55 A.2d 513 | D.C. | 1947
This is an appeal from a judgment in favor of a plaintiff who alleged in his complaint that the defendants had maliciously, wrongfully and unlawfully, evicted him from á room rented by him from them.
It was established at the trial that plaintiff had been a roomer in a rooming house operated by defendants; that on February 9, 1946, defendants padlocked the door to plaintiff’s room and refused him access to it, claiming that he was in arrears for two weeks’ rent. Plaintiff claimed he had paid the rent for one of the weeks in dispute and had tendered the rent for the other week and that defendants had refused to accept it. Defendants denied both the payment and tender.
Defendants requested the court to instruct the jury that defendants had the right to lock out plaintiff if he owed rent at the time he was locked out. This instruction was denied, and the court charged the jury that regardless of whether or not plaintiff owed rent he could not be evicted without some prior reasonable notice and the institution of court proceedings, and
Defendants base their appeal on the following contention: “No notice to quit is necessary nor is the institution of court proceedings necessary where there is no existing relationship of landlord and tenant and the roomer is delinquent in the payment of his room rent.” Plaintiff contends that by reason of the District of Columbia Emergency Rent Act
The agreed statement on appeal recites that plaintiff was a roomer in a rooming house operated by defendants, that defendants owned the furniture and furnishings in the room, had access to the room, supplied linens, towels, etc., and rendered daily maid service, and that plaintiff paid a weekly rental of $7.50. The question of whether the occupant of premises has the status of a roomer or a tenant is sometimes a close one.
The Rent Act expressly states that the term “housing accommodations” includes “rooming- or boarding-house accommodations”
Plaintiff argues here that the jury must have concluded that he owed no rent at the time he was locked out because he had previously paid in excess of the rent ceiling a sum far larger than that in dispute. This argument is based on two orders of the Rent Administrator of July 17 and July 24, 1944, establishing daily, weekly and monthly rates for plaintiff’s room. It is not at all clear from the record that plaintiff made overpayments, or, if so, how much. Plaintiff asserts he overpaid $90 in a year’s time, but obviously this figure cannot be accepted since plaintiff occupied the room less than three months under defendants’ operation of the house. Aside from the foregoing, it is plain that the court did not submit to the jury the disputed question of arrearage. The jury were instructed to disregard the issue of whether or not plaintiff owed rent. We must accept the case as one in which the jury could have found plaintiff delinquent in his rent but were foreclosed by the court’s instructions from considering that issue.
As we have seen, plaintiff was a tenant within the meaning of the Rent Act but was subject to being dispossessed if .he failed to pay his rent. Was he entitled to notice to quit? Plaintiff argues that because of the Rent Act he is a tenant and therefore entitled to notice. However, being a tenant for the purpose of the Rent Act does not necessarily mean that one is a tenant for all purposes. The Rent Act makes no provision for any notice to quit.
Although plaintiff contends he was a tenant and entitled to a thirty day notice, it is observed that the trial court did not rule either that plaintiff was a tenant or was entitled to a thirty day notice. The court ruled that plaintiff was entitled to a reasonable notice. Is a roomer entitled to notice before he can be put out for nonpayment of rent? Our attention has been called to no authority for so holding. The few authorities we have found indicate to the contrary.
It is suggested that by analogy, since a tenant is entitled to notice, a roomer is also entitled to some notice. But the notice to the tenant is required by statute, and we have no such statute relating to roomers. Furthermore, the notice to the tenant is required in order to terminate the tenant’s estate. The roomer has no estate to be terminated. A roomer’s right to use of the premises depends on his contract with respect thereto, and what notice, if any, is required to terminate his right to such use, in the absence of fault on his part, depends on the particular circumstances of the case. But here there is no claim that the roomer by reason of any contractual provision or agreement was entitled to notice in the event of his default in payment of rent. Even the tenant may waive his statutory notice
We cannot disregard the fundamental distinction between tenant and roomer. To do so would involve many complications. Along with' the tenant’s right to a notice to quit is the duty on him to give notice if he desires to terminate the tenancy. If we hold by analogy that a roomer is entitled to notice, then by the same analogy we would have to impose on all roomers a corresponding duty to give notice. If we disregard the distinction then we must hold, contrary to Beall v. Everson, supra, that the taking of a roomer is a violation of a covenant against subletting. Furthermore, unless the distinction is maintained, a roomer may be subjected to the rule that upon a demise there is no implied warranty that the premises are fit for habitation, that the tenant takes the risk of safe occupancy, and takes the premises as he finds them “under the gracious protection of caveat emptor.”
Our conclusion is that the trial court was in error in ruling that regardless of whether or not plaintiff owed rent he could not be evicted without notice.
Was the trial court correct in ruling that plaintiff could not be evicted without
“Whenever any person shall • forcibly enter and detain any real property, or shall unlawfully, but without force, enter and unlawfully and forcibly detain the same; or whenever any tenant shall unlawfully detain possession of the property leased to him, after his tenancy therein has expired; * ;J< ‡ »
Plainly, in the ordinary case of a roomer there is no forcible entry and detainer; nor is there unlawful entry, without force, and a forcible detainer. This leaves only the case of unlawful detention by a tenant after expiration of his tenancy. As we have already seen, however, a roomer is not a tenant and has no tenancy. We, therefore, fail to see how an action under this section could be sustained against a roomer, and as this is our only statute relating to summary possession, we conclude that the trial court was in error in instructing the jury that it was necessary to institute court proceedings against plaintiff for possession of the room. In some jurisdictions the forcible entry and detainer statute is so broadly worded as to include an action against a roomer
Our decision is necessarily based on the ground that there was evidence from which the jury could have found that the roomer was delinquent in rent, but we are not to be understood as holding that the evidence compelled such a finding. If on a new trial the jury should find that the roomer was not in arrears, then his eviction was unlawful and he would be entitled to his damages.
Reversed with instructions to award a new trial.
Code 1940, Supp. V, §§ 45 — 1601 to 1611.
Carroll v. Cooney, 116 Conn. 112, 163 A. 599; Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947.
Code 1940, Supp. V, § 45 — 1611 (a).
Code 1940, Supp. V, § 45 — 1611 (f).
Code 1940, Supp. V, § 45 — 1607 (b).
Code 1940, Supp. V, § 45 — -1605 (b).
Code 1940, § 45 — 902.
Code 1940, § 45 — 903.
Code 1940, § 45 — 904.
Mathews v. Livingston, 86 Conn. 263, 85 A. 529, Ann.Cas.1914A, 195.
Dewar v. Minneapolis Lodge, 155 Minn. 98, 192 N.W. 358, 32 A.L.R. 1012; Roberts v. Casey, 36 Cal.App.Supp.2d 767. 93 P.2d 654; Messerly v. Mercer, 45 Mo. App. 327.
Code 1940, § 45 — 908.
Hariston v. Washington Housing Corporation, D.C.Mun.App., 45 A.2d 287, 288, and cases there cited. See Coggins v. Gregorio, 10 Cir., 97 F.2d 948, where a tenant sought to escape the rule by asserting he was a mere lodger.
Thurston v. Anderson, D.C.Mun.App., 40 A.2d 342.
See Roberts v. Casey, 36 Cal.App.Supp.2d 767, 93 P.2d 654.