Owner Must Show Material Noncompliance with Lease

Facts: The lease between an owner and a Section 8 resident included an addendum providing that "[t]he owner shall not terminate the lease except for ... [m]aterial noncompliance with the lease." The addendum further specified that before terminating the lease, the owner must give the resident written notice stating the date of termination, explaining the reasons for the termination, and notifying the resident of her right to present defenses in a court action.

The owner served the resident with a 10-day notice to comply with the lease or vacate. The notice alleged several violations of a house rule requiring that "balconies and patios shall be kept neat and clean at all times." The notice stated that a plywood panel along the inside of the resident's balcony deck railing violated this regulation. She was directed to remove the plywood and to take action to prevent materials from falling through her deck within 10 days or to surrender possession of the premises. The resident was informed that she had the right to "defend this action in a court of law" and the right "to discuss this termination with the landlord" within the 10-day period.

The resident cleaned the deck and covered the decking with a plastic tarp. She conveyed to the owner several reasons for the presence of the plywood, but the owner refused to exempt the plywood panel from the 10-day notice requirement. The resident removed the plywood 14 days after receiving the notice.

The owner then filed an eviction lawsuit. The trial court ruled for the owner, and the resident appealed.

Ruling: A Washington appeals court reversed the lower court's decision and sent the case back to trial.

Reasoning: Because both federal law and the lease addendum prohibited the termination of a tenancy in the absence of a Section 8 tenant's material noncompliance with the lease, the trial court erred by determining that she had unlawfully detained the premises without first determining whether her conduct constituted material noncompliance.

The appeals court noted that every Section 8 lease had to include a HUD-required tenancy addendum, 24 C.F.R. §983.256. The protections provided by the lease addendum and by federal law were properly considered as limitations to the state's unlawful possession statute. In order to determine if the tenant had unlawfully possessed the premises, the trial court was required to determine whether her failure to comply with the owner's notice to remove the plywood panel within 10 days constituted material noncompliance with the terms of the lease.

• Indigo Real Estate Services, Inc. v. Wadsworth, July 2012