EULINE B. HOWARD, Individually and as Executrix, Appellant, v. C. A. EDGREN et al., Respondents.
No. 36577
Department One. Supreme Court of Washington.
September 5, 1963.
385 P. (2d) 41
PER CURIAM. This opinion but states the obvious. Persons who take possession of real property (the property in question happened to be a store building) without the consent of the owner are to be deеmed tenants by sufferance, and will be required to pay reasonable rent for the actual time they occupy the premises.
A mortgagor does not lose his right to the possession of mortgaged real property by failing to make payments on the mortgage, or by moving out of the community; Norlin v. Montgomery (1961), 59 Wn. (2d) 268, 367 P. (2d) 621. The right to possession is not lost by abandonment. Northern Pac. R. Co. v. Tacoma Junk Co. (1926), 138 Wash. 1, 5, 244 Pac. 117, 119; Cameron v. Bustard (1922), 119 Wash. 266, 205 Pac. 385.
Nor does the mortgagee have any right to possession of mortgaged real property without a “foreclosure and sale according to law.”
The defendants in this case, a mortgagee and his contract purchasers (contract price $2,500), admittedly took possession of the mortgaged property without the consent of the absentee owner; and the contract purchasers, at the time this action was commenced, had conducted their business therein (Sprague Implement Company) for 19 months.
The plaintiff, the owner of the property, was entitled under the statute (
“The argument made by respondents throughout the trial was that the owners had lost nothing because thеy did not intend to rent the land out anyway. If this subject were open to be debated upon, it could be pointed out that if only nominal damages are awarded, the appropriators of the use of land could gain a virtually expense free use of prоperty for profitable purposes on the single condition that the owner did not presently intend to lease the land or to use it himself. However, the Civil Code in section 3334 has fixed the measure of damages, and has made no exception in cases wherе the plaintiff did not intend to use the land or to rent it out so that the court can do no other than apply that measure, namely, the ‘value of the use.’ That the owners did not intend to make any use of the land themselves does not deprive them of their propеr award. (United States v. Bernard, 202 F. 728 [121 C.C.A. 190]; Whitwham v. Westminster Brymbo Coal & Coke Co. (1896), 2 Ch. 538; Bourdieu v. Seaboard Oil Corp., 48 Cal. App. 2d 429, 438 [119 P. 2d 973].)”
There was evidence that after the contract purchasers went into possession of the property in November, 1959, they expended about $5,000 in repairs and improvements; and it is conceded that this added to the rental value of the property. It is argued that liability for rent is fixed by the reasonable rent at the beginning of the tenancy.
Nor do we see any equitable basis for disregarding the increased rental valuation attributable to the improvements. It is apparent, from the language of the purchase contract,3 that the contract purchasers were fully cognizant of the status of the title, and there can be no pretense that they were ignorant of the fact that the mortgagee, from whom they were purchasing, did not have title or the right of possession. The repairs and improvements were incidental to their оwn use and enjoyment of the property and, obviously, were made in the expectancy that they would eventually become owners of the property. If for reasons of their own the mortgagee and his contract purchasers do not want to takе the necessary steps to acquire a right of possession to the property by foreclosure and sale, they are going to have to pay the fair market value for the use and occupancy to the owner during the time they are tenants of that owner. As we pointed out in Norlin v. Montgomery, supra, equitable principles cannot be asserted to establish equitable relief in derogation of statutory mandates.
The judgment for nominal damages in the sum of $19 appealed from is reversed and the cause is remanded to the triаl court for a determination of the rent due the plaintiff consistent with the applicable statute and the views expressed herein.
FINLEY, J. (concurring in the result) - I agree with the per curiam opinion that a technical legal wrong was done to the owner-mortgagor when, without her consent, the
I cannot agree with the per curiam that the owner-mortgagor is entitled to a windfall in terms of the improvements valued, according to the record, at approximately $5,000;
Taking the thesis that
In the instant case, as mentioned above, the record shows thаt the over-all value of the improvements was approximately $5,000. An important step in determining the “reasonable rent” would be a determination as to whether all or only part of the improvements were of long term value and of benefit to the building and its owner, or simply of special or unique value to the tenant in occupancy for his specific purposes. The record shows that two of the improvements involved the roof and the floor of the building at costs, respectively, of somewhere around $1,200 and $2,500. These improvements, generally, would be of long term value in relation to the building and its ownership. For example, a three-ply tar paper and hot tar roof is regarded generally in the trade as a 5-year roof, and should be depreciated or amortized accordingly. Using the figure of $4,000 as the cost of the improvements of long term value, and amortizing the amount over a period of 10 years, would indicate a possible reduction in rent of $400 a year, or $33.33 per month.
I think the case should be remanded to the trial court for a determination, first, as to the rental value of the building with the improvements as of the time these were made, and second, that a reasonable and equitable adjustment in this amount should be made, based upon a reasonable depreciation or amortization of the improvements of long term value. The tenants by sufferance — respondents in this case — would be obligated to pay such an adjusted “reasonable rent” on a monthly basis, covering the period of their occupanсy of the premises.
On the basis indicated hereinbefore, I concur in the per curiam opinion that the judgment be reversed, and the case remanded to the trial court for further proceedings.