Golden Key, LLC v. Harper

Golden Key, LLC v. Harper (00-085); 170 Vt. 641; 751 A.2d 798

[Filed 10-Apr-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 00-085

                              APRIL TERM, 2000

Golden Key, LLC	                       }	APPEALED FROM:
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
Marie Harper	                       }
                                       }	DOCKET NO. S1226-99CnC	

             In the above-entitled cause, the Clerk will enter:


       Tenant Marie Harper appeals from a summary judgment in favor of
  landlord Golden Key, LLC, in  an eviction proceeding.  Tenant argues that
  the court erred in finding that 27 V.S.A. § 1333, which  provides extended
  notice requirements for residential rental units being converted into 
  condominiums, is inapplicable where the existing building is to be
  demolished and replaced by  newly-built condominiums.  Because we agree
  with the court's determination, we affirm.

       Marie Harper, who is disabled, has rented an apartment in South
  Burlington from her landlord,  Golden Key, LLC, on a month-to-month basis
  for three years.  Landlord intends to use the land on  which the apartment
  building is located, as well as adjacent property, to erect condominium
  units.  The plans include demolishing the existing buildings to make way
  for the new construction.  After  receiving final approval from the
  Planning Commission to build the condominiums, landlord served  tenant with
  a notice to vacate, followed by a summons and complaint for a no cause
  eviction.   Landlord provided sixty days notice in accordance with 9 V.S.A.
  § 4467, which applies to the  termination of residential rental agreements. 
  Tenant answered the complaint, raising the defense of  failure to give one
  year written notice to vacate according to the Condominium Ownership Act. 
  See  27 V.S.A. § 1333.  Both parties filed motions for summary judgment on
  the issue of the applicability  of the Condominium Ownership Act, and the
  trial court granted judgment in favor of landlord.

       This Court reviews a motion for summary judgment using the same
  standard as the trial court.  See  O'Donnell v. Bank of Vermont, 166 Vt.
  221, 224, 692 A.2d 1212, 1214 (1997).  Summary judgment  is appropriate
  when the moving party has demonstrated that there are no genuine issues of
  material  fact and it is entitled to judgment as a matter of law.  See id. 
  There are no disputed facts in this case.  The outcome hinges solely on a
  question of law, that is, which notice period applies.

       Residential rental agreements are generally governed by Chapter 137 of
  Title 9.  In a case like this  one, where there is no written rental
  agreement and rent is payable on a monthly basis, only sixty  days written
  notice is required to terminate the tenancy for no cause.  9 V.S.A. § 4467
  (c)(1).   However, 9 V.S.A. § 4467 (g) provides an exception: if the
  building is being converted to  condominiums, notice must be given in
  accordance with the Condominium Ownership Act.  See 27  V.S.A. § 1331-39.

 

       The Condominium Ownership Act provides protection to tenants whose
  rental units are being  converted to condominiums.  Section 1333(b)
  provides that if a building is to be "converted", the  landlord must give
  each handicapped tenant a minimum of one year written notice to vacate.  
  Conversion is defined to mean a change in character of residential real
  property from a rental to an  ownership basis.  27 V.S.A. § 1331(2).  

       We conclude tenant's apartment is not being "converted" within the
  meaning of 9 V.S.A.  §4467(g) and 27 V.S.A. §§ 1331 and 1333.  Conversion
  from rental units to condominiums generally  involves little or no
  structural change to the property.  See, e.g., Royal Parke Corp. v. Town of 
  Essex,  145 Vt. 376, 378, 488 A.2d 766, 767 (1985) ("At the time of the
  change from apartment  complex to condominium the property remained
  physically unaltered."); In re Lowe, 164 Vt. 167,  171, 666 A.2d 1178,
  1181(1995) (conversion from rental property to condominium ownership is 
  change of ownership, not change of use, and thus, beyond scope of zoning
  regulation).  In this case,  the entire building is being demolished.  See
  Park East Apartments, Inc. v. 233 East 86th Street  Corp., 529 N.Y.S.2d 674, 679 (N.Y. Civ. Ct. 1988) (newly constructed condominium building built 
  on site of former, demolished building, not a "conversion project" within
  meaning of Condominium  and Cooperative Abuse Relief Act), aff'd, 543 N.Y.S.2d 610 (S. Ct. N.Y. 1989).  The demolition and  new construction in
  this case  is not a mere "change in character."  Thus, it is plain that the 
  Condominium Ownership Act does not apply.  See Russell v. Armitage, 166 Vt.
  392, 403, 697 A.2d 630, 637 (1997) (when meaning of statute is plain on
  face, we enforce it according to its terms).  

       Tenant points out that the entire subsection of the Condominium Act
  dealing with the  protection of tenants in the conversion of rental units
  is made applicable to "the conversion of all  residential rental property
  in the state" by 27 V.S.A. § 1332, and that "property" is defined earlier 
  in the chapter as including the land and the buildings thereon.  See 27
  V.S.A. § 1302.  Because the  land in this case is being converted from
  rental use to condominium use, the tenant argues, the longer  notice period
  set out in § 1333 should apply.  Tenant's argument is not persuasive,
  however, because  the specific sections which pertain to notice of eviction
  refer to the "building," not the "property."  See Stevenson v. Capital Fire
  Mut. Aid Sys., Inc., 163 Vt. 623, 625, 661 A.2d 86, 88 (1995) (more 
  specific statutory provision prevails according to its terms over more
  general statutory provision).  Because the building in this case is not
  being converted into condominiums, the extended notice  provisions of §
  1333 do not apply.

       Affirmed.  Tenant's motion to stay execution is extended and shall
  expire on April 14, 2000,  at 4:30 p.m.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice