333 Mass. 261 | Mass. | 1955
The plaintiff sues under the housing and rent act of 1947 (U. S. C. [1946 ed.] Sup. V, Title 50, Appendix, § 1895) for alleged overcharges of rent. A demurrer to the declaration for failure to state a cause of action was sustained, and the plaintiff appealed without taking advantage of leave to amend.
The declaration is in two counts, which are substantially identical except that count 1 asks for treble damages. It
Pertinent provisions of the housing and rent act of 1947, as amended, are: Section 204 (b): “. . . no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established . . . .” U. S. C. (1946 ed.) Sup. V, Title 50, Appendix, § 1894 (b). Section 205:
Whether the premises are “controlled housing accommodations” depends not upon the terms of the lease, Popplewell v. Stevenson, 176 Fed. (2d) 362 (C. A. 10), but rather upon the actual use made of them. West v. Conrad, 177 Fed. (2d) 252 (C. A. 9). Young v. Margiotta, 136 Conn. 429, 436. A part of the premises was used for living or dwelling purposes, and that part is subject to the act. Perry v. Wagner, 167 Pa. Super. Ct. 199. But it does not follow that the entire premises are subject thereto. As between the plaintiff and the defendant, as lessee and lessor, where the business and dwelling portions, though rented to a single tenant, are not separable, the premises as an entirety are either subject to control or free from control, depending upon whether the predominant use is for housing accommodations or for business purposes. Greider v. Woods, 177 Fed. (2d) 1016 (C. A. 10). Jacobs v. United States, 199 Fed. (2d) 396 (C. A. 1). United States v. Stull, 200 Fed. (2d) 413 (C. A. 2). Woods v. Whitehouse, 83 Fed. Sup. 268 (D. C. W. D. N. Y.).
On the allegations of the declaration, the plaintiff sublet to Cooper in violation of his covenant in the lease. The allegation that the plaintiff leased from the defendant “with the right to sublet as housing accommodations a part of said apartment” is not borne out by the lease which gives “the right to sublet a portion of the rear of the leased premises to Sholom Bloom or any other tenant reasonably satisfactory to the lessor” for purposes not disclosed. We do not, however, rely upon this fact except in so far as it tends to show that the business and dwelling portions are separable. We think that the allegations of the declaration make the dental office which was consciously rented by the defendant to the plaintiff separate and distinct from the dwelling accommodations rented by the plaintiff to Cooper, apparently without the defendant’s knowledge or consent.
The question remains whether the allegations of the declaration show an overcharge for the separable portion of the premises used by Cooper. There has been no apportionment. The Federal act does not seek to control rents of business premises. West v. Conrad, 177 Fed. (2d) 252 (C. A. 9). So far as that statute is concerned, the defendant could have charged any rent for the dental office. It cannot be presumed that, whatever the amount Cooper paid the plaintiff, the defendant, even if it knew of the sublease, intended to receive from the plaintiff an unlawful amount as rent of the rooms Cooper used.
It may be pointed out that if the plaintiff has exacted an excessive rental from Cooper, the latter has his remedy. De Antueno v. Agostini, 94 Fed. Sup. 957 (D. C. S. D. N. Y.). 14 Fed. Reg. 5711, § 825.1.
Order sustaining demurrer affirmed.
Judgment for the defendant.