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Docket Number

No. 14-05-01051-CV.

Attorney(S)

Mark J. Grandich, Houston, for appellants. Theodore R. Andrews, Houston, for appellees.

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Smart Summary

Kennedy v. Andover Place Apartments, No. 14-05-01051-CV (Tex. App.—Houston [14th Dist.] Aug. 31, 2006)

Factual and Procedural Background

Andover Place Apartments ("Andover") operates a HUD-subsidized multi-family housing project. Kimberly Kennedy ("Kennedy") lived in an apartment there and received federal rent subsidies. On February 18, 2004, Kennedy and Andover executed a one-year written lease ending March 31, 2005, with an automatic month-to-month renewal provision under paragraph 23. After multiple notices of lease violations, Andover sent Kennedy a "Notice of Termination and Intent to Evict" on October 25, 2004, listing grounds for termination and advising Kennedy she had ten days to discuss the termination and thirty days to vacate. Kennedy did not vacate; Andover filed a forcible detainer action on December 21, 2004. The trial court found Kennedy breached the lease, concluded Andover properly terminated the tenancy, and awarded possession to Andover. Kennedy appealed, raising four issues; the court of appeals reversed based on failure to comply with Texas law regarding eviction notices.

Legal Issues Presented

Whether Andover complied with state and federal law in providing the required notices to terminate Kennedy's tenancy.
Whether the trial court impermissibly relied on incidents of misconduct prior to the lease date in finding Kennedy breached her lease.

Arguments of the Parties

Appellant's Arguments (Kennedy)

Andover failed to comply with TEX. PROP. CODE ANN. § 24.005 by not providing a separate, later notice to vacate after giving Kennedy the opportunity to respond to the proposed eviction.

Appellee's Arguments (Andover)

Andover contended its single "Notice of Termination and Intent to Evict" complied with § 24.005, relying on lease language that HUD-required notice periods may run concurrently with state notice periods and citing non-Texas authority holding a later notice was not necessary under those courts' laws.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
George v. Phillips Petroleum Co., 976 S.W.2d 363, 364 (Tex.App.-Houston [14th Dist.] 1998, no pet.)	General duty of appellate court to examine its own jurisdiction.	Invoked to justify the court's independent review of jurisdiction despite appellee not contesting it.
Marshall v. Housing Authority of San Antonio, 198 S.W.3d 782 (Tex. 2006)	Mootness in forcible detainer actions where tenant no longer occupies and lease has expired.	Compared facts to determine this case was not moot because lease auto-renewal potentially preserved a current right to possession.
911 Glen Oak Apartments v. Wallace, 88 S.W.3d 281, 285 (Tex.App.-Corpus Christi 2002, no pet.)	Landlords may not refuse to renew a lease involving federally subsidized housing solely because the term has expired.	Used to support the court's conclusion that the lease's automatic renewal could preserve Kennedy's right to possession after the initial term.
Newhouse v. Settegast Heights Village Apartments, 717 S.W.2d 131, 134 (Tex.App.-Houston [14th Dist.] 1986, no writ)	HUD materials prohibit refusing to renew a lease solely because the term expired.	Supported the court's determination that expiration alone did not render the action moot.
Perkins v. Group Life Health Ins. Co., 49 S.W.3d 503, 506 (Tex.App.-Austin 2001, pet. denied)	Because forcible detainer is statutory, the statutory provisions are mandatory and must be strictly complied with.	Supported the court's requirement of strict compliance with statutory notice requirements for forcible detainer.
Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex. 1986)	Statutory provisions that create causes of action are mandatory and exclusive.	Reinforced the rule requiring strict statutory compliance in forcible detainer actions.
Santos v. City of Eagle Pass, 727 S.W.2d 126, 129 (Tex.App.-San Antonio 1987, no writ)	Interpreting prior statute to require delaying a notice to vacate if lease or law requires an opportunity to respond to a proposed eviction.	Used to interpret TEX. PROP. CODE ANN. § 24.005(e) as requiring a separate, later notice to vacate when the lease grants an opportunity to respond.
Ferguson v. Hous. Auth. of Middlesboro, 499 F.Supp. 334, 336-37 (E.D.Ky.1980)	Example of a non-Texas case addressing whether a later notice to vacate was necessary where federal/state notices overlapped.	Recognized by the court but distinguished because those cases involved notices that complied with the relevant state law.
Okla. City Hous. Auth. v. Jeffers, 853 P.2d 1277, 1280-81 (Okla. 1993)	Non-Texas authority holding a later notice to vacate was not necessary under that state's law when notices overlapped.	Distinguished on the ground that in Jeffers the notices given complied with state law; thus not controlling here.
Staten v. Hous. Auth. of Pittsburgh, 469 F.Supp. 1013, 1016 (W.D.Penn.1979)	Federal case finding a second notice necessary to comply with state law.	Noted as an example of authority reaching a conclusion aligned with the court's interpretation of § 24.005.
Hous. Auth. of Everett v. Terry, 114 Wash.2d 558, 789 P.2d 745, 750 n. 22 (1990)	Discussion of two-notice cases and conclusion that state notice must be given as prescribed regardless of parallel federal requirements.	Quoted to support the principle that federal notice requirements do not eliminate independent state statutory notice requirements.

Court's Reasoning and Analysis

The court first considered jurisdiction and mootness, citing George and Marshall. It determined the action was not moot despite the original lease's expiration because the lease contained an automatic month-to-month renewal provision (paragraph 23) and Andover produced no evidence of good cause for termination arising after the forcible detainer was filed; thus Kennedy retained a potential current right to possession.

Turning to forcible detainer law, the court explained that under TEX. PROP. CODE ANN. § 24.002 a landlord must lawfully terminate a tenant's right to possession and strictly comply with statutory notice requirements. Relying on Perkins and Employees Ret. Sys., the court reiterated the mandatory nature of the statutory scheme.

The court analyzed TEX. PROP. CODE ANN. § 24.005(e), concluding its plain language prohibits giving a notice to vacate until the tenant's period to respond to a proposed eviction has expired. Because Kennedy's lease expressly provided a ten-day opportunity to discuss the proposed termination with the landlord, § 24.005 required Andover to give a separate, later notice to vacate after that response period. Andover had only provided a single, combined notice and thus failed to comply with § 24.005.

The court rejected Andover's contention that concurrent HUD and state notice periods satisfied § 24.005. It concluded the lease language permitting concurrent HUD/state periods did not eliminate the statutory requirement of a second notice to vacate. The court acknowledged non-Texas authority cited by Andover but distinguished those cases because they involved compliance with the relevant state law, whereas here the state statute required a later notice.

Because Andover's termination did not comply with § 24.005, the court held Andover was not entitled to prevail in the forcible detainer action.

Holding and Implications

REVERSED AND RENDERED: The court sustained Kennedy's second issue, reversed the trial court's judgment, and rendered judgment in favor of Kennedy.

Direct effect: Kennedy regained judgment in the forcible detainer action; Andover's eviction was invalidated for failure to comply with TEX. PROP. CODE ANN. § 24.005. The opinion does not announce any new broad precedent beyond its application of existing statutes and case law to the facts, and no broader implications were discussed.

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Kimberly KENNEDY, Appellant v. ANDOVER PLACE APARTMENTS, Appellee.

OPINION

LESLIE BROCK YATES, Justice.

This is an appeal in a forcible detainer action in which the trial court determined that appellee Andover Place Apartments ("Andover") was entitled to possession of the apartment leased by appellant Kimberly Kennedy. In four issues, Kennedy claims the trial court's judgment was in error because (1) Andover did not comply with state and federal law in providing the required notices to terminate her tenancy and (2) the trial court impermissibly relied on incidents of misconduct prior to the lease date in determining she breached her lease. Because we determine Andover did not comply with Texas law in evicting Kennedy, we reverse.

BACKGROUND

Andover operates a federally-subsidized multi-family housing project under the auspices of the Department of Housing and Urban Development ("HUD"), and Kennedy lived in an apartment there and received federal rent subsidies. On February 18, 2004, Kennedy and Andover executed a one-year written lease, ending March 31, 2005. After sending several notices of lease violations, on October 25, 2004, Andover sent Kennedy a "Notice of Termination and Intent to Evict." In this letter, Andover listed several grounds to support its intention to terminate Kennedy's tenancy and notified Kennedy that she had ten days to discuss this termination with the landlord and thirty days to vacate the premises. When Kennedy failed to vacate, Andover brought this forcible detainer action on December 21, 2004. The trial court determined that Kennedy had violated her lease, that Andover had properly terminated her tenancy, and that Andover was entitled to possession of the premises.

ANALYSIS Jurisdiction

Though Andover does not contest it, we have a duty to examine our own jurisdiction. See George v. Phillips Petroleum Co., 976 S.W.2d 363, 364 (Tex.App.-Houston [14th Dist.] 1998, no pet.). We do so in light of the supreme court's recent decision in Marshall v. Housing Authority of San Antonio, 198 S.W.3d 782 (Tex. 2006). As in this case, Marshall involved a forcible detainer action by a landlord to evict a tenant in a rent-subsidized federal housing assistance program. Id. at 784-85. The court dismissed the case as moot because the tenant no longer lived in the apartment and, since her lease had expired, she had no basis for claiming a current right to possession of the apartment. Id. at 787.

Although Kennedy's lease expired on March 31, 2005, the lease provides that it "will continue for successive terms of one month each unless automatically terminated as permitted by paragraph 23." Paragraph 23 allows a landlord to terminate the lease for various reasons constituting good cause; a landlord may not terminate HUD-subsidized housing solely because the term of the lease has expired. See 911 Glen Oak Apartments v. Wallace, 88 S.W.3d 281, 285 (Tex.App.-Corpus Christi 2002, no pet.) ("[W]hen deciding whether a landlord may terminate a lease involving federally subsidized housing as in this case, landlords may not refuse to renew a lease solely because the term has expired."); Newhouse v. Settegast Heights Village Apartments, 717 S.W.2d 131, 134 (Tex.App.-Houston [14th Dist.] 1986, no writ) ("HUD materials also make it clear that landlords may not refuse to renew a lease solely because the term has expired."). Andover neither argues nor presents evidence of any good cause for terminating Kennedy's lease arising after this forcible detainer was filed. Thus, although the initial term of Kennedy's lease expired during the pendency of this action, unlike in Marshall, Kennedy has asserted a basis for claiming a current right to possession after the date the lease expired based on its automatic renewal provision. Thus, we determine this action is not moot.

Forcible Detainer

Under Texas Property Code section 24.002, a tenant commits a forcible detainer by refusing to surrender possession of real property after the landlord has lawfully terminated the tenant's right to possession. See TEX. PROP. CODE ANN. § 24.002(a) (Vernon 2000). Section 24.002 also provides that a landlord must make a written demand for possession and comply with section 24.005's requirements for a notice to vacate. Id. § 24.002(b). Because forcible detainer is a statutory cause of action, a landlord must strictly comply with its requirements. See Perkins v. Group Life Health Ins. Co., 49 S.W.3d 503, 506 (Tex.App.-Austin 2001, pet. denied) (noting that because relevant cause of action derives from statute, not common law, "the `statutory provisions are mandatory and exclusive and must be complied with in all respects'" (quoting Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex. 1986))).

In her second issue, Kennedy argues that Andover was not entitled to prevail in its forcible detainer action because Andover failed to comply with section 24.005 and thus did not lawfully terminate her tenancy. We agree. Section 24.005 states: "If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired." TEX. PROP. CODE ANN. § 24.005(e) (Vernon 2000) (emphasis added); see also TEX. GOVT CODE ANN. § 311.016(5) (Vernon 2005) (providing that unless the context "necessarily requires" a different construction, "`[m]ay not' imposes a prohibition and is synonymous with `shall not'"). Under this plain language, when the lease requires an opportunity to respond to a proposed eviction and section 24.005 thus applies, the landlord must provide a separate, later notice to vacate. See TEX. PROP. CODE ANN. § 24.005(e); Santos v. City of Eagle Pass, 727 S.W.2d 126, 129 (Tex.App.-San Antonio 1987, no writ) (interpreting prior statute and noting it "requires the landlord to delay sending a notice to vacate if the lease or applicable law requires him to give the tenant the opportunity to respond to a notice of proposed eviction"). Kennedy's lease requires such an opportunity to respond, specifically stating that a termination notice must "advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord." Accordingly, because Andover did not provide a separate notice to vacate after ten days, it did not comply with section 24.005 and thus did not lawfully terminate Kennedy's tenancy.

Andover argues that its single notice was sufficient to comply with section 24.005 based on language in the lease. The lease states that "[a]ny HUD-required notice period may run concurrently with any notice period required by State and local law." This language indicates that state and HUD notice periods may run together as opposed to consecutively; it does not say that a HUD notice can eliminate the state statutory requirement of providing a second, later notice. In other words, the HUD notice period may run concurrently with the first state notice period, but section 24.005 still requires a second notice. Andover cites two non-Texas cases holding that, in those circumstances, a later notice to vacate was not necessary. See Ferguson v. Hous. Auth. of Middlesboro, 499 F.Supp. 334, 336-37 (E.D.Ky.1980); Okla. City Hous. Auth. v. Jeffers, 853 P.2d 1277, 1280-81 (Okla. 1993). However, those cases explicitly noted that, unlike here, the notices given complied with state law. See Ferguson, 499 F.Supp. at 337; Jeffers, 853 P.2d at 1281; see also Staten v. Hous. Auth. of Pittsburgh, 469 F.Supp. 1013, 1016 (W.D.Penn.1979) (finding second notice necessary to comply with state law); Hous. Auth. of Everett v. Terry, 114 Wash.2d 558, 789 P.2d 745, 750 n. 22 (1990) (discussing two-notice cases and concluding that "regardless of any parallel or duplicate federal notice requirements, state notice . . . must be given as prescribed by the relevant statute").

Because Andover's attempted termination of Kennedy's tenancy did not comply with section 24.005, Andover was not entitled to prevail in its forcible detainer action. We sustain Kennedy's second issue, reverse the trial court's judgment, and render judgment in favor of Kennedy. Because we sustain Kennedy's second issue and render judgment in her favor, we need not address her other three issues.

KENNEDY v. ANDOVER