Opinion
No. 4235
Decided March 25, 1949.
Landlord and tenant — Forcible entry and detainer — Housing authority may maintain action, when — Entitled to recover possession under state law, when — Statutory notice and notice required by lease given — Request for separate finding of facts and conclusions of law — Time for filing.
1. Where judgment is rendered on October 20, 1948, and three days thereafter a motion for new trial is filed, which is overruled on November 8, 1948, a request for a separate finding filed on November 9, 1948, is not seasonably made and will be denied.
2. Under the provisions of Section 209 (b) of the Housing and Rent Act of 1947, a housing authority may maintain an action to evict a tenant "where such action or proceeding is authorized by the statute or regulation under which such accommodations are administered"; the effect of subsection (b) of Section 209 was to remove housing authorities from the necessity of complying with the provisions of Section 209 (a).
3. Where the housing authority and a tenant entered into a written lease which provided that the lease could be terminated by either party upon giving 15 days notice in writing, and where the evidence shows that the housing authority did give such 15-day written notice to the tenant terminating the lease, and also served the statutory three-day notice to leave the premises the housing authority is entitled to recover possession of the leased premises under state law.
APPEAL: Court of Appeals for Franklin county.
Mr. Wm. Harvey Jones, for appellee.
Mr. H.B. Yarnell, for appellants.
This is an appeal on questions of law from the Municipal Court of Columbus which rendered judgment against the defendants, appellants herein, in a forcible entry and detainer action. The defendants assign as error that the judgment is contrary to law and that the court erred in refusing to enter a separate finding of facts and conclusions of law requested by defendants.
The plaintiff, Columbus Metropolitan Housing Authority, introduced the lease under which the defendants occupied the premises and a 15-day notice that the lease was terminated, the statutory three-day notice to leave the premises, both notices being properly served on defendants, and rested. No defense was interposed.
The lease, which was executed in February 1946, contained a provision that the lease was automatically renewed from month to month unless terminated by either party upon giving a 15-day notice in writing. The evidence shows that the 15-day notice was served on September 15, 1948, terminating the lease as of September 30, 1948. The three-day statutory notice was served on October 1, 1948, and suit was instituted on October 7, 1948. Judgment was rendered on October 20, 1948. On October 23, 1948, a motion for new trial was filed which was overruled on November 8, 1948. On November 9, 1948, the defendants filed a request for a separate finding which was on that date denied.
The request for a separate finding was not seasonably made and no error resulted in denying the request.
The plaintiff contends that the serving of the 15-day notice terminated the lease according to its terms and that thereafter the defendants held over their term; and that plaintiff is entitled to restitution under the law of this state. The defendants contend that even though the 15-day notice has been given, terminating the lease, they cannot be evicted without some cause being shown other than the termination of the lease.
The plaintiff is a corporation organized under the laws of the state of Ohio.
Section 209 (a) of the Housing and Rent Act of 1947 sets forth in six separate paragraphs grounds on which a tenant may be evicted. However, Section 209 (b) of the same act became effective July 1, 1947 (Public Law 129-80th Congress) and provides as follows:
"Notwithstanding any other provision of this act, the United States or any state or local public agency may maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action or proceeding is authorized by the statute or regulations under which such accommodations are administered: Provided, That nothing in this subsection shall be deemed to authorize the maintenance of any such action or proceeding upon the ground that the income of the occupants of the housing accommodations exceeds the allowable maximum unless such income, less any amounts paid to such occupants by the Veterans' Administration on account of service-connected disability or disabilities, exceeds the allowable maximum." (Emphasis ours.)
The effect of subsection (b) of Section 209 was to remove housing authorities from the necessity of complying with the provisions of Section 209 (a). Under the provisions of Section 209 (b) a housing authority may maintain an action to evict a tenant "where such action or proceeding is authorized by the statute or regulations under which such accommodations are administered." This particular provision was preserved in Public Law 301 known as the McCarthy Act, effective July 31, 1947. It was also preserved in Public Law 901 (Housing Act of 1948) passed by Congress on August 10, 1948, amending the National Housing Act. (See Section 502 (b), Title V, Housing Act of 1948.)
Consequently, the plaintiff could maintain the action if authorized by the statute of Ohio or a regulation under which such accommodations are administered. In the instant case, the lessees were bound by the provisions of the lease which permitted the housing authority to terminate the lease upon giving fifteen days written notice. In Brand v. Chicago Housing Authority (U.S.C.C.A.), 120 F.2d 786, where a number of tenants sought an injunction against eviction, the court, in discussing the provisions of the lease which gives the right of either party to terminate the lease on 15 days notice, on page 788, held:
"It is our opinion that this provision with reference to the termination of the tenancy is valid and binding upon plaintiffs in the same manner as though the lessor had been a private person rather than a governmental agency."
The lease being legally terminated according to its terms, the lessees held over their term and have no right of occupancy thereafter. Section 10449, General Code.
The bringing of the action to recover possession was authorized by the statutes of this state and the provisions of the lease which may be construed as a regulation binding on the parties. Therefore, the judgment of the trial court was not contrary to law.
Finding no error in the record the judgment is affirmed.
The filing of the application for rehearing, for which no provision is made by rule, has been brought to the attention of the court. The court has carefully reconsidered the matter and rendered this as the only official opinion of the court.
Judgment affirmed.
MILLER, P.J., HORNBECK and WISEMAN, JJ., concur.