VermontSuperiorCourtFiled02/0224Caledonianit

## VERMONTSUPERIOR

## COURTCaledonia

### Unit1126

### MainStreetSuiteSt.

### JohnsburyVT05819

### 802-748-6600

### wwwvermontjudiciaryorg

## CIVILDIVISIONCase

### N0.23-CV-04828

# ENTRYREGARDINGMOTIONTitle:Motionto

### Dismiss(Motion:1)

### Filer:

### EverettM.Secor

### FiledDate:

### December20,2023

### Themotionis

## GRANTED.Defendant

### Whitcombhasfiled

### motiontodismissthecurrentejectment

### complaintbasedonseveralallegeddefects

### in

### PlaintiffBogie’scomplaintand

### efforttoterminate

### Defendant’stenancy.

### Thisisanejectmentcase.

### Thelegal

### right

### ofejectment,thatis

### tolegallyand

### forciblyremovean

### individualor

### individuals

### from

### dwellingunitwherethey

### previouslyhad

### rightto

### occupancyandpossession,tenancy,is

### whatispresentlybeforethe

### Court.12

### V.S.A.§§4761,etsec.

### Butthe

### righttoseektheremedy

### ofejectmentrequires

### landlordtofirstterminatethetenancy.

### V.S.A.4468.

### Forresidentialrentalrelationshipsthatmeans

### terminatingtheagreement

### withpropernoticeasoutlinedunder

### V.S.A.4467.

### Inthepresentcase,

### Defendant

### Whitcombhasraised

### fourobjectionstothepresent

### objectionmatter,three

### ofwhichfallundertheclaimsthatthe

### notice

### ofterminationwas

### notproperlydraftedordelivered,therebyrenderingthe

### underlyingtermination

### invalid.

### TheCourt

### willaddresseach

### oftheseclaimsone

### byone.

### Defendantseeksdismissalunderthe

### theorythat

### Plaintiffincorrectlyfilled

### outandfiledhis

## CARESActcertification.

### TheCourthas

### consistentlynotedthatissues

### withthe

## CARESActcertificationconstitute

### voidableissueratherthan

### voidab

### initioissue.Howev.

### Libra”Saw.Ban/é

### TrmtC0.,111

### Vt.201,208—13(1940)

### (discussing

### voidabledefectsthat

### givethe

### Courtdiscretionto

### allowamendmenttocureanalleged

### defectwherenoharmorprejudiceattaches).

### Inthiscase,the

## CARESActissuedoes

### notappeartoberelevantto

### Plaintistabilitytoterminateorto

### affecttheEntryRegardingMotionPageof23—CV—04828RobertBogiev.KerriWhitcombetal

### Robert

## Bogiev.

## KerriWhitcombeta1Entry Regarding Motion Page 2 of 3

23-CV-04828 Robert Bogie v. Kerri Whitcomb et al 

### timeframes for such notice. Plaintiff represents that he owns the property outright, and the CARES

Act does not apply. Thus, any misstatement or misrepresentation appears to have arisen from

confusion with the form and process and not an intent to avoid an obligation or mandatory

timeframe. Dismissal based on this technical defect would be an overly rigorous application of a

procedural rule that is inconsistent with the Court’s obligation to give self-represented parties some

limited leeway in application of procedural rules. Zorn v. Smith , 2011 VT 10, ¶ 22 (noting that “pro

se litigants receive some leeway from the courts, [but] they are still bound by the ordinary rules of

civil procedure”)( (internal citations omitted).

Defendant’s next three contentions concern the adequacy and method of delivering the

notice of termination. Defendant asserts that the notice in this case was defective because it was not

received by Defendant through actual notice, that the 14-day notice period was effectively a

“floating” termination date, which is indefinite and confusing, and that Plaintiff’s demands for

payment were improper as they contained late fees.

A notice to terminate a tenancy under 9 V.S.A. § 4467 does not have formal requirements or

require technical accuracy, but it must be written in a clear and straightforward manner so that the

tenant can understand what the letter is convening. Andrus v. Dunbar , 2011 VT 48, ¶ 13 (,mem.).

This includes, but is not necessarily limited to (1) language that conveys the purpose of the notice

(the termination of the tenancy); (2) the grounds on which the termination is based (for nonpayment of rent, for cause, or for no cause, etc.); (3) the specific date and time that the tenancy ends

and that they must vacate the premises. 1 

### This notice must be provided by “actual notice,” which is

defined in 9 V.S.A. § 4451(1) to mean “receipt of written notice hand-delivered or mailed to the last

known address.” Id. The statute further notes that a “rebuttable presumption” exists where

landlord can show that a notice of termination was sent first class or certified mail that the tenant

receive the mailing three days later. This presumption can be rebutted by proof that the notice was

not received or was returned.

1 Under 9 V.S.A. § 4467(a), the landlord is not required to provide the tenant with a repayment amount in the

notice of termination, but the landlord cannot maintain an action for termination or ejectment if the tenant pays

or tenders rent due through the end of the rental period in which payment is made or tendered.” See also 12

V.S.A. § 4773 (allowing a tenant to stop an ejectment by paying all rent, interests, and costs of the suit into the

court any time prior to the execution of the writ of possession).Entry Regarding Motion Page 3 of 3

23-CV-04828 Robert Bogie v. Kerri Whitcomb et al 

### In the present case, Defendant’s strongest argument is that she did not receive actual notice.

As noted above, actual notice is, on its surface, intended to be less rigorous than formal service

under V.R.C.P. 4 and through a process server, but it is not without rigor. Actual notice cannot be

e-mailed or texted under 9 V.S.A. § 4451(1). It must be hand delivered, mailed, or otherwise given

to a tenant in a manner that gives the document to the tenant in a clear and unmistakable manner.

As Defendant notes, the notice in this case was sent by certified mail, and it was never received.

Plaintiff has not contended that he sent the letter through other means, including first class mail.

While this lack of actual notice is, alone, sufficient grounds to dismiss the present complaint,

when it is coupled with the other defects in the notice, including a lack of specific date of

termination, 2 

### and the repayment amounts that include late fees, the Court is obligated to conclude

that the defects are substantial and together constitute ample grounds for dismissal.

ORDER

For the reasons reviewed above, the Court finds that Defendant’s tenancy was not properly

terminated, and the present action for ejectment lacks the necessary predicate of termination of

tenancy under 9 V.S.A. § 4468 to maintain the action. Therefore, the Court dismisses the present

action under V.R.C.P. 12(b). This dismissal does not prevent Plaintiff from further actions to

terminate Defendant’s tenancy. Nor does this dismissal relieve either party from their respective

obligations under their lease agreement and the Vermont Residential Rental Act to provide rent for

any months in which Defendant occupies the dwelling unit and for Plaintiff to maintain the

premises.

Electronically signed on 2/1/2024 6:33 PM pursuant to V.R.E.F. 9(d)

__________________________________ Daniel Richardson

Superior Court Judge

2 This is not to say that inserting the phrase “terminating in 14 days” is per se invalid. The Court has seen examples

where a landlord has hand delivered a notice of termination with such a phrase where the phrase could only have

one date since the hand delivery and acknowledgement starts the clock, but if something is being mailed, then

using the phrase 14 days is likely to be ambiguous since it can be difficult to determine the exact day of receipt

unless the mailing is certified.