BEFORE THE
COMMISSION ON LANDLORD-TENANT
AFFAIRS
FOR
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In the Matter of Alan Freeman, Acting Chairman Complainants |
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v. |
Case No. 13286 |
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Plaza Apartments L.L.C. Rental Facility: Respondent |
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·
Decision and Order –
Part II
·
Order
The
above-captioned case having come before the Commission on Landlord-Tenant
Affairs for Montgomery County, Maryland (the "Commission"), pursuant
to Sections 29-10, 29-14, 29-41, and 29-44 of the Montgomery County Code, 2001,
as amended (“County Code”), and the Commission having considered the testimony
and evidence of record, it is therefore, this 16th day of April, 2004,
found, determined, and ordered, as follows:
On January 15, 2004, the Commission issued a Decision
and Order – Part I (copy attached) in this matter which concluded, based on
Findings of Fact and Conclusions of Law, that each residential household
occupied by one or more of the 59 individuals who signed authorizations for the
Co
1. The
residential household was a residential tenant at Co
2. The
residential household at Co
3. The
residential household at Co
The
Commission’s Decision and Order – Part I ordered that each residential
household that met all of the above criteria is entitled to receive a rent
refund in an amount equivalent to the difference between the increased rent the
individual’s household paid pursuant to the invalid rent increase notice
received by the household in 2001 or 2002, and the amount of rent the household
would have paid for that period without that rent increase notice.
The
Commission’s Decision and Order – Part I also reopened the record for a
limited purpose—in order for the Commission to make a specific award of damages
in this case, the Complainants were to submit to the Commission, with a copy to
the Respondent, within 30 days of the date of the Decision and Order – Part
I, affidavits from members of the Co
1. The
individual’s address, including apartment number, at Colespring Plaza
Apartments;
2. The
fact that the individual is a residential tenant at Colespring Plaza
Apartments, and was a tenant at the time he or she signed the authorization;
3. The
fact that the individual received a notice of rent increase in 2001 or 2002
that was missing at least one of the terms required by Section 29-54(a) of the
County Code;
4. The
amount of the household’s rent prior to the defective rent increase notice, and
the amount of rent after the defective rent increase notice; and
5. The
fact that the household paid the increased rent pursuant to the defective rent
increase notice, including the month and year that the household first paid the
increased rent amount, and the length of time (number of months) the household
paid that increased rent amount.
The
Commission’s Decision and Order – Part I also provided that if the
Respondent disagreed with any of the assertions set out in any of the
affidavits submitted by the Complainants, the Respondent had 15 days from the
date the Respondent received copies of the affidavits to file with the
Commission a rebuttal to those facts, attaching proof, including but not
limited to, rent records. At
Respondent’s request, the Commission granted Respondent an additional 15 days
to file its rebuttal.
On
1. On
2. On
Order – Part I inadvertently
failed to set a monetary award for affected tenants during the 60-day notice
period for the rent increase notices. On
Based
on a review of Complainants’ “Request for Clarification of
Based
on the testimony and evidence received at the hearing, the Commission makes the
following Findings of Fact:
1. In response to the Commission’s Decision
and Order – Part I, on
2. In addition to the 32 properly executed
affidavits submitted by Complainants on February 17, 2004, the Complainants
also submitted affidavits from two additional tenants at Co
3. The
Commission finds that the following 24 persons who signed authorizations for
the Co
1). Sebsebe Bekel - Unit # 1009 13).
2). Eluy Bressanin - Unit # 315 14).
3). Philip Carroll - Unit # 1023 15).
4). Louise Cummings - Unit # 124 16). Margarita Rogue - Unit # 412
5). Jacqueline Grace - Unit # 1015 17).
6). Kimberly Hailey - Unit # 616 18).
7). Laurie Kaslove - Unit # 211 19).
8). Emmanuel Mmari - Unit # 528 20).
9). Kathleen Nedeau - Unit # 206 21).
10). Andree Payeff - Unit # 909 22).
11). Cedric Persaw - Unit #620 23).
12). Kyle Pittman - Unit # 1027 24). Occupant - Unit #905
4. Barbara Weeks (Unit # 515) and Ingrid
Dennis (Unit # 708) submitted affidavits to the Commission in which they
asserted that they had each received a defective notice of rent increase in
2002, and as a result, both believe that they are entitled to a refund of rent
paid. The Commission finds however that
on July 26, 2002, Ms. Weeks received a notice of rent increase from the
Respondent that fully complied with the requirements of Section 29-54 of the
County Code; and on August 30, 2002, Ms. Dennis received a proper notice of
rent increase from the Respondent that fully complied with the requirements of
Section 29-54 of the County Code. These
findings are based on a review of the rent increase notices submitted to the
Commission by the Respondent as part of its rebuttal. Therefore, the Commission finds that no
defective tenancy has occurred regarding the notices of rent increase received
by
5. On or about
6. On or about
7. On or about
Respondent the improper
$50.00 rent increase for 12 consecutive months, from
8. On or about
9. On or about March 25, 2002, Complainant
Lee Etzel (Unit #425), received a notice of rent increase from the Respondent,
increasing her rent by $70.00 a month that did not comply with one or more
provisions of Section 29-54 of the County Code.
10. On or about
11. On or about
12. On or
about
Respondent the improper
$70.00 rent increase for 11 consecutive months, from
13. On or
about
14. On or
about
15. On or
about
16. On or
about
17. On or
about
18. On or
about December 28, 2001, Joanne Little (Unit #423) received a notice of rent
increase from the Respondent, increasing her rent by $85.00 a month that did
not comply with one or more provisions of Section 29-54 of the County
Code. Ms. Little paid the Respondent the
improper $85.00 rent increase for 12 consecutive months, from
19. On or
about
20. On or
about
21. On or
about
with one or more provisions
of Section 29-54 of the
22. On or
about
23. On or
about
24. On or
about
25. On or
about
26. On or
about
27. On or
about
28. On or
about
29. On or
about
30. On or
about
31. On or about
32. On or
about
1. Pursuant
to the Commission’s Decision and Order – Part I, only those tenants who
signed authorizations for the Colespring Plaza Tenants Association to represent
their interest at a hearing before the Commission, and who submitted affidavits
to the Commission asserting that they received an invalid notice of rent
increase from the Respondent that did not comply with the requirements of
Section 29-54 of the County Code, are entitled to receive a rent refund in an
amount equivalent to the difference between the increased rent the individual
household paid pursuant to the invalid rent increase notice received by that
household in 2001 or 2002, and the amount of rent the household would have paid
for that period without that rent increase notice.
3. In its
rebuttal, Respondent argues that the “de minimus” nature of the alleged
violation does not warrant relief. We disagree. Section 29-54(a), which sets
out the five elements that a landlord must include in a rent increase notice,
excuses the absence of only one of those elements—§ 29-54(a)(3). By excusing
this one element, one might reasonably argue that its absence is de minimus.
But it strongly suggests to us that the absence of any of the other required elements
is not de minimus.
Respondent
argues that determining damages based upon an affidavit denies it due process.
Respondent asserts that it has a right to cross examine each affiant. Again, we
disagree. Respondent does not have a general right to an evidentiary hearing on
the issue of damages. Rather, Respondent has a right to an evidentiary hearing
only if there are genuine disputes of material fact. Due process does not
require an evidentiary hearing, but rather, is a flexible concept which allows
for review based upon written submissions (or a “paper hearing”). Alitalia Linee Aeree Italiane v. Tornillo,
320
Respondent
raised a legal objection to the affidavits; that they impermissibly sought
damages before it knew of the invalidity of its rental increase notice on
With
regard to the remaining disputes, the Commission has sided with the Respondent.
Thus, the Commission agrees with Respondent that tenants Karen Harris-Zanders (Unit
#727) and Ellen Oerter (Unit #902), who had not previously signed
authorizations for the Colespring Plaza Tenants Association to represent their
interest at a hearing before the Commission, are not parties to these
proceedings and are not entitled to any relief from the Commission as part of
this complaint because they do not fit the criteria for relief set out in Part
I of the decision. Likewise, the Commission agrees with Respondent that the
rent increase notices it sent to tenants Barbara Weeks (Unit # 515) and Ingrid
Dennis (Unit # 708) (these are the only rent increase notices Respondent
provided as part of its rebuttal) were valid and did comply with all of the
requirements Section 29-54 of the County Code. Therefore, Complainants Weeks
and Dennis are not entitled to a rent refund from the Respondent.
Finally,
as to Tenants Lois Jackson (#311) and Gail Young (#507), it is the Respondent’s
position that if they are to be awarded any damages, that the award be limited
to 12 months rather than the 14 months contained in their respective
Affidavits. The Commission
disagrees. Both Lois Jackson (#311) and
Gail Young (#507) received defective rent increase notices and they paid the
attendant rent increase for 14 months. Yes, the Respondent could have issued
non-defective rent increase notices to Lois Jackson (#311) and Gail Young
(#507) after 12 months but failed to do so.
Therefore, all of the rent increase paid by both Lois Jackson (#311) and
Gail Young (#507) pursuant to the defective rent increase notices issued by the
Respondent, effective March 1, 2002, are rightfully damages.
4. The Complainants submitted affidavits
from two tenants at Co
5. Although Complainants Barbara Weeks
(Unit # 515) and Ingrid Dennis (Unit # 708), submitted affidavits to the
Commission asserting that they had received an invalid notice of rent increase
from the Respondent in 2001 or 2002, the Commission finds that the rent
increase notices were valid and did comply with all of the requirements Section
29-54 of the County Code. Therefore,
Complainants Weeks and Dennis are not entitled to a rent refund from the
Respondent.
6. The Commission finds that the remaining
31 Complainants, representing 28 households at Colespring Plaza Apartments: (A)
signed authorizations for the Colespring Plaza Tenants Association to represent
their interest at a hearing before the Commission; (B) submitted properly
executed affidavits to the Commission as required by the Commission’s Decision
and Order – Part I; and (C) received a rent increase notice from the
Respondent in 2001 or 2002 that was missing at least one of the terms required
by section 29-54(a) of the County Code.
Based on the Respondent’s failure to rebut the assertions contained in
those affidavits, specifically Respondent’s failure to provide the Commission
with rent records for these tenants, the Commission finds that the Respondent
has created defective tenancies for each of the 28 individual households by failing
to issue them a proper notice of rent increase, and as a result, each of the 28
individual households is entitled to receive a rent refund in an amount
equivalent to the difference between the increased rent the individual
household paid pursuant to the invalid rent increase notice received by the
household in 2001 or 2002, and the amount of rent the household would have paid
for that period without that rent increase notice.
In view
of the foregoing, and the Findings of Fact and Conclusions of Law set forth in
the Commission’s Decision and Order – Part I, the Commission on
Landlord-Tenant Affairs hereby orders the Respondent to pay the Complainants $24,489.00, which sum represents
the amount of rent the Complainants paid to the Respondent as a result of the
defective rent increase notices issued by the Respondent.
To
comply with this Order, Respondent must forward to the Office of
Landlord-Tenant Affairs, 100 Maryland Avenue, 4th Floor, Rockville,
MD 20850, to the attention of Investigator Rosie McCray-Moody, within thirty
(30) calendar days of the date of this Decision and Order, individual checks
made payable to the following Complainants in the following amounts:
1). Eugene
Borden…………………………… $1,020.00
2). Esther
Boyer……………………………… $1,020.00
3). Bethany
Ciha…………………………….. $ 600.00
4). Felicia
Eberling and Janet Trautvetter…… $1,020.00
5). Lee
Etzel ………………………………… $ 840.00
6). Hermoine
and Alan Freeman……………. $ 840.00
7). Alfred
Gluecksmann.……………………. $ 840.00
8). Blair
Goins………………………………. $ 826.00
9). Frances
Henderson………………………. $ 840.00
10). Jean
Jackson……………………………… $1,140.00
11). Lois
Jackson……………………………… $1,190.00
12). Margaret
Jacobs………………………….. $ 840.00
13). Kathryn
Kerrins………………………….. $1,020.00
14). Joanne
Little……………………………… $1,020.00
15). Sid
Marker……………………………….. $ 840.00
16). Elizabeth
Meyer………………………….. $ 840.00
17). Corrine
Price……………………………… $ 240.00
18). Ralph
Reeves…………………………….. $1,020.00
19). Morey
Rothberg………………………….. $ 720.00
20). Jo Ann
Rusnak…………………………… $1,020.00
21). Edith
Diane Russell……………………… $ 840.00
22). Twilda
Shennette………………………… $ 948.00
23). Mary
Pearl Shirley……………………….. $ 840.00
24). Natalie
Sirott……………………………... $ 840.00
25). Angelo
Smith and Gwendolyn Taylor…… $ 840.00
26). Yvonne
Smith……………………………. $ 840.00
27). Ronald
Worthy…………………………… $1,020.00
28). Gail
Young……………………………….. $ 585.00
The
foregoing decision was concurred in unanimously by Commissioner Travis Nelson
and Commissioner Mattie Ligon.
Commissioner Roger D. Luchs did not participate in the deliberations or
vote in this case.
The
Respondent, Plaza Apartments L.L.C., is hereby notified that Section 29-48 of
the
In
addition to the issuance of a $500.00 civil fine Class A violation, should the
Commission determine that the Respondent has not, within thirty (30) calendar
days of the date of this Decision and Order, made a bona fide effort to comply
with the terms of this Decision and Order, it may also refer the matter to the
Office of the County Attorney for additional legal enforcement.
Any
party aggrieved by this action of the Commission may file an administrative
appeal to the Circuit Court for
advised that pursuant to
Section 29-49 of the
_________________________________ _________________________________
Mattie Ligon, Commissioner Travis
Nelson, Commissioner
Commission on Landlord-Tenant
Affairs Commission
on Landlord-Tenant Affairs
·
Index to Miscellaneous Cases
[1]
The Commission notes that the date of Complainants’ submission is