Shires Housing, Inc.
Carolyn S. Brown and William A. Shepard, II
Appeal from Superior Court, Bennington Unit, Civil Division
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,
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1.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
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
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 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
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. 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
. . . .
(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
(A) of the grounds for an eviction ...