Litigation: Case Study II
Case: Damian Fox owns and manages a 12-unit house on Pine Street. Fox contracted with Dorothy Williams and Terry Gibson by means of a document entitled, “Apartment Sharing and Room Rental Lease Agreement” to rent one of the apartments to them on a weekly basis beginning in March.The agreement described Fox as the “landlord” and Williams and Gibson as “tenants.” The apartment consisted of one furnished room with a bed, dresser, cabinet, table, television, couch, refrigerator, and telephone. Fox provided a set of sheets, a pillow, a blanket, and a comforter, but Williams and Gibson were responsible for laundering the linens and obtaining any other linens they needed. No bathroom, running water, or kitchen facilities were supplied in the room, so Williams and Gibson shared a common bathroom and kitchen area with the other tenants on their floor. The kitchen area consisted of a microwave, toaster oven, and coffee machine, but the toaster oven and coffee machine were not always available. These common areas were cleaned and maintained by Fox, but Williams and Gibson were responsible for cleaning their room. The weekly rental included heat, electricity, cable television service, and local phone service. Although the rooms are rented on a weekly basis, Fox stated he attempts to rent to tenants who will stay for longer periods. A Certificate of Occupancy issued by the City’s Department of Building Inspection approved the property for residence as a “lodging house.” By December, Williams and Gibson had fallen behind in their rent. Fox obtained a writ of possession utilizing the forcible entry and detainer procedure under state statute. Before Fox executed the writ, however, he reached an agreement with Williams and Gibson whereby Williams and Gibson were permitted to remain in the room, but agreed to continue paying their weekly rent with additional payments for the back rent due. By September of the following year, although Williams and Gibson had made some additional payments, they had also missed other payments and had fallen even further behind in the rent payments. Fox attempted to execute the writ of possession he had obtained the previous December, but Williams and Gibson were granted an injunction by the district court preventing Fox from executing on the writ, the court concluding that because rent was paid and accepted after the writ was issued, a new tenancy had been created. One evening in October, without prior notice, Fox padlocked the door to Williams and Gibson’s room while they were out. Included among the possessions that could not be accessed were Gibson’s epilepsy medication and his identification to refill the prescription for the medication. As a result of being unable to access his medication, Gibson went to the emergency room twice within the next week for treatment of epileptic seizures. Williams and Gibson would like injunctive relief and damages for, among other allegations, illegal eviction and intentional and negligent infliction of emotional distress. Fox has said that he wanted the rent due and incidental charges. After the interview with Williams and Gibson, the attorney and paralegal have discovered that there is an issue with Fox’s contention that his property qualified as a lodging house. If this is true, then Williams and Gibson may recover on their claim of illegal eviction. Williams would like to recover $1,000 damages for her claim of intentional infliction of emotional distress, and Gibson would like to recover $5,000 damages for intentional infliction of emotional distress. Fox wants $300 for unpaid back rent, (Frey, M., p. 377).
Case Analysis
Damian Fox is a property owner, and oversees twelve units in a house. Fox claimed to have received a Certificate of Occupancy issued by the Virginia City’s Department of Building Inspection that approved the property for residence as a “lodging house.” Williams and Gibson signed a lease with an agreement that described Fox as the “landlord” and Williams and Gibson as “tenants.” Landlord Damian Fox’s weekly rental units came pre-furnished; with inclusive heat and electricity; cable television service; and a complimentary local phone service. The desiccated apartment was rented to the tenants without a bathroom, kitchen, or running water. Tenants Williams and Gibson shared a common bathroom and kitchen area with the other tenants on their floor, contracted to be maintained by landlord Damian Fox. After Williams and Gibson agreed to these terms, the toaster oven and coffee machine were removed from the common kitchen area. Virginia law Title 55.1. Subtitle III. Chapter 12. Article 3. § 55.1-1228 (5) states, “[i]t is not for the purpose of evading the obligations of the landlord,” as reported occurred; whereby § 55.1-1228 (6)(B) assents “[i]f a rule or regulation adopted or changed after the tenant enters into the rental agreement does constitute a substantial modification of his bargain, it shall not be valid unless the tenant consents to it in writing,” (Law). The landlord Damian Fox violated Virginia law pursuant to Title 55.1. Subtitle III. Chapter 12. Article 3 § 55.1-1228 (5); § 55.1-1228 (6)(B); and most egregiously Title 18.2. Chapter 6. Article 1. § 18.2-168; under these conditions, Fox now faces imprisonment and up to $100,000 in fines; forfeiting any authority previously held over the matter.
Origin of Dispute
In December, it is evidenced that Williams and Gibson had not paid their rent. Damian Fox obtained a writ of possession utilizing the forcible entry and detainer procedure under state statute. Black’s Law Dictionary defines a writ as “[a] court’s written order, in the name of a state of other competent legal authority, commanding the addressee to do or refrain from doing some specified act;” adding that a writ of entry “allows a person wrongfully dispossessed of real property to enter and retake the property;” (Garner, B., pp. 1927, 1930). Virginia’s Title 8.01 Chapter 3. Article 13. § 8.01-124, Unlawful Entry and Detainer; allows for the tenant to file a motion for judgment in the circuit court alleging that the defendant is in possession and unlawfully withholds from the plaintiff the premises in question. Damian Fox withheld execution of the writ, settling for negotiation between Williams and Gibson; who breached the agreement by the following year.
Injunction Granted
Damian Fox sought to execute the previously withheld writ; in response, tenants Williams and Gibson were granted an injunction against the writ, as the court determined that the negotiation between the two parties acted as a new tenancy, voiding the previous writ issued by the Court. The term injunction is defined by Black’s Law Dictionary as “[a] court order commanding or preventing an action;” adding that one requisite is the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted,” (Garner, B., p. 937). In response to the injunction blocking Fox’s writ issued by the Court, Fox padlocked the door to Williams and Gibson’s room; this act precluded access to Gibson’s medication resulting in two emergency room visits for epileptic seizures.
Relief Sought
The parties The party now seeks injunctive relief; Williams seeking $1000 in damages for the “claimed illegal eviction” and Gibson claiming $5000 in damages for “intentional negligent infliction of emotional distress;” conversely, Fox wants $300 of unpaid rent plus incidental charges, (Frey, M., p. 377). In discovery, the attorney and paralegal found an issue with the property’s qualifications; it was uncompliant with the necessary attributes to be properly qualified as a lodging house.
Alternative Dispute Resolution
The methods of alternative dispute resolution that could be used by the parties would begin as self-help under common law, advancing to negotiation, followed by mediation, and arbitration, while striving to avoid the last resort of litigation. Attorney Martin A. Frey writes that the first step of “[e]valuating the dispute requires the problem be defined, the facts investigated and the law researched, the facts applied to the law, the legal and nonlegal issues evaluated, the parties’ interests identified, a range of solutions identified and evaluated against those interests, and a plan developed in the event a negotiated resolution cannot be achieved, (Frey, M., p. 83). As an instance of informal negotiation has already occurred resulting in an ineffective verbal resolution; Self-Help under common law may be a suitable first step in filing suit against the landlord, by the aggrieved tenants Williams and Gibson. Martin Frey writes, “Self-help may be authorized by statute, common law, or contract…i]f self-help is selected, the dispute is resolved unless self-help does not fully satisfy the other party’s obligations or self-help has been exercised improperly,” (Frey, M., pp. 29, 45).
Re-engaging in Negotiation would allow the tenants another attempt to resolve the matter directly with the landlord. Martin Frey expounds; “[i]f position-based negotiation is used, the parties distribute the ‘fixed pie.’ If interest-based negotiation is used, the parties can be creative as they distribute an ‘expanded pie,’ (Frey, M., p. 83). Negotiation would allow the disputing parties, namely the landlord and the tenants, to reach a resolution on their own accord, retaining full control of the outcome and solution. Negotiation was previously enacted, leading to a new tenancy; this may not be suitable to re-engage, as the last negotiation resolved in a verbal contract that was inevitably breached. Conversely, the landlord may preclude a resolution by refusing to compromise from his position; as Frey denotes, “[a] party will never agree to a settlement if the settlement does not satisfy the majority of his or her interests, (Frey, M., p. 86).
Mediation precedes third-party adjudication; whereby both parties gain additional perspective over the matter from an impartial third party; while hearing the argument from the opposing party. “[t]he neutral third party may be an evaluator, an ombuds, a mediator, an arbitrator, or a judge,” (Frey, M., p. 36). A mediator would bring authoritative influence to the matter, giving an impartial perspective from an external view, without implementing the view of the courts. The third-party need not be purely influential; when positioned as an arbitrator, they are the ones exclusively decreeing resolution to the dispute. Attorney Martin Frey notes that “[t]he neutral third party may be an evaluator, an ombuds, a mediator, an arbitrator, or a judge,” (Frey, M., p. 36). Arbitration can be utilized in the case that the two parties are unable to resolve the matter with the landlord. Despite the mediator being able to bring resolution to the feuding parties, the arbitrator can adjudicate a decision, with greater authority than the party’s mutual consensus achieved through a successful negotiation.
Litigation is costly and should be avoided as an initial means of dispute resolution as it will further incur costs in order to litigate the case in court. Additionally, “Juries may participate in litigation, private judging, and summary jury trials,” (Frey, M., p. 37). Litigation should be used as a last resort as, “[l]itigation does not produce a compromise,” and can be appealed, (Frey, M., p. 20). The landlord has already lost money in the ordeal, alongside the tenants who have additionally lost their dignity being derived of their lodging after negotiating a mutual agreement. Although Williams and Gibson have breached the agreement through nonpayment, the landlord still bears obligations that he must uphold in accordance with Virginia State law. The landlord cannot take the place of the Sheriff, thereby padlocking the tenants from their own residence, and preventing them from accessing necessary medication; an act that was not without repercussions. Fox holds a duty as a landlord to re-certify his housing with the appropriate credentials; fix his building’s communal kitchen; and let his reactionary behavior be a personal reminder to himself of what specifically to avoid in any future incident that should occur with another tenant.
The benefit to litigation and arbitration is that a binding resolution will be made in accordance with the law; its negatives include the losing party’s ability to file for an appeal alongside the costly expenses both parties can expect to incur. Mediation would allow the parties to maintain control over their dispute, while finding civility in their solution. The difference between mediation and negotiation is the weighing influence of an authoritative neutral party found in mediation that was absent from the first negotiation that the parties commenced to engage in. Moreover, the $300 back rent could be paid; proceeding with unilateral action against landlord Damian Fox, by the tenants, Williams and Gibson. Self-Help must be rooted in common law, as it often relies on a breach of contract; in this instance it was not Gibson and Williams who were at fault, but the landlord who escalated his own justice, apart from Virginia’s established law.
No matter the form of dispute resolution, a binding resolution must occur; one that is enumerated, to establish precedence should future conflicts arise. This can occur by mediation-arbitration and would likely be the best candidate for alternative dispute resolution; allowing both parties to attempt to re-negotiate before placing the matter in the hands of a neutral third party. Beyond directing civil disputes to an adjudicator, we must resolve our own disputes. As Solomon scribed in Ecclesiastes, “I said to myself, ‘God will bring into judgment both the righteous and the wicked, for there will be a time for every activity, a time to judge every deed,’” (Ecclesiastes 3:17; NIV). Scripture reminds us those who do not resist conflict are incapable of subduing it in resolution. Jesus declares that in times of disputation, we must seek a resolution, thereby decreeing “[a]sk, and it will be given to you; seek, and you will find; knock, and it will be opened to you. For everyone who asks receives, and the one who seeks finds, and to the one who knocks it will be opened,” (Matthew 7:7-8; ESV). No matter the resolution, the parties must remain willing to engage in civil communication to reach a proper and unanimously favorable resolution.
Virginia Law
Timeframe
Virginia law governs the timespan and authority surrounding the execution of the writ of eviction; Virginia’s Title 8.01. Chapter 18. § 8.01-471 governs the timespan of the issued writ of eviction in unlawful entry and detainer, thereby stating;
[w]rits of eviction, in case of unlawful entry and detainer, shall be issued within 180 days from the date of judgment for possession and shall be made returnable within 30 days from the date of issuing the writ, and any executed writ shall be returned to the issuing clerk by the sheriff executing such writ, (VALaw).
The sheriff is responsible for executing such writ; Damian Fox is not a sheriff, therefore should not have padlocked the door upon resolving the previous dispute through negotiation. The Central Virginia Legal Aid Society (CVLAS) asserts that;
[t]he Writ of Possession is the court form (usually on yellow paper) that allows the Sheriff to evict a tenant. Only the Sheriff, or some other law enforcement officer, can make you leave, or put you and your belongings out. Your landlord can not make you leave, or put you and your belongings out… you cannot be evicted until your 10 day appeal period has passed, (VALegalAid). Virginia’s Legal Aid Society submits “[t]he Sheriff must give you at least 72 hours advance notice of the eviction, and usually gives about 7-10 days,” (CVLAS).
Furthermore, the Central Virginia Legal Aid Society asserts that the landlord cannot make the tenant leave, or take possessions of the tenants belongings. For this to occur, the possessions have to be considered abandoned, for possessions to be considered abandoned by the State of Virginia, after the Sheriff changes the locks, there will be a 24-hour period allowed for the tenants to reclaim their possessions before they are considered abandoned.
The CVLAS writes;
[a]s of July 1, 2019, tenants will get a final chance to pay their rent late and stay, which is an extended right of redemption (extended right to pay and stay). Under the extended right of redemption, you can pay the landlord, the landlord’s attorney, or the court all amounts owed as of two business days before the Sheriff’s scheduled eviction date,” (CVLAS).
Contractual Breach
A writ of eviction may be requested by the plaintiff or the plaintiff's attorney or agent; but the eviction itself must be executed by a Sheriff. Virginia’s Title 55.1. Subtitle III. Chapter 12. Article 2. § 55.1-1225, protects the tenant from unacknowledged changes from occurring without receiving notice from the landlord.
The law reads that “[a] notice of any change by a landlord or tenant in any terms or provisions of a tenancy at will constitute a notice to vacate the premises, and such notice of change shall be given in accordance with the terms of the rental agreement, if any, or as otherwise required by law. 1974, c. 680, § 55-248.15; 2000, c. 760; 2019, c. 712,” (VALaw). According to, Virginia’s Title 55.1. Subtitle III. Chapter 12. Article 2. 55.1-1220 (3), “[a] landlord shallkeep all common areas shared by two or more dwelling units of a multifamily premises in a clean and structurally safe condition;” thereby this section is correlative with subdivision D.
Subdivision D states that;
[t]he landlord and tenant may agree in writing that the tenant perform the landlord's duties specified in subdivisions A 3, 6, and 7 and also specified repairs, maintenance tasks, alterations, and remodeling, but only if the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord and if the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises, (VALaw).
Eviction
Virginia’s Title 55.1. Subtitle III. Chapter 12. Article 5. § 55.1-1253 (A) reads that;
[t]he landlord or the tenant may terminate a week-to-week tenancy by serving a written notice on the other at least seven days prior to the next rent due date. The landlord or the tenant may terminate a month-to-month tenancy by serving a written notice on the other at least thirty days prior to the next rent due date, unless the rental agreement provides for a different notice period. The landlord and the tenant may agree in writing to an early termination of a rental agreement. In the event that no such agreement is reached, the provisions of § 55.1-1251 shall control, (VALaw).
Virginia’s Title 55.1. Subtitle III. Chapter 13. § 55.1-1315 declares that Damian Fox’s eviction was itself unlawfully conducted. Nowhere in its legislation does it state that a landlord can act on behalf of a sheriff by removing the tenants before proper notice has been given; nor does it advocate Fox’s action of padlocking the unit, refusing his tenants entry.
Virginia’s Title 55.1. Subtitle III. Chapter 13. § 55.1-1315 reads;
“a landlord may only evict a tenant for nonpayment of rent; violation of building and housing code; violation of a law that affects the “health, safety, and welfare of the tenant or others;” or “two or more violations of any rule or provision of the rental agreement occurring within a six-month period,” 1992, c. 709, § 55-248.50:1; 2019, c. 712,” (VALaw).
Forging Public Records
Virginia’s Title 18.2. Chapter 6. Article 1. § 18.2-168, Forging public records, etc. reads;
[i]f any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony. Code 1950, § 18.1-92; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 146. (VALaw).
Under Virginia’s § 18.2-168 Damian Fox is guilty of a Class 4 Felony, for falsifying public records to state that his lodging unit was certified by the Certificate of Occupancy issued by the Virginia City’s Department of Building Inspection. This certification never actualized nor occurred; therefore Damian Fox’s contract is breached and intended lease is null, voiding any enumerated obligation the tenants Williams and Gibson hold to pay to the landlord. In Virginia, a Class 4 Felony is punishable under Title 18.2. Chapter 1. Article 3. § 18.2-10 (d) and carries a term of imprisonment of “not less than two years nor more than 10 years” alongside a fine, subject to subdivision (g), “of not more than $100,000,” (VALaw).
Federal Law
The Supreme Court held in 1946 that, New York’s 1944 amendment to its Multiple Dwelling Law concerning lodging houses should conform with new requirements, writing;
“[t]he law does not violate the due process clause of the Fourteenth Amendment, since it is within the police power of the State and the owner of property does not acquire immunity against the exercise of the police power by constructing it in full compliance with existing laws; P. 328 U. S. 82,” (Justia).
The Court noted an absence of similar lodging houses of the same category that would similarly evade the new requirements; ultimately ruling that the law did not violate the Fourteenth Amendment’s Equal Protection Clause, as it did not consider future lodging houses; the court stated there needed that the Court’s established precedence for the Equal Protections Clause was empirical evidence, not mere speculation. Pp. 328 U. S. 83-85. (See Queenside Hills Realty Co., Inc. v. Saxl, 328 U.S. 80 (1946)).
The Equal Protection Clause does not apply here, as the landlord did not operate within the proper jurisdiction nor act legally, therefore it cannot held that Fox’s conduct is equal to that of a lawfully abiding landlord, who bears official certification, without falsification. The Equal Protection Clause does apply to the future proceedings against Damian Fox for falsifying records and committing fraud.
Scriptural Correlation
We are reminded in Luke to make personal discernment, independent of external third-party adjudication; as Luke scribed,“[a]nd why do you not judge for yourselves what is right? As you go with your accuser before the magistrate, make an effort to settle with him on the way, lest he drag you to the judge, and the judge hand you over to the officer, and the officer put you in prison. (Luke 12:57-58; ESV). Matthew scribed a correlative decree; whereby Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbor as yourself.’ All the Law and the Prophets hang on these two commandments,” (Matthew 22:37-40; NIV). The Old Testament reflects on contemporary tenancy; as God decrees “[i]f you want to live securely in the land, follow my decrees and obey my regulations…The land must never be sold on a permanent basis, for the land belongs to me. You are only foreigners and tenant farmers working for me,” (Leviticus 25:18, 23; NLT). As the Lord declared of landlords through Amos, “[f]or I know your transgressions are many and your sins are great, You who distress the righteous and accept bribes And turn aside the poor in the gate. Therefore, at such a time the prudent person keeps silent, for it is an evil time. Seek good and not evil, that you may live; And thus may the LORD God of hosts be with you, Just as you have said! Hate evil, love good, And establish justice in the gate!” (Amos 5:12-15; NASB). As Jesus reminds landlords, “[f]or this reason, the kingdom of heaven can be compared to a king who wanted to settle accounts with his servants,” (Matthew 18:23; CSB).
Legal Analysis
Damian Fox acted irrationally as landlord, thereby bypassing the expectations of the American justice system; taking matters into his own hands. The negotiation discussed between his tenants re-established residency under new conditions, thereby allowing for an injunction to be filed against the landlord’s previously withheld writ to evict. The attorney and paralegal declared that Fox did not possess a Certificate of Occupancy issued by the Virginia City’s Department of Building Inspection that approved the property for residence as a “lodging house.” In accordance with Virginia law, Damian Fox produced multiple violations executing his own judgment over the situation; infringing on his contractual obligation to the tenants. The enumerated fact that all transactions must be entered in good faith and not in malice; precludes a landlord from evading their evident obligations by contract. The landlord was responsible for ensuring the kitchen was functional and sanitary; the kitchen was dysfunctional per Title 55.1. Subtitle III. Chapter 12. Article 2. § 55.1-1220 (3); therefore, Fox breached contractual obligation. Moreover, the landlord did not provide adequate written notice to previous tenants Williams and Gibson after a new tenancy was re-established; per Title 55.1. Subtitle III. Chapter 12. Article 5. § 55.1-1253. The parties then proceeded to negotiate a resolution, whereby the landlord withheld the court-issued writ; declining to remove the tenants. Furthermore, per Virginia law Title 55.1. Subtitle III. Chapter 13. § 55.1-1315 (5), two or more violations had not officially been recorded within a six-month period, cycling back to the previously stated fact that no written notice was given after the re-establishment of the tenancy.
Conclusion
In conclusion, there exists an overwhelming accumulation of evidence against the actions of the landlord. The tenant’s failure to pay does not negate the total validity of Virginia law. The landlord voided his own responsibility by omitting to account for his contractual obligations; therefore redacting his legal authority over the matter. Further, the landlord enacted cruel and unusual punishment on his tenant, commandeering the position of sheriff and padlocking the unit; revoking the tenant’s access to medication. Fox’s failure to uphold contractual obligation placed Gibson in a life-threatening condition. Conclusively, Fox can be charged with fraud as it was later discovered he had not met the proper conditions required to be considered “lodging;” rendering the contract null; id est Damian Fox cannot be legally considered a landlord by any account.
Bibliography
CVLAS. (Accessed December 15th, 2023). Writ of Eviction (Eviction by the Sheriff). https://www.valegalaid.org/files/E095B726-FCD8-81C1-17DC-A16C7ED73FFF/attachments/0D50674E-2BDD-4A17-A0A3-C3BFB9E0209D/writ-of-eviction-2019.pdf
Garner, B.A. (2021). Black's Law Dictionary, Eleventh Edition. St. Paul, MN: Thomson Reuters.
VALaw. (Accessed December 13th, 2023). § 8.01-471. Time period for issuing writs of eviction in unlawful entry and detainer; when returnable. https://law.lis.virginia.gov/vacode/title8.01/chapter18/section8.01-471/.
VALaw. (Accessed December 15th, 2023). § 18.2-168. Forging public records, etc. https://law.lis.virginia.gov/vacode/title18.2/chapter6/section18.2-168/.
VALaw. (Accessed December 14th, 2023). Code of Virginia Code - Article 5. Landlord Remedies. https://law.lis.virginia.gov/vacodefull/title55.1/chapter12/article5/.
VALaw. (Accessed December 13th, 2023). § 55.1-1315. Eviction of tenant. https://law.lis.virginia.gov/vacode/title55.1/chapter13/section55.1-1315/.
VALaw. (Accessed December 14th, 2023). § 55.1-1228. Rules and regulations. https://law.lis.virginia.gov/vacode/55.1-1228/.