{ "id": 8527945, "name": "LONG DRIVE APARTMENTS, Plaintiff/Appellee v. TESSIE PARKER, Defendant/Appellant", "name_abbreviation": "Long Drive Apartments v. Parker", "decision_date": "1992-10-20", "docket_number": "No. 9120DC898", "first_page": "724", "last_page": "730", "citations": [ { "type": "official", "cite": "107 N.C. App. 724" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "379 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "94 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526805 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0184-01" ] }, { "cite": "260 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553996 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0648-01" ] }, { "cite": "675 F.2d 1342", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1175643 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f2d/675/1342-01" ] }, { "cite": "328 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718349 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0277-01" ] }, { "cite": "320 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523538 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0550-01" ] } ], "analysis": { "cardinality": 602, "char_count": 13658, "ocr_confidence": 0.769, "pagerank": { "raw": 2.119195045139504e-07, "percentile": 0.7643100041739885 }, "sha256": "87b5a1ef5c252907faea031185a90939bc89b552592e5bf683c8c96a40e70f3e", "simhash": "1:f3ac4c3b172f8046", "word_count": 2105 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and GREENE concur." ], "parties": [ "LONG DRIVE APARTMENTS, Plaintiff/Appellee v. TESSIE PARKER, Defendant/Appellant" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant first contends that the trial court erred in concluding that plaintiff was entitled to possession of the premises because plaintiff did not prove \u201cmaterial noncompliance\u201d with the lease. Second, defendant contends that the trial court erroneously concluded that plaintiff had not waived its right to terminate the lease. We find no error.\nDefendant asserts that the alleged lease violations do not rise to the level of \u201cmaterial noncompliance\u201d so as to warrant ejectment. Paragraph 23 of the lease agreement provides:\nThe Landlord may terminate this Agreement only for: (1) the Tenant\u2019s material noncompliance with the terms of this Agreement; (2) the Tenant\u2019s material failure to carry out obligations under any State Landlord and Tenant Act; or (3) other good cause. . . . Material noncompliance includes, but is not limited to, nonpayment of rent, beyond any grace period available under State law; failure to reimburse the Landlord within 30 days for repairs made under Paragraph 11 of this Agreement; three late payments in a twelve month period; permitting unauthorized persons to live in the unit; serious or repeated damage to the unit or common areas; creation of physical hazards; serious or repeated interference with the rights and quiet enjoyment of other tenants; failure to repay unauthorized assistance payments; and giving the Landlord false information regarding income or other factors considered in determining the Tenant\u2019s rent.\nDefendant argues that \u201cmaterial noncompliance\u201d is conduct which would constitute \u201cgood cause\u201d for termination. Defendant asserts that to uphold an eviction for \u201cgood cause,\u201d it must be shown that a tenant\u2019s conduct so seriously injures or poses a hazard to the complex or other tenants that the tenant is no longer entitled to occupancy. Therefore, defendant contends, plaintiff may not evict defendant for material noncompliance (i.e. good cause) unless he has adversely affected the other tenants or the apartment complex.\nDefendant\u2019s interpretation of material noncompliance as requiring \u201cgood cause,\u201d fails to consider the express language in the lease agreement setting forth the specific violations for which ejection may be sought. Plaintiff, under paragraph 23 of the lease agreement, elected to terminate defendant\u2019s tenancy for \u201cmaterial noncompliance\u201d which is specifically defined in the lease to include \u201cserious or repeated damage to the unit or common areas; [or] creation of physical hazards.\u201d (Emphasis added.) The lease does not require, in addition to \u201cmaterial noncompliance,\u201d proof of \u201cother good cause\u201d to support termination. The trial court found and we agree that plaintiff sustained its burden in proving \u201cmaterial noncompliance\u201d as that term is defined in the lease.\nThe evidence presented is sufficient to support a finding that the failure to maintain electricity is characterized by the lease itself as a \u201cSubstantial Violation.\u201d Furthermore, defendant had \u201ccreated a physical hazard\u201d and therefore materially breached the lease by allowing the electricity in her apartment to be cut off during periods of freezing temperatures. Such conditions could cause adverse effects such as unsanitary conditions, frozen pipes, risk of fire, and uninsurability. The fact that there was no actual physical damage to the premises is immaterial. See Maxton Housing Authority v. McLean, 70 N.C. App. 550, 320 S.E.2d 322 (1984), rev\u2019d on other grounds, 313 N.C. 277, 328 S.E.2d 290 (1985). This portion of the lease was designed to preserve the safety of the dwelling unit and fellow tenants by permitting termination where a tenant is in material breach of the lease agreement. Therefore, allowing termination of electrical services creates a physical hazard sufficient to constitute \u201cmaterial noncompliance\u201d under this lease.\nThe cases relied on by defendant requiring a separate showing of \u201cgood cause\u201d for termination are inapposite. One Fourth Circuit case merely held that a landlord could not terminate a federally subsidized housing lease at the end of a successive term without good cause. In other words, there must a reason for termination of the tenancy besides the expiration of the lease term in the case of federally subsidized housing. See Swann v. Gastonia Housing Authority, 675 F.2d 1342 (1982). Another case which required a showing of \u201cgood cause\u201d for termination was strictly limited to tenants living in public housing as opposed to private tenancies. Goler Metropolitan Apartments v. Williams, 43 N.C. App. 648, 260 S.E.2d 146 (1979). None of these cases added a \u201cgood cause\u201d requirement to termination for a tenant\u2019s material noncompliance with the lease.\nHaving found defendant to have materially breached the lease agreement, the question becomes whether plaintiff waived its right to terminate the lease. Defendant asserts that plaintiff\u2019s Notice to Quit and Vacate gave defendant the opportunity to cure the breach by providing proof that electrical service was restored within ten days. Defendant argues that in giving an alternative to forfeiture, plaintiff waived its right to forfeiture when defendant met the condition of the notice because the notice constituted an election to continue the lease in effect if certain conditions were met.\nThe evidence does not support defendant\u2019s contention. The Notice to Quit and Vacate, by its express terms, did not provide defendant with an opportunity to cure. The notice merely afforded the tenant the opportunity to discuss the termination with the manager within ten days. Furthermore, the notice specifically stated, without qualification, that the tenant must quit and vacate by the date contained therein.\nDefendant next argues that plaintiff is estopped from terminating the lease because plaintiff had twice before allowed defendant to remain on the leased premises after she restored her power. Plaintiff\u2019s prior actions, defendant contends, constituted an implied promise not to strictly enforce the part of the lease requiring maintenance of electrical services. This \u201cimplied waiver\u201d lulled defendant into thinking that failure to maintain electrical services would not be grounds for eviction if she could cure within ten days.\nAgain, we find this argument to be without merit. In order to prove waiver by estoppel, defendant must show that there was an express or implied promise on the part of the plaintiff to waive its right to terminate the lease and that defendant detrimentally relied upon such promise. The essential elements of waiver are the \u201cexistence at the time of the alleged waiver of a right, advantage or benefit, the knowledge, actual or constructive, of the existence thereof, and an intention to relinquish such right, advantage or benefit.\u201d J. W. Cross Industries v. Warner Hardware Co., 94 N.C. App. 184, 379 S.E.2d 649 (1989). (Emphasis added.) The question of whether the plaintiff intended to excuse a lease violation must be inferred from the facts and circumstances. Id. On the evidence in this case, it would be absurd to conclude that plaintiff impliedly waived its right to terminate by allowing defendant to cure on past occasions. There was no course of conduct between the parties that would have lulled the defendant into believing future lease violations of this nature would be tolerated. There was no evidence presented from which it could be inferred that plaintiff intended to excuse defendant\u2019s failure to maintain electricity. Furthermore, evidence of plaintiff\u2019s conduct does not raise the inference that plaintiff did not intend to declare the lease forfeited if defendant materially breached the lease. In short, there was no evidence that plaintiff intended to relinquish its rights under the lease. In addition, the HUD-approved lease agreement between the parties clearly states:\n28. NON-WAIVER: Failure of the Landlord to insist upon the strict performance of the terms, covenants, agreements and conditions herein contained, or any of them, shall not constitute or be construed as a waiver or relinquishment of the Landlord\u2019s rights thereinafter to enforce any such terms, covenants, agreements, or conditions, but the same shall continue in full force and effect.\nThis section precludes an automatic waiver where the landlord has acquiesced to certain past conduct in violation of the lease agreement. The fact that plaintiff allowed defendant to cure her breach on two prior occasions would not indicate the relinquishment of its right to terminate for all future violations. If that were the case, a landlord could never give a tenant a second chance after an initial breach without risk that the landlord and fellow tenants would be condemned to suffer a series of infinite breaches of their safety and security.\nSince defendant was in material noncompliance with the lease agreement and plaintiff had not waived its right to terminate, we find the trial court\u2019s awarding possession of the leased premises to the plaintiff to be correct.\nNo error.\nJudges ORR and GREENE concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Law Offices of Mark C. Kirby, by Mark C. Kirby and Howard S. Kohn, for plaintiff-appellee.", "North State Legal Services, by Candace Carraway and Carlene McNulty, for defendant-appellant." ], "corrections": "", "head_matter": "LONG DRIVE APARTMENTS, Plaintiff/Appellee v. TESSIE PARKER, Defendant/Appellant\nNo. 9120DC898\n(Filed 20 October 1992)\n1. Landlord and Tenant \u00a7 13.1 (NCI3d)\u2014 federally subsidized private housing \u2014material noncompliance under lease \u2014 termination of electrical services\nThe trial court did not err in a summary ejectment action by concluding that plaintiff was entitled to possession of the premises due to material noncompliance with the lease where the lease stipulated that defendant would provide electrical services to the apartment and the evidence at trial showed that defendant\u2019s electricity was terminated three times for nonpayment of amounts due. Although defendant contended that the lease violations do not rise to the level of \u201cmaterial noncompliance\u201d so as to warrant ejectment, that interpretation fails to consider the express language of the lease agreement setting forth specific violations for which ejection may be sought. The evidence was sufficient to support a finding that defendant\u2019s failure to maintain electricity was characterized by the lease as a \u201cSubstantial Violation,\u2019\u2019.and, furthermore, defendant had \u201ccreated a physical hazard\u201d and therefore materially breached the lease by allowing the electricity in her apartment to be cut off during periods of freezing temperatures.\nAm Jur 2d, Landlord and Tenant \u00a7\u00a7 175, 1039.\n2. Landlord and Tenant \u00a7 13.1 (NCI3d)\u2014 lease \u2014material breach-waiver of right to terminate\nPlaintiff did not waive its right to terminate a lease through certain provisions in the Notice to Quit and Vacate where the Notice did not, as defendant contended, provide defendant an opportunity to cure the breach, but merely afforded the tenant an opportunity to discuss the termination with the manager within ten days and specifically stated without qualification that the tenant must quit and vacate by the specified date. Plaintiff was not estopped from terminating the lease because it had twice before allowed defendant to remain on the premises after the breach was cured because there was no evidence that plaintiff intended to relinquish its rights under the lease. Additionally, the HUD-approved lease precludes automatic waiver where the landlord has acquiesced to certain past conduct in violation of the lease agreement.\nAm Jur 2d, Landlord and Tenant \u00a7\u00a7 175, 1039.\nAPPEAL by defendant from judgment entered 21 May 1991 in Richmond County District Court by Judge Kenneth W. Honeycutt. Heard in the Court of Appeals 22 September 1992.\nPlaintiff Long Drive Apartments instituted this summary ejectment action against defendant Tessie Parker. Plaintiff operates a private housing complex which receives monthly subsidies from the United States Department of Housing and Urban Development (HUD) on behalf of low income tenants pursuant to Section 8 of the United States Housing Act of 1987. The defendant qualifies for and receives a rent subsidy from HUD and therefore does not pay any rent to plaintiff. For the same reason, defendant also receives a utility check from plaintiff which is required to be paid to Carolina Power & Light (CP&L), the utility services provider for the leased premises.\nDefendant and her family moved into Long Drive Apartments in March of 1989. Plaintiff and defendant entered into a written lease agreement which stipulated, in pertinent part, that defendant agree to maintain electrical services to the leased premises. The lease agreement also provided that failure to maintain electricity would constitute a \u201cSubstantial Violation\u201d of the lease agreement.\nThe evidence at trial tends to establish that on three separate occasions, defendant\u2019s electricity was terminated by reason of nonpayment of amounts due to the utility, CP&L. Defendant also endorsed and cashed the utility checks she received from plaintiff rather than sending them directly to CP&L. After electrical services were terminated for the third time, plaintiff notified defendant that her failure to maintain electricity was a substantial violation of the lease agreement and delivered two Notices to Quit and Vacate, demanding surrender of the leased premises by 18 February 1991.\nPlaintiff then brought a summary ejectment action against defendant in small claims court. The magistrate awarded plaintiff possession of the leased premises. Defendant appealed the magistrate\u2019s decision to the district court. The court conducted a trial de novo and granted plaintiff an order of ejectment. Defendant appeals.\nLaw Offices of Mark C. Kirby, by Mark C. Kirby and Howard S. Kohn, for plaintiff-appellee.\nNorth State Legal Services, by Candace Carraway and Carlene McNulty, for defendant-appellant." }, "file_name": "0724-01", "first_page_order": 752, "last_page_order": 758 }