State v. Hemingway, 196 Vt. 441 (2014)

Citation: State v. Hemingway, 196 Vt. 441 (2014)
Parent Document: State v. Hemingway, 196 Vt. 441 (2014)
Jurisdiction: Vermont (state)
Effective Date: 2014-05-09
Original Source: https://www.courtlistener.com/opinion/2673207/state-v-hemingway/ ↗

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¶ 36.        
The majority’s reliance on In re Soon Kwon, 2011 VT 26, 189 Vt.
598, 19 A.3d 139 (mem.), is misplaced.  In that case, this Court
considered a statute directing that a landlord “shall” provide notice of a
security deposit statement to former tenants “ ‘by hand-delivering or
mailing the statement . . . to the last known address of
the tenant.’ ”  Id. ¶ 10 (quoting 9 V.S.A.
§ 4461(d)).  The statute also explained that if a landlord failed to
return the security deposit with a statement within fourteen days, “ ‘the
landlord forfeits the right to withhold any portion of the security deposit.’ ”
 Id. ¶ 17 (quoting 9 V.S.A. § 4461(e)).  This Court held that
the statute created a bright-line rule and that even if a tenant had actual
notice, failure to comply with the notice provision resulted in forfeiture of
the deposit.  In so holding, this Court considered several factors. 
First, the statute had a consumer-protection purpose, and the focus was on
prompt return of a deposit.  Id. ¶¶ 15, 19.  Second, the use
of the word “shall” was mandatory language that obligated compliance by the landlord. 
Id. ¶ 16.  Third, in contrast to this case, the statute contained a
consequence for failure to comply.  Id. ¶ 17.  Finally, also
unlike this situation, the interpretation was consistent with the rest of the
statutory scheme.  Id. ¶ 18.

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