DC: L&T Insufficiency of Service of Process and Insufficient Intent to Occupy to Terminate Leasehold

Landlord’s claim to occupy premises for “immediate” use fails because the intent to occupy is in the future and claim of “occupancy” also fails because Landlord only intends to occupy the property sporadically, which falls short of constituting “occupancy”. Service upon a spouse in a residence without further inquiry by process server does not constitute service upon the defendant.

Judge Kravitz of the D.C. Superior Court recently issued a Memorandum Opinion in Irene v. Rubio 142 Daily Was. Law Rep. 1609 (July 8, 2014) that addressed the propriety of a “90 Day Notice to Vacate for Personal Use and Occupancy” and accompanying “owner’s affidavit pursuant to 42 D.C. Official Code 3505.01(D).

The Landlord had stated his intention to use the residential rental premises for his own immediate and personal use and occupancy as a dwelling. The facts that developed at trial were that the Landlord desired to have the apartment available as a pied-a-terre when he visited his brother several times during the year.

The Court recognized that

 “As a general matter, the Rental Housing Act prohibits the eviction of a residential tenant, even after the expiration of the tenant’s lease, for as long as the tenant pays …rent…. D.C. Official Code 42-3505.01(a) [with some narrowly drawn exceptions enumerated at DC Official Code 42-3505.01(b)-(f)”.

The exceptions do not define “immediate”, “personal”, “use”, “occupancy”, or “dwelling”. The landlord posited that his intended use can within the scope of the exception because the statue does not require the use to be as a primary residence.

There was uncorroborated testimony from the tenant that the landlord’s plans were more nefarious, but the Court found no evidence to support that contention.

Nevertheless, the Court, found that a plain meaning of the word “immediate” would connote that the landlord intend to occupy very soon after the premises are available. Further the statutory scheme required a less-expansive construction of the exemptions and that “an owner brings himself within the statutory exception only if he ‘shows a real and immediate need for his own property”. Brauer v. O’Daniel, 47 A.2d 89,91 (D.C. 1946).

The court concluded that the landlord’s intended use was not immediate and too sporadic to constitute “occupancy”.