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Commerce Park Village Green, LLC v. Vitone

Superior Court of Rhode Island

September 22, 2016

COMMERCE PARK VILLAGE GREEN, LLC
v.
VITO VITONE, ALIAS

         Kent County Superior Court

          For Plaintiff: Richard G. Riendeau, Esq.

          For Defendant: David P. Destefano, Esq.

          DECISION

          RUBINE, J

         This District Court appeal follows a Judgment in favor of the Plaintiff landlord, Commerce Park Village Green, LLC. The Defendant tenant, Vito Vitone, took an appeal to this Court following entry of Judgment. The matter is therefore before the Court for trial de novo on the trespass and ejectment action. Rather than proceed with a trial de novo in open court, the parties agreed to submit the matter on stipulated facts. The Court adopts the Stipulated Facts as its findings of fact for purposes of trial de novo.

         I

         Facts

         In accordance with a written lease agreement (Lease), Defendant Vito Vitone (Tenant) rented condominium unit number 5 at property owned by the corporate Plaintiff Commerce Park Village Green, LLC (Landlord). The Lease term was for one year commencing July 1, 2010 and ending on June 30, 2011. The Tenant did not vacate the property on June 30, 2011, but remained a holdover tenant through July 31, 2011. The Tenant did not pay the rent or condominium fee for the month of July 2011. The Lease contains a specific provision for holdover, which provides in pertinent part as follows: "[i]f Resident holds over and fails to vacate on or before the required move out date (i.e. the end of the Lease Term or . . . extension period after proper move out or vacate notice has been given, or a different move out date agreed to by the parties in writing), Resident shall be liable to pay double Rent for the holdover period . . ." Lease ¶ 16 (emphasis added).

         The Landlord did not send a notice of noncompliance to the Tenant in accordance with the Lease provisions and G.L. 1956 § 34-18-35. Landlord filed an action for eviction for reasons other than nonpayment of rent. Sec. 34-18-36. On August 10, 2011, Judgment entered for the Landlord for possession and back rent. Tenant took a timely appeal from that Judgment and is entitled to trial de novo. When the case was reached for trial, the parties, in lieu of trial, stipulated to all material facts.

         II

         Issues

         The parties stipulate and agree that the only issue or controversy between the parties is the interpretation of Paragraph 16 of the Lease, specifically the Holdover clause. The Landlord claims that no "move out or vacate" notice to double the rent for the month of July is necessary. The Tenant claims that the Landlord was required to serve the Tenant with a "proper move out or vacate notice" before a complaint for eviction may commence, as well as before the holdover provision of the Lease may be invoked. Defective notice under the statute is jurisdictional, and this Court has no jurisdiction to consider a complaint absent strict compliance with the notice provisions of the statute. See, Hedco Ltd. v. Blanchette, 763 A.2d 639 (R.I. 2000); see also, Abbenante v. Giampietro, 75 R.I. 349, 66 A.2d 501 (1949). The purpose of notice is to advise the tenant of the reason for eviction, and provides an opportunity to cure prior to the commencement of an eviction action. Proper notice also affords the tenant a reasonable opportunity to secure alternative housing before an eviction action is commenced.

         III

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