Summary
holding that notice given on May 24 to vacate by July 1 satisfied former statute stating that “notice equal to the rent period shall be sufficient” where rent period was monthly
Summary of this case from Harrington v. Metropolis Property Mana.Opinion
No. 3806.
Decided December 7, 1948.
A notice to quit, served May 24 upon a tenant at will who occupied the premises at a monthly rental, requiring him to vacate the premises on or before July 1 meets the requirements of R. L., c. 413, s. 3 that "a notice equal to the rent period shall be sufficient." The fact that the federal Housing and Rent Act of 2948 requires that no tenant shall be obliged to surrender possession of housing accommodations until the expiration of 60 days after written notice to the tenant does not preclude the maintenance of a possessory action under R. L., c. 413, s. 12 brought by the landlord more than 60 days after the expiration of such notice as the local statute (s. 3) required.
POSSESSORY ACTION under R. L., c. 413, s. 12, commenced in the Municipal Court of Keene to recover possession of a tenement at 90 Eastern Avenue, belonging to the plaintiff and occupied by the defendant as a tenant at will at a monthly rental of $20 per month. Trial by the Court, Olson, J., who rendered judgment for the plaintiff and allowed a bill of exceptions in the form of an agreed statement of facts, under R. L., c. 377, s. 20, which provides for the direct transfer of questions of law from municipal courts to this court. "The plaintiff's notice to quit dated May 24, 1948, was served upon the defendant the same day, notifying the defendant to vacate the premises on or before July 1, 1948 for the reasons stated therein. The defendant failed to surrender the premises and a Municipal Court writ dated July 26, 1948, returnable at the Keene Municipal Court on August 4, 1948, was duly served upon the defendant." The Housing and Rent Act of 1948 (80th Congress, 2nd session, c. 161, Public Law 464) s. 209 (c), provides as follows: "No tenant shall be obliged to surrender possession of any housing accommodations pursuant to the provisions of paragraphs (2), (3), (4), (5), or (6) of subsection (a) until the expiration of at least sixty days after written notice from the landlord that he desires to recover possession of such housing accommodations for one of the purposes specified in such paragraphs." The defendant moved to dismiss this action on the ground that the notice given to the defendant was insufficient as a matter of law. The Court overruled this motion and the defendant excepted. It appears by the agreed statement that "counsel agree that the provisions of section 209 (c) of the Housing and Rent Act of 1948 are applicable in this case, but disagree as to the interpretation thereof insofar as it pertains to requirements of notice under the within agreed statement of facts."
Homer S. Bradley, for the plaintiff, filed no brief.
Joseph T. Cristiano, for the defendant, filed no brief.
The only question raised by the record has to do with the interpretation of the Federal Act here involved "insofar as it pertains to requirements of notice under the within agreed statement of facts." The Municipal Court writ in this action was dated July 26, 1948, and was returnable on August 4, 1948. It thus appears that more than sixty days from May 24, 1948, the day upon which the notice was served upon the defendant, had elapsed before the commencement of the present suit and a fortiori before judgment therein. The local statute (R. L., c. 413, s. 12) authorizes this form of action only against a "lessee, occupant, mortgagor, or other person in possession, holding it [the tenement] without right, after notice in writing to quit the same as herein prescribed."
The requirements of the notice to quit are prescribed by R. L., c. 413, s. 3, where it is provided that "A notice equal to the rent period shall be sufficient, and three months' notice shall be sufficient in all cases." The Federal Statute now under consideration does not purport to state what sort of a notice to quit shall be given. Any notice given in accordance with the local law is sufficient. The provision that "No tenant shall be obliged to surrender possession of any housing accommodations . . . until the expiration of at least sixty days after written notice from the landlord that he desires to recover possession of such housing accommodations" merely requires that sixty days after a written notice to quit shall have expired before a tenant shall be "obliged" to surrender possession of any housing accommodations. It has no reference to the requirements for maintaining an action, but merely prescribes the time within which a writ of possession or other process designed to "oblige" the tenant to surrender possession of his housing accommodations shall not issue. This is the view of the Federal law taken by the Court of Appeals of Louisiana in Porea v. Moses, 35 S. (2d) 152, and by the Court of Appeals of Ohio, 8th District, Cuyahoga County, in Lupi v. Flack, 83 N.E.2d 247. This is also understood to be the administrative interpretation of the act followed by the office of the Housing Expediter who is charged with the administration of the law. With these conclusions we are in accord.
The defendant's motion to dismiss the action "on the ground that the notice given to the defendant was insufficient as a matter of law" was properly denied. As pointed out above, our statute provides that "a notice equal to the rent period shall be sufficient," and in the agreed statement of facts it appears that the premises "were occupied by the defendant at a monthly rental of $20 per month." The notice to quit dated May 24, and requiring the defendant to vacate the premises on or before July 1, 1948, was, therefore, sufficient under our statute. After July 1, the defendant was "in possession without right after notice in writing to quit" and the Trial Court properly ordered judgment for the plaintiff.
Exception overruled.