Shires Housing, Inc. v. Carolyn S. Brown and William A. Shepard, II

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2017 VT 60
No. 2016-323
Shires Housing, Inc. Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Civil Division
Carolyn S. Brown and William A. Shepard, II March Term, 2017
John W. Valente, J.
Michael S. Munson of Barr, Sternberg, Moss, Silver & Munson, PC, Bennington, for
Plaintiff-Appellee.
Maureen A. O’Reilly, Vermont Legal Aid, Inc., Rutland, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. This interlocutory appeal arises out of a mobile home park eviction
in which landlord, Shires Housing, Inc., failed to provide tenant, Carolyn Brown, with written
notice of tenancy termination before filing for eviction under the Mobile Home Parks Act. The
trial court denied defendant’s Vermont Rule of Civil Procedure 12(b)(6) motion to dismiss, ruling
that 10 V.S.A. § 6237(a)(3) contains an exception to the notice requirement. Because we conclude
that the relevant provision of the Mobile Home Parks Act is ambiguous and because the available
tools of statutory interpretation all indicate that the Act requires preeviction notice, we reverse.
¶ 2. Tenant and her cotenant leased lot 19 in landlord’s Willows Mobile Home Park in
Bennington, Vermont. Tenant’s lease prohibited “any criminal activity including illegal drug-
related activity on or near the premises” and stated that “such criminal activity shall be cause for
termination of the tenancy.” The lease also required the park owner or manager to “provide the
[r]esident with written notice of the reason for an intended eviction.” On February 29, 2016,
landlord filed a complaint for eviction against tenant and her cotenant, alleging cotenant and a
guest engaged in illegal drug-related activity on the premises. It is undisputed that landlord did
not provide written notice prior to initiating the eviction proceedings.
¶ 3. Landlord served tenant with a complaint for ejectment on March 24, 2016. On
April 14, 2016, tenant filed a motion to dismiss, arguing that: (1) the complaint failed to allege
prior notice, which she argued was required under 10 V.S.A. § 6237(a)(2); (2) Rule 12.2.1
promulgated by the Department of Housing and Community Development (the Department)
required prior notice unless the tenant had committed another violation within the last six months;
and (3) landlord failed to attach a copy of the lease to the complaint, as required by 12 V.S.A.
§ 4852 and 10 V.S.A. § 6204(c) (applying 12 V.S.A. § 4852 to rental of mobile homes). Landlord
filed a response on April 28, 2016, arguing: (1) under 10 V.S.A. § 6237(a)(3), no prior written
notice is required when the cause for termination is a substantial lease violation; (2) the agency
rule conflicts with § 6237 and should be overturned; and (3) a copy of the lease was attached to
the complaint.
¶ 4. The trial court denied tenant’s motion to dismiss, ruling that § 6237(a)
unambiguously contains an exception to the notice requirement when a tenant causes a substantial
violation of the lease terms. In reaching that conclusion, the court noted that two other trial courts
had considered the same question and had ruled in favor of the tenants, although the courts did so
on different grounds. Compare Garden Homes Mgmt. Corp. v. Marchand, No. 251-7-12 Bncv,
slip op. (Vt. Super. Ct. Sept. 18, 2012) (finding statute ambiguous and deferring to agency
interpretation), with Bean v. Bickford, No. 164-05-08 Cacv, 2009 WL 8019257 (Vt. Super. Ct.
May 22, 2009) (finding that statute unambiguously does requires ”extra requirement of notice” of
2
intent to intiitate eviction proceeding). The court also acknowledged that its conclusion was “the
opposite of the one reached by the Department.” The court nevertheless found that the plain
meaning of § 6237(a) created “an exception to the notice requirement in the event that there is a
substantial violation of a lease term.”
¶ 5. On July 22, 2016, tenant requested permission to file an interlocutory appeal,
arguing the issue of written notice of tenancy termination is a controlling question of law about
which there exists a substantial ground for difference of opinion. See V.R.A.P. 5(b) (providing
that “superior court must permit an appeal from an interlocutory order or ruling” if order or ruling
“involves a controlling question of law about which there exists substantial ground for difference
of opinion” and immediate appeal “may materially advance the termination of the litigation”). The
court granted permission, citing the two previous contradictory trial court decisions and the lack
of caselaw from this Court to guide the trial courts.
¶ 6. On appeal, tenant argues the trial court’s order should be reversed for three reasons.
First, an ejectment action cannot proceed in the absence of a written notice of tenancy termination.
Second, the trial court incorrectly found § 6237(a) to be clear on its face. Third, the trial court
should have deferred to the Department’s rule. We agree with tenant that 10 V.S.A. § 6237(a) is
ambiguous, and that the maxims of statutory construction support tenant’s construction of the
statute. We therefore reverse.1
¶ 7. We review a trial court’s decision on a motion to dismiss de novo, applying the
same standard as the lower court and taking to be true all facts as pleaded in the complaint, without
considering “contravening assertions” in the defendant’s pleadings. Birchwood Land Co. v.
1
Tenant did not argue at the trial court or in the present appeal that landlord violated the
terms of her lease by failing to provide “written notice of the reason for an intended eviction” as
required in the lease. This Court will not address an issue on appeal that the parties did not raise
below, nor will we search the record for error. Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459,
752 A.2d 26, 33 (2000).
3
Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420, 115 A.3d 1009. Accordingly, our review “is limited to
determining ‘whether the bare allegations of the complaint are sufficient to state a claim.’ ” Id.
(quoting Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 7, 186 Vt. 605, 987 A.2d 258 (mem.)).
¶ 8. Our review begins with the language of the statute. Section 6237(a) provides:
A leaseholder may be evicted only for nonpayment of rent or for a
substantial violation of the lease terms of the mobile home
park . . . and only in accordance with the following procedure:
....
(2) Prior to the commencement of any eviction proceeding, the
park owner shall notify the leaseholder by certified or registered
mail, except as provided in subdivision (3) of this subsection:
(A) of the grounds for an eviction proceeding;
....
(3) A substantial violation of the lease terms, of the mobile
home park, or an additional nonpayment of rent occurring within
six months of the giving of the notice referred to in subdivision
(2) of this subsection may result in immediate eviction
proceedings.
The parties’ disagreement in this case involves the interplay between subsections (2) and (3).
Specifically, tenant argues that the statutory language is unclear on its face, as evidenced by the
fact that “the parties, several trial courts and the Department have found subsection (3) to be
uncertain of meaning.” Landlord, on the other hand, argues that subsection (3) unambiguously
does not require that a landlord provide notice to a tenant of the grounds for eviction prior to
commencing eviction proceedings when the basis for the eviction proceeding is a substantial
violation of the lease terms. Because this case reaches this Court on an appeal from a decision on
a motion to dismiss, we take to be true the facts that landlord alleged in its complaint below,
namely, that the basis for the eviction proceeding constituted a substantial lease violation.
Accordingly, the only question we must answer is whether the statute is ambiguous and if so, what
the Legislature intended when it enacted § 6237(a).
4
¶ 9. “Our primary objective in construing a statute is to effectuate the Legislature’s
intent.” Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287, 865 A.2d 350. In accomplishing
this, our first step is to examine the statute’s language because we presume that the Legislature
intended the plain, ordinary meaning of the statutory language. Id. If a statute is clear on its face,
we accept its plain meaning and will not rely on statutory construction, but where the language
creates ambiguity or uncertainty, we resort to statutory construction to ascertain the legislative
intent. In re Hinsdale Farm, 2004 VT 72, ¶ 5, 177 Vt. 115, 858 A.2d 249. In construing legislative
intent, “we must consider the entire statute, including its subject matter, effects and consequences,
as well as the reason for and spirit of the law.” Id. Legislative history, circumstances surrounding
a statute’s enactment, and evidence of the legislative policy at which the statute was aimed are
indications of the Legislature’s intent. Id. Additionally, where a statute is silent or ambiguous and
an agency charged with enforcing the statute has interpreted it, this Court will defer to the agency
interpretation of the statute within its area of expertise. In re Smith, 169 Vt. 162, 169, 730 A.2d
605, 611 (1999); C&S Wholesale Grocers, Inc. v. Dep’t of Taxes, 2016 VT 77A, ¶ 13, __ Vt. __,
155 A.3d 169 (“We defer to agency interpretations of statutes the Legislature has entrusted to their
administration . . . .”). “ ‘Absent compelling indication of an error, interpretation of a statute by
an administrative body responsible for its execution will be sustained on appeal,’ unless it is unjust
or unreasonable.” Laumann v. Dep’t of Public Safety, 2004 VT 60, ¶ 7, 177 Vt. 52, 857 A.2d 309
(quoting Bedini v. Frost, 165 Vt. 167, 169, 678 A.2d 893, 894 (1996)).
¶ 10. The first question we must answer is whether § 6237(a) is ambiguous about what
notice a landlord must provide a mobile home tenant prior to commencing eviction proceedings in
the event of a substantial violation of the lease terms. Giving the statutory language its plain and
ordinary meaning, we conclude that it is ambiguous.
¶ 11. As structured, the statute starts with the premise that all mobile home park eviction
actions must be preceded by notice, unless an exception to the notice requirement applies. See 10
5
V.S.A. § 6237(a)(2) (“Prior to the commencement of any eviction proceeding, the park owner shall
notify the leaseholder by certified or registered mail, except as provided in subdivision (3) of this
subsection: (A) of the grounds for an eviction proceeding . . . . ”). The exception to the notice
requirement in subsection (3) is therefore the focus of our interpretation. Subsection (3) provides
that “[a] substantial violation of the lease terms, of the mobile home park, or an additional
nonpayment of rent occurring within six months of the giving of the notice referred to in
subdivision (2) of this subsection may result in immediate eviction proceedings.” Id. § 6237(a)(3).
Landlord argues that the “plain and clear meaning” of that sentence “is that the park owner must
notify the leaseholder prior to commencing an eviction proceeding unless the grounds for the
eviction is a substantial violation of the lease terms, or a second instance of nonpayment of rent
within six months.” However, that is not what the statute says.
¶ 12. Rather, subsection (3) is unclear about whether the phrase “occurring within six
months” refers only to “an additional nonpayment of rent” or if it also applies to “[a] substantial
violation of the lease terms.” Id. Had the Legislature intended to give the statute the meaning
landlord suggests, it would have been more logical to place the exception that landlord seeks—no
notice required following a substantial lease violation—in its own subsection, instead of placing it
with an exception that is triggered only after the leaseholder has engaged in an “additional”
violation “within six months.” See id. Likewise, to read the statute as landlord suggests would
read the word “any” out of § 6237(a)(2), which says “[p]rior to the commencement of any eviction
proceeding, the park owner shall notify the leaseholder.” (Emphasis added). The most plain and
ordinary meaning of the word “any” is “every,” indicating that § 6237(a)(2)’s rule applies to all
eviction proceedings. See Any, The American Heritage Dictionary of the English Language (5th
ed. 2017), https://ahdictionary.com/word/search.html?q=any [https://perma.cc/4ZCD-49GK].
¶ 13. Additionally, as the trial court observed in Sunset Lake Villa Associates v. Miller,
in its attempt to interpret the language at issue in this case, “the provision is poorly worded and
6
confusing, primarily because it appears to be missing a comma between the words ‘rent’ and
‘occurring,’ ” and “[i]t would not be logical to first say that all evictions, including those for
substantial violations, must be done with notice, and then say that ones for substantial violations
do not need notice.” Sunset Lake Villa Assocs. v. Miller, No. 416-4-15 Cncv, slip op. at 2 (Vt.
Super. Ct. July 6, 2015); see also Garden Homes, No. 251-7-12 Bncv, slip op. at 3 (Vt. Super. Ct.
Sept. 18, 2012) (“10 V.S.A. § 6237(a)(3) is ambiguous about when a park owner must give notice
before starting an eviction proceeding.”). We agree.
¶ 14. In short, it is unclear from the language of the statute itself whether the Legislature
intended to exempt substantial lease violations from the notice requirement or if instead the
Legislature intended the statute to require no notice after a second substantial lease violation within
six months of a first substantial lease violation. Even if landlord is correct that the Legislature
intended to create a general rule in § 6237(a)(2)—notice is required—and then lay out exceptions
to that rule in § 6237(a)(3)—notice is not required—the statute is sufficiently confusing to render
it susceptible to more than one interpretation. Because we conclude that the statute is ambiguous,
and because the agency charged with enforcing the statute has attempted to define it, we must
“seek out the interpretation intended by the statute’s drafters.” See In re Agency of Admin., 141
Vt. 68, 76, 444 A.2d 1349, 1352 (1982).
¶ 15. When this Court interprets the language of an ambiguous statute, we look to a
variety of sources to ascertain legislative intent. In cases where the Legislature has delegated
power to an executive branch agency to implement a statute’s overall objectives, those sources
include the agency’s own interpretation of the statute insofar as the interpretation is within the
agency’s area of expertise, legislative history, and other evidence of the legislative policy at which
the contested provision was aimed. In re Hinsdale Farm, 2004 VT 72, ¶ 5. What is within an
agency’s area of expertise depends on the statutory scheme at issue; here the Department’s areas
of expertise are community block grants, housing programs, and local and regional planning and
7
coordination. 3 V.S.A. § 2472. As such, this Court owes deference to the Department to the extent
that its interpretation of 10 V.S.A. § 6237(a)(2)-(3) draws on its expertise with respect to housing
programs and implementation of housing programs—the broad subject of the Mobile Home Parks
Act—while grammatical construction of the statutory language is a matter traditionally reserved
for the judicial branch. Cf. In re Smith, 169 Vt. at 169-70, 730 A.2d at 611 (acknowledging that
agency is entitled to deference for matters within agency’s area of expertise but that agency is not
entitled to deference for question of burden of proof required because “court is the traditional and
most appropriate forum to prescribe a standard”); Hansen v. C.W. Mears, Inc., 486 N.W.2d 776,
779 (Minn. Ct. App. 1992) (“An agency’s decisions are given some deference in its area of
expertise and field of technical training, education and experience. However, when reviewing
legal conclusions by an agency, this court need not defer to the agency’s decision.” (citations
omitted)). With this in mind, we begin our analysis by looking to the Department’s interpretation
of the statute.
¶ 16. The Legislature charged the Department with creating rules to interpret and enforce
the purposes of the Mobile Home Parks Act—namely, “ ‘to protect the health, safety and welfare
of the residents of mobile home developments.’ ” State Agency of Dev. & Cmty. Affairs v. Bisson,
161 Vt. 8, 14, 632 A.2d 34, 38 (1993) (quoting 1969, No. 291 (Adj. Sess.), § 2). The Department
adopted Rule 12.2.1, pursuant to 10 V.S.A. § 6231(b), which authorizes it to “adopt rules to carry
out” the Mobile Homes Park Act. The Rule provides:
No notice shall be required if . . . a substantial violation is the
second such occurrence within 6 months, and proper notice was
provided with respect to the first non-payment or substantial
violation during the period.
Housing Division Rules Part I: Mobile Home Parks, Code of Vt. Rules 11 020 001,
http://www.lexisnexis.com/hottopics/codeofvtrules/ [https://perma.cc/4YZV-QN32]. The Rule
interprets § 6237 to mean that a landlord is not required to give a tenant notice of eviction when
8
the tenant commits a second substantial violation within six months. The notice required by a
landlord before initiating eviction proceedings is not clearly stated in the statute, and the
Department’s interpretation provides clarity by stating “[n]o notice shall be required if the
nonpayment of rent or a substantial violation is the second such occurrence within 6 months.”
Rule 12.2.1. The trial court found that the Rule conflicts with the statute based on its conclusion
that the statutory language is unambiguous, and the court therefore did not consider the
Legislature’s intent in its analysis.
¶ 17. We also find support for tenant’s position in the context of the Legislature’s intent.
Legislative “intent is most truly derived from a consideration of not only the particular statutory
language, but from the entire enactment, its reason, purpose and consequences.” Lubinsky v. Fair
Haven Zoning Bd., 148 Vt. 47, 50, 527 A.2d 227, 228 (1986). The Legislature that enacted § 6237
found “that ‘there is a substantial need for new housing . . . for moderate and low-income groups,
which need is likely to increase in the future,’ ” and that “ ‘most of the new housing available to
moderate and low-income groups consists of mobile homes.’ ” Bisson, 161 Vt. at 14, 632 A.2d at
38 (quoting 1969, No. 291 (Adj. Sess.), § 1(d), (e)). Thus, the Legislature clearly sought to protect
mobile home park residents. As we emphasized in Bisson, “an underlying purpose of the Mobile
Home Parks Act” is “to give mobile home owners, who can move their homes only at some cost
and with some inconvenience, additional protection against arbitrary eviction.” Id. at 13-14, 632
A.2d at 38. Providing leaseholders with notice grants them an opportunity to defend against the
charges or prepare for their otherwise latent eviction, while granting mobile home renters more
protection than mobile home owners would run afoul of the Legislature’s intent.
¶ 18. As the trial court recognized, its decision afforded greater protection to renters of
mobile homes than owners of mobile homes because renters have a right to at least fourteen days’
notice for substantial lease violations under Title 9, but it failed to address how this result is
consistent with the statute’s express goal of protecting mobile home residents. That the Legislature
9
intended to provide additional protections for mobile home park residents is evidenced by the
language of the statute and its legislative history. Specifically, the Legislature expressed that
mobile home housing accomodates low and moderate income groups, and the use of the word
“only” in § 6237(a) indicates the Legislature’s intent to limit the circumstances under which park
residents may be evicted. This protection acknowledges the limited space availability and expense
of moving mobile homes and seeks to protect mobile home park residents. Additionally, the
Legislature has not seen fit to amend § 6237(a)(2)-(3) since the statute’s enactment in 1973. 1973,
No. 264 (Adj. Sess.), § 2. That fact is relevant because we presume that the Legislature is aware
of the backdrop against which it is legislating, and its failure to act when the Department has
interpreted the statute is an indication that the Department’s interpretation aligns with the
Legislature’s intentions. See Lydy v. Trustaff, Inc., 2013 VT 44, ¶ 11, 194 Vt. 165, 76 A.3d 150
(considering Legislature’s failure to amend statutory language in light of agency interpretation and
concluding that Legislature’s silence implies Legislature’s agreement with agency interpretation).
¶ 19. Moreover, in 2011, the Legislature added the following language to § 6237(a)(4):
“[a] substantial violation of the lease terms based upon criminal activity will be insufficient to
support a judgment of eviction unless the proceeding is commenced no later than 60 days after
arraignment.” 10 V.S.A. § 6237(a)(4); 2011, No. 137 (Adj. Sess.), § 2. This amendment
demonstrates the Legislature’s intent to protect mobile home park residents by preventing park
owners from erroneously evicting residents because of a prior crime. Although the Act is also
intended “ ‘to protect the health, safety and welfare of the residents of mobile home
developments,’ ” Bisson, 161 Vt. at 14, 632 A.2d at 38 (quoting 1969, No. 291 (Adj. Sess.), § 2),
we cannot support landlord’s contention that requiring notice would be contrary to the
Legislature’s intent by preventing owners from speedily evicting persons charged with criminal
activities. The statute and the Department Rule require only that notice be provided before an
eviction action is brought, so the delay occasioned by providing the required notice need not be
10
significant. Further, the mobile home owner shall have “three months from the date of execution
of a writ of possession” to remove or sell the mobile home, unless the Court orders differently. 10
V.S.A. § 6237(e) (emphasis added). Therefore, requiring notification does not put the safety and
welfare of park residents at risk because the statute permits an evictee to remain in the park for up
to three months. Providing notice, even for initial substantial violations of lease terms, does not
hinder a park owner’s ability to timely evict a noncompliant tenant.
¶ 20. The Department Rule aligns with the purpose of the Mobile Home Parks Act—to
provide additional protections for mobile home owners due to the limited availability of space and
the high cost of relocating mobile homes—and the Department’s interpretation relies on its area
of expertise by ensuring that the statutory scheme it is charged with enforcing is given its intended
meaning. See Bisson, 161 Vt. at 14, 632 A.2d at 38. In light of the legislative history and the
purpose of the statute, the agency’s interpretation of the Rule is not clearly erroneous. Therefore,
in the absence of notice required by the Rule, dismissal under V.R.C.P. 12(b)(6) was the
appropriate remedy. See Sweet v. Roy, 173 Vt. 418, 449, 801 A.2d 694, 717 (2002).
Reversed.
FOR THE COURT:
Associate Justice
¶ 21. SKOGLUND, J., dissenting. A cotenant engaged in drug activity in tenant’s
mobile home; this illegal activity substantially violated the lease for the lot where tenant’s mobile
home is located. Subsequently, and without providing tenant with written notice of the intent to
initiate eviction proceedings, landlord commenced eviction proceedings by filing a complaint
against tenant in superior court. Landlord’s action was supported by 10 V.S.A. § 6237(a), which
11
demonstrates a plain legislative intent to dispense with notice when a leaseholder commits a
substantial violation of the lease terms. I dissent.
¶ 22. The relevant part of 10 V.S.A. § 6237(a) provides:
A leaseholder may be evicted only for nonpayment of rent or for a
substantial violation of the lease terms of the mobile home
park . . . and only in accordance with the following procedure:
....
(2) Prior to the commencement of any eviction proceeding, the
park owner shall notify the leaseholder by certified or registered
mail, except as provided in subdivision (3) of this subsection:
(A) of the grounds for an eviction proceeding;
....
(3) A substantial violation of the lease terms, of the mobile
home park, or an additional nonpayment of rent occurring within
six months of the giving of the notice referred to in subdivision
(2) of this subsection may result in immediate eviction
proceedings.
(4) A substantial violation of the lease terms, other than an
uncured nonpayment of rent, will be insufficient to support a
judgment of eviction unless the proceeding is commenced within
60 days of the last alleged violation. A substantial violation of the
lease terms based upon criminal activity will be insufficient to
support a judgment of eviction unless the proceeding is
commenced no later than 60 days after arraignment.
¶ 23. I fail to see the ambiguity. 10 V.S.A. § 6237(a)(2) sets forth the general rule that
any eviction proceeding requires notice and, in the same sentence, indicates that exceptions to the
general rule exist in § 6237(a)(3) (stating that “except as provided in subdivision (3) of this
subsection” (emphasis added)). Subsection (a)(3) then provides two events that can support
immediate eviction proceedings: a “substantial violation of the lease terms” or a “an additional
nonpayment of rent occurring within six months of the giving of the notice referred to in
subdivision (2) of this subsection.” Thus, a park owner may begin eviction proceedings against a
12
leaseholder without notice if the lease is substantially violated or if, within six months of receiving
the eviction-proceeding notice under subdivision (2), the leaseholder failed to pay rent for a second
time. Because the statute’s meaning is plain on its face, I would give effect to this meaning. See
Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983) (“The [plain meaning] rule provides
that when the meaning of a statute is plain on its face it must be enforced according to its terms
and there is no need for construction . . . .”).
¶ 24. More important, this plain reading comports with the overall structure of § 6237
and evinces the Legislature’s clear intent to treat eviction proceedings involving “substantial
violations of the lease” differently from other eviction proceedings. Hill, 143 at 93, 463 A.2d at
233 (“Underlying all other rules of construction is the fundamental rule that we must ascertain and
give effect to the true intent of the legislature . . . .”). In particular, § 6237’s procedural mechanics
for eviction proceedings create a progressive scheme tied to the leaseholder’s culpability for lease
violations. For those instances that the leaseholder bears no fault—“a change in use of the park
land or parts thereof or a termination of the mobile home park”—he or she must have notice prior
to an eviction proceeding. Id. § 6237(a), (a)(2) (providing no exception for these proceedings).
Similarly, notice is still required the first time that a leaseholder does not pay rent. Id. § 6237(a)(3).
But if the leaseholder does not pay rent within six months of an initial nonpayment of rent that
triggers an eviction proceeding, this second failure by the leaseholder to pay rent can result in
immediate eviction and does not require notice to initiate the proceeding. Id. Finally, a leaseholder
who substantially violates the lease is not entitled to notice. This graduated scheme balances a
leaseholder’s interest with the park owner’s interest by decreasing the leaseholder’s procedural
protections relative to the harm the leaseholder causes the park owner and any other leaseholders
in the mobile home park. Similarly, this scheme provides the leaseholder with an opportunity to
cure a violation if the violation does not rise to a substantial level.
13
¶ 25. Moreover, even though the upshot of this procedural system is that a leaseholder
who commits a substantial lease violation has fewer procedural protections, the Legislature still
provided some protections for leaseholders who commit substantial lease violations. Under
§ 6237(a)(4), eviction proceedings for substantial violations of the lease terms must start within
“60 days of the last alleged violation” or “no later than 60 days after arraignment.” These time
limits are specific to violations of lease terms. Likewise, if a court enters an order of eviction, the
court always retains the discretion to determine how and when an evicted leaseholder must comply
with the eviction order. Id. § 6237(e)(2) (stating that “order of eviction pursuant to this section
shall provide that a leaseholder shall sell a mobile home or remove a mobile home from the mobile
home park: (1) within three months from the date of execution of a writ of possession . . . ; or (2)
within another period ordered by the Court in its discretion”).
¶ 26. Overall, the plain language indicates that the Legislature set up a balanced notice
scheme based on the character of the leaseholder’s violation. This is consistent with the purpose
of § 6237 as articulated by this Court: “[Section] 6237 provides owners and renters of mobile
homes, who tend to be lower-income groups that may have difficulty finding alternative housing,
added security from arbitrary eviction.” State Agency of Dev. & Cmty. Affairs v. Bisson, 161 Vt.
8, 14, 632 A.2d 34, 38 (1993). The scheme described above is anything but arbitrary; it is a clear
plan that provides equal weight to all of the competing interests, and the limited procedural
protections for substantial violators of a lease reflect this balancing.
¶ 27. Despite this plain language, tenant and the majority point to two possible sources
of ambiguity and conclude that, because of these claimed ambiguities, the Department of Housing
and Community Development’s interpretation of the statute should be given deference. As tenant
states, to be ambiguous, the statute must be capable of more than one interpretation. See
Ambiguity, Black’s Law Dictionary (10th ed. 2014) (“An uncertainty of meaning based not on the
scope of a word or phrase but on a semantic dichotomy that gives rise to any of two or more quite
14
different but almost equally plausible interpretations.”). But § 6237’s language does not support
more than one plausible interpretation.
¶ 28. The first claimed ambiguity is that “subsection (3) is unclear about whether the
phrase ‘occurring within six months’ refers only to ‘an additional nonpayment of rent’ or if it also
applies to ‘[a] substantial violation of the lease terms.’ ” Ante, ¶ 12. But this phrase is ambiguous
only if a reader ignores a basic tenet of the English language: “[I]f a participial phrase does not
start a sentence, it should modify the noun, pronoun, or noun phrase that most closely precedes it.”
See B. Garner, The Redbook: A Manual on Legal Style § 10.29(b) (2d ed. 2006). Here, the phrase
“occurring within six months of the giving of the notice referred to in subdivision (2) of this
subsection” is a present participial phrase that modifies the noun that closely precedes it—in this
case, “nonpayment.” No rule of language suggests that the participial phrase modifies “[a]
substantial violation of the lease terms.”
¶ 29. The absurdity of this reading becomes clear after examining the two trial court cases
relied on by the majority: Sunset Lake Villa Associates v. Miller, No. 416-4-15 Cncv, slip op. (Vt.
Super. Ct. July 6, 2015) and Garden Homes Management Corp. v. Marchand, No. 251-7-12 Bncv,
slip op. (Vt. Super. Ct. Sept. 18, 2012). In Garden Homes Management Corp., the trial court
confronted a similar issue involving a landlord’s failure to notify a leaseholder of eviction
proceedings for a substantial violation of the lease terms. Garden Homes Managment Corp., No.
251-7-12 Bncv, slip op. at 2. The trial court first looked to the Department’s rule interpreting
§ 6237, which states that notice will not be required if “a substantial violation is the second such
occurrence within 6 months.” Housing Division Rules Part I: Mobile Home Parks, Code of Vt.
Rules 11 020 001, Rule 12.2.1, http://www.lexisnexis.com/hottopics/codeofvtrules/
[https://perma.cc/4YZV-QN32]. Based on the Department’s interpretation, the trial court
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concluded an ambiguity existed and applied the Department’s rule.2 Garden Homes Mgmt. Corp.,
No. 416-4-15, slip op. at 5. Subsequently, the trial court in Sunset Lake Villa Associates relied on
Garden Homes Management Corp. and further noted that § 6237 “is poorly worded and confusing,
primarily because it appears to be missing a comma between the words ‘rent’ and ‘occurring.’ ”
Sunset Lake Villa Associates v. Miller, No. 416-4-15, slip op. at 2. As a result, according to the
trial courts, the Department, and the majority, a properly punctuated version of § 6237 would
include a comma between “rent” and “occurring.” See ante, ¶ 13.
¶ 30. This phantom comma creates an ambiguity where none was present. 3 As explained
above, the phrase “occurring within six months of the giving of the notice referred to in subdivision
(2) of this subsection” is a present participial phrase that modifies the noun “nonpayment.” See
10 V.S.A. § 6237(a)(3). To ensure a reader’s understanding, a present participial phrase should
be placed close to the noun or pronoun it modifies. See Garner, supra, § 10.29(b). A comma
before the present participial phrase creates a dangling participial phrase; that is, the phrase is
“dangling” because it is unclear what the phrase modifies. Id. § 10.29(c); see also Univ. of
Chicago, Chicago Manual of Style § 5.112 (16th ed. 2010) (“A participle that has no syntactical
relationship with the nearest subject is called a dangling participle or a dangler. Often, the sentence
2
The trial court’s circular reasoning in Garden Homes Management Corp. ignores our
precedent. A court should look to the agency interpretation to determine the meaning of a statute
only if the court first determines that the statute is ambiguous. See In re Peel Gallery of Fine Arts,
149 Vt. 348, 351, 543 A.2d 695, 697 (1988) (“[W]e only need to look to the administrative
construction of the regulation if the meaning of the words used is in doubt.” (quotation omitted)).
An agency’s incorrect interpretation of a statute does not establish that the statute is ambiguous.
Delozier v. State, 160 Vt. 426, 434, 631 A.2d 228, 232 (1993) (stating that “to the extent that a
rule conflicts with the statute, the rule cannot be sustained”).
3
Moreover, the presence or absence of punctuation should not influence the court’s
construction where, as in this case, the intent of the Legislature may be determined from
consideration of the statute as a whole. Hill, 143 Vt. at 94, 463 A.2d at 234 (“[I]t is the general
rule that punctuation, per se, forms no part of a statute and will not govern its construction as
against the manifest intent of the [L]egislature ascertained from a consideration of the statute as a
whole.”).
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is illogical . . . .”). Here, placing a comma between “rent” and “occurring” would create a dangler
and result in an ambiguity because it would be unclear whether the phrase modified “substantial
violation of the lease terms” or “an additional nonpayment of rent.” In other words, the phantom
comma produces the very ambiguity that the majority claims already exists. Rather than
manufacture an ambiguity out of thin air, I would follow the clear intent of the language: the
present participial phrase “occurring within six months of the giving of the notice referred to in
subdivision (2) of this subsection” modifies “nonpayment,” the closest noun preceding the phrase.
Garner, supra, § 10.29(b).
¶ 31. The second claimed ambiguity involves the interplay between § 6237(a)(2) and
§ 6237(a)(3). The argument is that, because § 6237(a)(2) states that “prior to the commencement
of any eviction proceeding” a park owner must provide notice to a leaseholder, notice is required
regardless of the violation type. This argument ignores several key components of the statute’s
plain language. Most important, it reads out the third phrase in § 6237(a)(2), which provides
exceptions to the general notice requirement. Id. (“Prior to the commencement of any eviction
proceeding, the park owner shall notify the leaseholder by certified or registered mail, except as
provided in subdivision (3) of this subsection . . . .” (emphasis added)). Similarly, this argument
disregards the word “additional” in § 6237(a)(3). In that section, the Legislature modified
“nonpayment of rent” with the word “additional,” id., but omitted the word “additional” when it
described a “substantial violation of the lease terms.” Id. (listing “an additional nonpayment of
rent” (emphasis added)). If all violations required notice, the Legislature would not have used the
word “additional” to distinguish between “nonpayment of rent” and “substantial violation of the
lease terms.” Finally, as described above, the phrase “occurring within six months of the giving
of the notice referred to in subdivision (2)” modifies “nonpayment of rent.” Combined with the
word “additional,” the phrase creates distinct procedural protections for leaseholders who fail to
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pay rent. By ignoring these phrases and their function in the statute, tenant and the majority argue
that § 6237 is ambiguous; however, the better course is to give effect to all parts of the statute.
¶ 32. In short, § 6237’s language is not ambiguous. I would stand on the statute’s plain
language, which creates a graduated procedural scheme depending on the type of violation. In this
case, tenant committed a substantial violation of the lease terms; as a result, landlord was not
required under 10 V.S.A. § 6237(a)(3) to provide notice before initiating eviction proceedings.
Associate Justice
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