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Holl v. Ballard, No. 260-6-03 Wrcv (Teachout, J., N ov. 10, 2003)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompan ying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT WINDSOR COUNTY, SS.

GERTRUD HOLL, Plaintiff/Appellant ) ) Windsor Superior Court v. ) Docket No. 260-6-03 Wrcv

) SUSAN BALLARD, Defendant/Appellee )

Decision on Appeal from Small Claims Court

This is an appeal from a dismissal of the case by the Small Claims Court dated May 12, 2003, following an evidentiary hearing held on Marc h 13, 2003, in Docket #562-11-02 Wrsc. The Court has reviewed the Appellant’s Statement of Legal Question filed June 4, 2003, reviewed the Appellant’s Memorandum of Law filed on July 7, 2003, and listened to the tape of the hearing below. Oral argument was held on Septe mber 5, 2003, at which time Appellant presented oral argument through her attorney, Steph en S. Ankuda, Esq. Appellee Susan Ballard did not attend the oral argument.

It is not the function of the Superior Court judge to substitute her own judgment for that of the Small Claims Court trial judge on factual is sues. Rather, the role of the Superior Court judge on appeal is to determine whether the finding s on factual matters are supported by the evidence at the hearing, and whether or not the tri al judge correctly applied the law.

In this case the trial judge made written Findings of Fact, and the record shows that the evidence presented at the hearing, which was undisp uted, supports the court’s Findings of Fact. There is one additional fact that is implicit in th e court’s findings, although it may be helpful to state it explicitly. It is undisputed that when Su san Ballard moved out of the apartment, she gave her key to Joanne Greene, based on Joanne Greene’s statement that she (Greene) had arranged with the landlord to rent the apartment. Susan Bal lard did not speak to Gertrud Holl directly to tell her herself that she (Ballard) had left the ap artment, or that she had turned the key over to

Joanne Greene.2

The basis of the court’s decision on the law was t hat Ballard had acted in good faith. Appellant argues that good faith, while present, is not the appropriate factor upon which the decision should be based. Appellant correctly argu es that a tenant who wishes to end a landlordtenant relationship must terminate the tenancy and surrender possession to the landlord according to the requirements of law. Generally this process requires advance notice to the landlord or a mutual agreement. Under the Residential Rental Agr eements Act, a tenant may terminate a tenancy by actual notice given to the landlord at l east one rental payment period prior to the termination date specified in the notice. 9 V.S.A. § 4456(d). “Actual notice” means written notice under 9 V.S.A. § 4451(1). The landlord-tena nt relationship may also be terminated at any time by the tenant’s surrender of possession, coupl ed with the landlord’s acceptance. Abbadessa v. Tegu , 120 Vt. 352 (1958). The landlord’s assent may be either express or implied, but it must be clearly inferable from the actions of the partie s.

In this case, there are no findings that Ballard g ave Holl advance notice of a specific termination date, or that Holl agreed to an early s urrender of the premises. Instead, Ballard gave her key to Greene, based on her understanding from Greene that she (Greene) had arranged to rent the apartment from Holl. (Finding 11). The r ecord does not show that Ballard delivered her keys to Holl or otherwise notified Holl that she (B allard) intended to surrender possession.

While Ballard gave Holl a general advance notice t hat she planned to move out in the month of August, she never specified the date on wh ich she was returning possession to Holl or transferring it to Greene, either before or after s he left. Without such notice, Holl had no knowledge that Ballard had given up possession, or that Ballard had attempted to transfer possession to Greene. If possession was never retu rned to the landlord by any means, or transferred to a third party with the assent of the landlord, the tenant retained responsibility for the condition of the premises.

The tenant’s responsibility is set forth in the Re sidential Rental Agreements Act, 9 V.S.A. § 4456(c), which states:

The tenant shall not deliberately or negligently d estroy, deface, damage or remove any part of the premises or its fixtures, me chanical systems or furnishings or deliberately or negligently permit any person to do so.

Even though Ballard acted in good faith, her good f aith is not sufficient to eliminate her continuing legal obligation for the condition of th e premises until such time as she either surrendered possession of the apartment to the land lord through return of the key or gave sufficient notice of a specific date for the return of possession. Either of those acts could have terminated her responsibility for the condition of the premises under the circumstances, but neither was accomplished. Therefore, Ballard had continuing responsibility for the condition of the apartment during the period Greene damaged it, and Plaintiff has a valid claim for recovery of damages against Ballard.

While the judge correctly noted that Plaintiff pro bably had a basis for a claim against3

Joanne Greene, it is not automatically the case tha t because a claim might be pursued against Greene, none can be pursued against Ballard. The i ssue for the court was whether, based on the facts as determined by the court, there is a legal basis for liability on the part of Susan Ballard.

Because there is such a basis, for the reasons set forth above, the case will be returned to the Small Claims court to determine the amount of the j udgment.

Order

For the foregoing reasons, the decision is reversed and the case is remanded to the Small Claims Court for determination of judgment consiste nt with this opinion. It shall be within the discretion of the judge to determine whether furthe r hearing is necessary.

Date at Woodstock, Vermont this day of November, 2003.

Hon. Mary Miles Teachout Presiding Superior Court Judge