
In the case at hand, the lease agreement specified that the owner’s right to terminate the tenancy was governed by HUD regulation 24 CFR part 247. That regulation, in pertinent part, requires that any lease termination notice “state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense” [24 CFR 247.4 (a)(2)].
In a letter sent in December 2018, the owner notified the resident that the lease was automatically terminated, effective Feb. 1, 2019, based on assertions that she had violated the building’s “Bullying Policy” and had “disrupt[ed] the livability of the project, adversely affecting the health and safety of other persons and adversely affecting the right of other tenants to the quiet enjoyment of the premises, in violation of [paragraphs] 9(b)(1) and 9(b)(2) of the lease agreement.” This language paraphrases the definition of “material noncompliance” based upon “repeated minor violations.” The owner later extended the termination date to Feb. 28, 2019, but the resident didn’t vacate the premises.
The lower courts ruled for the owner, but a New York appeals court reversed the ruling and dismissed the case. On appeal, the resident’s argument was that the notice of termination was ineffective because it failed to satisfy the specificity requirements of 24 CFR 247.4 (a) [Matter of Metro Plaza Apts., Inc. v. Buchanan, February 2022].
Since a proper notice to terminate was a condition needed to terminate the lease, the court said the owner had no basis to initiate an eviction proceeding. At the eviction proceeding, the court stated that it is the owner’s burden to prove at the hearing that an effective notice of termination had been served on the resident. The lawyer for the resident emphasized that the notice didn’t specify the offending behavior that the resident was alleged to have engaged in, didn’t provide dates or times of the alleged acts, and didn’t state “who it [wa]s that [wa]s complaining.”
If you’re going to evict a resident for behavior that violates lease provisions, you need to include specific details such as a description of the incidents and the date and time of the occurrences. A general description of what the resident did wrong won’t do. And the notice must also cite the exact provision(s) of the lease you claim the resident violated.
The courts recognize that federally assisted tenancy is a property right that can’t be taken away without due process of law. A fundamental rule of due process is that the accused must know exactly what he’s being charged with so he can either cure the violation or prepare a legal defense. Residents facing eviction can’t do this unless they know the precise provisions of the lease they’re being accused of violating. Therefore, when evicting a resident, make sure your lease pre-termination notice describes the alleged lease violation with enough detail so that a resident can prepare a defense.