Opinion
C.A. No. 97L-12-049-1-WTQ.
Submitted: May 15, 2000.
Decided: July 7, 2000.
Letter Opinion and Order on Plaintiff's Motion For Rule Absolute With Respect To A Rule To Show Cause Why It Should Not Have Possession — MOTION GRANTED .
Gentlemen:
This is the Court's Letter Opinion and Order on Plaintiff First National Bank of Chicago's Motion for a Rule Absolute with Respect to a Rule to Show Cause why First National Bank should not be placed in possession of a property it owns at 108 Cannonball Lane, in Newark, Delaware. For the reasons stated herein, that Motion is GRANTED.
FACTS
On December 17, 1997, First National filed a Complaint for Scire Facias Sur Mortgage against Barbara A. Boates on the subject property. The original mortgage and the assignment to First National were both duly filed with the Recorder of Deeds prior to 1997. On May 21, 1998, default judgment was entered against Barbara Boates by this Court in the then due amount of $82,158.87. That default judgment also included judgment interest to the date of confirmation, and five percent counsel fees of the total amount decreed for principal and interest and costs. (Dkt. No. 8). On November 4, 1999, Ms. Boates leased the property to Ms. Corliss Darlene Shorter. (Dkt. No. 11). It appears that on January 11, 2000, the property was sold at sheriff sale and was purchased by First National. In April of this year, First National filed with this Court a Writ of Possession for the property. (Dkt. No. 9). On April 7, 2000, this Judge signed a Rule to Show Cause for Barbara A. Boates and/or any tenants on the property to show why a Writ of Possession should not be awarded to First National for the property. Id. Service was sent to the property, but the Writ was returned non est as to Barbara Boates. On April 13, 2000, the Rule to Show Cause was posted on the property. At that time, it appears that the tenant of the property, Ms. Shorter, informed the Court that Ms. Boates no longer lived at that address. (Dkt. No. 10).
Ms. Shorter then filed a response to First National's Writ of Possession, claiming that she and her three children are tenants of the property under a valid lease and that she should be allowed to remain on the property until the expiration of her lease term in November. On May 1, 2000, a hearing was held on the matter; this Judge reserved decision as to who should have possession of the property and asked the attorneys to submit letters on the possession issue. This Letter Opinion constitutes the Court's ruling following those supplemental submissions.
A copy of her lease is included in the record. (Dkt. No. 11).
DECISION
Both sides here agree that by virtue of 10 Del. C. § 5011 (b) First National is entitled to a Writ of Possession. The Code provision states:
(b) In the event of a judicial sale at law or equity under and by virtue of the foreclosure of any mortgage, or execution upon a mechanic's lien, the purchaser at the judicial sale may have a writ of possession awarded against any person in possession of the real estate so sold, provided the rights of such person in possession arose posterior to the date of the mortgage. . . .
Certainly, there can be no question that Ms. Shorter's tenancy arose "posterior to the date of the mortgage." In Stidham v. Brooks, Del. Supr., 5 A.2d 522 (1939), the Delaware Supreme Court, in interpreting a prior version of this Writ of Possession statute, held that if a tenant, with an agreement to pay rent, comes into possession before the order of a judicial sale , he was not within the scope of the then existing statute and immediate possession could not be granted to the subsequent judicial sale purchaser. 5 A.2d at 526. Less than two months after the Stidham decision, the Legislature in 1939 amended the Writ of Possession statute to allow award of a Writ of Possession against any person in possession of the real estate, so long as the rights of such person in possession arose posterior to the date of the mortgage . 42 Del. Laws, Ch. 316. In any event, Ms. Shorter's tenancy arose posterior to the date of the mortgage and, under the current statute, a Writ of Possession properly lies against her.
Ms. Shorter, however, argues that 10 Del. C. § 5017 indicates a statutory preference for a tenant's continued possession of property which has been subject to foreclosure through no fault of the tenant. Section 5017, dealing with the stay of the execution of a Writ of Possession, states:
On making the rule for a writ of possession absolute, the court may direct a reasonable stay of execution. If the person in possession is a tenant, execution shall be stayed until the usual expiration of the year of tenants, according to the custom of letting in the place, or neighborhood, wherein the premise are situate.
This statute, § 5017, has not been altered since at least 1852 and has been used sparingly. The stay of execution of the Writ of Possession statute appears to be a vestige from earlier days, where there was a usual time of letting for individuals to grow agricultural crops. See Ehison v. Dolbey et al., Del. Super., 3 Penne. 45, 49 A. 178, 179 (1900) (Spruance, J. charging the Jury). In fact, the Court has not found, and the parties have not cited, a Delaware case where the statute has been applied in modern times. Under the statute, the Court is permissibly authorized to direct a reasonable stay of execution, but that stay may be relatively short. See Kent v. Pyle et al, Del. Super., 2 Penne. 242, 45 A. 716, 717 (1899) (ordering a stay of execution for 15 days). Indeed, it may be that § 5017 is undercut by the 1939 Amendment to § 5011 (b).
Ms. Shorter candidly admits that the language of 10 Del. C. § 5017 does not specifically refer to a written lease, but notes that such language indicates a legislative preference for a tenant's continued possession. Under the terms of the statute, the Court "shall" stay a proceeding "until the usual expiration of the year of tenants, according to the custom of letting in the place, or neighborhood, wherein the premise are situate." In the modem world of written residential leases, it appears that there would be few situations where there would be a "usual expiration of the year of the tenants." One could envision, in a town like Newark, a situation where all tenancies could naturally coincide with the academic schedule of the University of Delaware (August to August or June to June). That argument, however, cannot exist in this case because the lease runs until November. Furthermore, the Court agrees with First National that it cannot be established there is a "usual expiration of the year of tenants" in Newark. While Ms. Shorter argues that there is a preference for residential leases generally to be one year, there is no claim by Ms. Shorter that all of the leases in this neighborhood expire during the same general time period. Clearly alleged special circumstances would be needed before this statute could apply and none were alleged here. Thus, as a matter of law, Ms. Shorter's claim must fail.
This case is difficult because, under the normal circumstances, after a judgment is entered and the property is sold at a Sheriffs sale, the person in possession is more frequently the owner and not a tenant. Here, Ms. Boates, the Defendant and Landlady, leased the home to Ms. Shorter after the judgment was entered. The Court is certainly sympathetic that Ms. Shorter will have to go through the aggravation of finding a new place to live and moving before her tenancy has expired. But, First National is entitled to possession of the property and will be allowed to take possession of the premises 15 days from the date of this Opinion.
Ms Shorter will certainly not be liable for rent after she moves out of the house. But she remains liable for rent while she occupies the house.
For the foregoing reasons, First National's Motion is GRANTED. An Order may be presented by Mr. Aulgur.