Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-271

                                          MAY TERM, 2012

 Martin Webster                                        }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Steve Anderson                                        }    DOCKET NO. 501-9-10 Wmcv

                                                            Trial Judge: John P. Wesley

                          In the above-entitled cause, the Clerk will enter:

        Tenant appeals the superior court’s June 28, 2011 decision rejecting his counterclaims in
this eviction action. We affirm.

        In 2007, tenant began renting an apartment in a house owned by landlord. There was no
written lease, but rent was set at $850 per month to be paid at the beginning of each month, and
tenant was required to pay landlord $1700 at the commencement of the tenancy. Sometime in
March 2010, tenant informed landlord that he intended to vacate the apartment by the end of the
following month because he was looking for a job outside of the area. Tenant asked if landlord
would allow him to pay rent in bi-weekly installments and apply the last month’s rent he had
given landlord at the beginning of the tenancy. Landlord agreed to do so, but stated to tenant that
the extra money provided at the beginning of the tenancy was in fact a security deposit.
Apparently, the parties disagreed on this point. Tenant remained in the apartment beyond the
end of April. He continued to make bi-weekly payments without replenishing what landlord
believed to be his security deposit.

        On July 29, 2010, landlord delivered a letter to tenant stating that, effective September 1
of that year, the rent would increase from $850 to $950 and tenant would be required to
reestablish a security deposit and pay the entire rent on the first of each month. Landlord also
stated that, because of the dispute over the security deposit, he would require the execution of a
written lease as of October 1, 2010. On August 25, 2010, landlord asked tenant whether he
planned to respond to the letter. Tenant replied by informing landlord that he had consulted an
attorney and that the apartment required $10,000-$15,000 in unattended repair work. Concerned
that tenant was making false accusations as to the condition of the apartment in response to
legitimate issues raised in his July 29 letter, landlord consulted an attorney for advice on
terminating the tenancy.

        On September 1, 2010, tenant sent landlord a letter stating, among other things, that he
intended to pay his rent bi-weekly in escrow to be held by his attorney “until the issues I have
identified can be addressed.” Tenant was apparently referring to a later paragraph in the letter
entitled “Code Questions,” wherein he states: “Over the past 30 days—as the result of your
letter—I have done some research and have found reasons to question whether [your previous
assurances that the apartment complied with code requirements] is fully accurate.” Tenant stated
that he wanted landlord to confirm in a written letter to tenant’s attorney landlord’s previous
assurances as to the apartment meeting code requirements. Tenant stated that when that was
done—in particular with respect to the front and back stairways—he would then consult his
attorney about releasing the rent payments from escrow.

        The following day, September 2, 2010, landlord delivered to tenant a notice of
termination of tenancy. The letter stated that the tenancy would be terminated as of September
18, 2010 if tenant did not pay landlord the overdue rent by that date and that, in any case, the oral
month-to-month lease would be terminated in sixty days as of November 4, 2010. On the same
day, landlord sent tenant another letter stating that he wanted to arrange a time to inspect the
apartment due to tenant’s claims of needed repairs and code violations. Landlord proposed
inspecting the apartment on September 7, but tenant sought a delay so that he could consult with
his attorney. After agreeing to tenant’s request for a delay, landlord sent tenant another letter
stating his intent to inspect the apartment on September 11, 2010 at 11:00 in the morning.
Tenant sought a further delay, but landlord refused and arrived with a third party at the appointed
time. Tenant was at the apartment but refused to consent to landlord’s entry. Landlord
nonetheless entered the apartment with his key and inspected the property.

        In late September, landlord filed an eviction action against tenant. In response, tenant
raised several affirmative defenses and counterclaims sounding in retaliatory eviction, unlawful
trespass, and invasion of privacy. At a rent escrow hearing, tenant stipulated to relinquishing
possession of the apartment by November 30, 2010. By the time the trial court rendered its
decision on tenant’s counterclaims, landlord had acknowledged that no rent was due, which was
his only claim for damages.

         In its June 28, 2011 decision, the court rejected tenant’s counterclaims, ruling that none
of them were supported by the evidence or the law. Regarding the claim of retaliatory eviction,
the court ruled that tenant had failed to meet his burden of proving that landlord’s decision to
terminate his tenancy was in retaliation for tenant having raised concerns over code violations.
See Houle v. Quenneville, 173 Vt. 80, 93 (2001) (holding that tenants have burden of proving
affirmative defense of retaliatory eviction). Tenant contends that the court erred by relying on
landlord’s proffered subjective reasons for his actions rather than the objective fact that he sent
tenant a termination notice one day after tenant had sent him a letter mentioning possible code
violations. We find no error. To be sure, “we held [in Gokey v. Bessette, 154 Vt. 560 (1990)]
that the retaliatory eviction statute, 9 V.S.A. § 4465(a)(2), did not contemplate use of a
subjective test for evaluating what is retaliatory conduct.” Id. at 90. But “Gokey did not relieve
tenants of their burden to prove a retaliatory eviction.” Id. Rather, Gokey imposed an “objective
test” relying upon “surrounding facts and circumstances.” Id. at 91.

         That is precisely what the trial court relied upon in this instance before concluding that
tenant had failed to prove his retaliatory eviction claim. In isolation, the principal fact that tenant
relies upon—the fact that landlord sent him an eviction letter one day after he had sent landlord a
letter suggesting potential code violations—appears to support his retaliatory eviction claim. But
when all of the objective facts and circumstances are considered, the claim does not hold up. As
the trial court pointed out, landlord’s July 29 letter expressed a need to clarify the terms of the
tenancy in light of the disagreement over whether the extra money tenant supplied upon
commencing the tenancy was a security deposit and whether tenant needed to replenish that
deposit and resume full monthly payments at the beginning of each month. The changes
demanded by landlord in the July 29 letter were to commence with tenant’s September 1
monthly payment. Thus, the timing of landlord’s September 2 notice-of-termination letter made
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perfect sense absent any retaliatory motive, given tenant’s failure on September 1 to abide by the
terms set forth by landlord in the July 29 letter. This is particularly true in light of the August 25
confrontation in which tenant informed landlord—falsely as the trial court found—that the
apartment required thousands of dollars in repairs. Although tenant interposed his September 1
letter vaguely suggesting possible code violations the day before he received landlord’s notice-
of-termination letter, the objective facts and circumstances, as found by the court, strongly
undercut tenant’s claim of retaliation. See id. at 93 (stating that trial court’s findings of fact will
be upheld unless they are clearly erroneous after viewing evidence in light most favorable to
prevailing party and excluding effect of modifying evidence).

        Tenant also argues that the trial court erred by rejecting his claims of trespass and
invasion of privacy, focusing primarily on his contention that there was no emergency or exigent
circumstances justifying the unwanted inspection of the apartment. We find no merit to this
argument. No emergency was required for entry because of the notice of inspection provided by
landlord. See 9 V.S.A. § 4460(c) (providing that landlord may enter dwelling unit “without
consent or notice” only when landlord has reasonable belief of imminent danger to person or
property). The record amply supports the trial court’s conclusions that landlord fulfilled the
statutory requirements for access to the apartment he owns and that landlord was legally entitled
to peacefully effectuate that access when tenant unreasonably withheld his consent for entry in
violation of his statutory duty. See 9 V.S.A. § 4460(a)-(b) (providing that landlord may enter
dwelling unit “with the tenant’s consent, which shall not be unreasonably withheld,” and that
landlord may enter dwelling unit between nine in the morning and nine at night on no less than
48 hour’s notice, in relevant part, “when necessary to inspect the premises”). The record further
supports the trial court’s conclusion that landlord’s videotaped inspection was reasonable and
necessary in light of tenant’s contentions regarding code violations and the need for repairs.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Marilyn S. Skoglund, Associate Justice




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