tolstoi v. worth

VERMONT SUPERIOR COURT                                                         CIVIL DIVISION
Rutland Unit                                                                Case No. 23-CV-01292
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

                                     Hilarie Tolstoi v. April Worth


                                ENTRY REGARDING MOTION
Title:           Motion to Dismiss (Motion: 3)
Filer:           Eric J Fanning, Esq.
Filed Date:      May 12, 2023


        This is an eviction action filed pursuant to 12 V.S.A. § 4761. Plaintiff Landlord Hilarie
Tolstoi seeks to evict Defendant Tenant April Worth from her rental property in Rutland,
Vermont, which is a federally subsidized, “Section 8” apartment. Ms. Tolstoi represents herself
and Ms. Worth is represented by Eric Fanning, Esq. Tenant moves to dismiss the action, arguing
that the termination notice was legally deficient because it failed to provide notice under the
Violence against Women Act (“VAWA”), which is required under federal law for subsidized
housing. Landlord argues such notice was not required because she was unaware Tenant is a
victim of domestic violence and Tenant is not being evicted due to acts or threats of violence
against her. For the reasons discussed below, Tenant’s motion to dismiss is GRANTED.

         Federal regulations provide that a “covered housing provider,” such as a landlord for a
Section 8 tenant, must provide a “Notice of Occupancy Rights under the Violence Against
Women Act” to the tenant “[w]ith any notification of eviction or notification of termination of
assistance.” 

(a)(2)(iii) (emphasis added). Thus, the VAWA notice is required
regardless of the grounds for the eviction. Other courts have dismissed cases where the required
notice is not provided, holding that termination notices sent without the VAWA notice are
insufficient and legally inadequate to properly terminate the tenancy. See, e.g., DHI Cherry Glen
Assocs., L.P. v. Gutierrez, 

, 10, (Cal. App. Dep’t Super. Ct. 2019)
(holding that notice served on tenant that “did not include the VAWA notices as required by law
. . . cannot support an action for unlawful detainer”); Hous. Auth. of City of Hartford v. Shahine,
No. HFH-CV21-6017325S, 

, at *2 (Conn. Super. Ct. 2022) (noting that
“federally subsidized landlords are obligated to comply with the requirements of state and
federal law in terminating a lease,” and “24 C.F.R. § 5.2005(a)(2)(iii) clearly provides that at the
time of any eviction notice, regardless of the basis for the termination of tenancy,” the [VAWA
notice] forms are required”). Likewise, Vermont trial courts have dismissed eviction actions
where Section 8 landlords fail to provide contemporaneous notice of the termination of the lease
to the housing authority, as required by 

. See, e.g., Franklin South LLC v.
Charbonneau, No. 22-CV-03982, at 3-4 (Mar. 2, 2023) (Toor, J.) (dismissing case where HUD
was not given a copy of the termination notice, observing that a “valid notice of termination is a
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23-CV-01292 Hilarie Tolstoi v. April Worth
condition precedent to the commencement of a Section 8 eviction proceeding” (quotation
omitted)); Bourne v. Baker, No. 22-CV-00163 (Mar. 30, 2022) (Gerety, J.) (stating an “action for
eviction can be commenced only after lawful termination of the rental agreement,” which did not
occur where plaintiff failed to deliver a copy of the written notice of termination to VSHA”).

        The Court is persuaded by these cases and concludes that Landlord’s failure to provide
the required VAWA notice to Tenant with the Notice of Termination here means that the tenancy
was not properly terminated. Further, this is a jurisdictional defect that requires dismissal of the
action. As the Vermont Supreme Court has made clear, “[w]ith respect to the termination of
residential leases, we have followed the trend in other jurisdictions to require punctilious
compliance with all statutory eviction procedures, including notice provisions.” Vt. Small Bus.
Dev. Corp. v. Fifth Son Corp., 

 (quotation omitted).

        For the foregoing reasons, the Motion to Dismiss is GRANTED. This matter is hereby
DISMISSED without prejudice. Landlord may refile the eviction action within 90 days of the
date of this Entry without filing an additional filing fee.

Electronically signed on June 8, 2023 at 6:10 PM pursuant to V.R.E.F. 9(d).


________________________________
Megan J. Shafritz
Superior Court Judge




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23-CV-01292 Hilarie Tolstoi v. April Worth