Blanchard v. Kemp

• Decision Date: 09 April 1951
• Docket Number: No. 19555,19555
• Citation: 51 So.2d 639
• Parties: BLANCHARD v. KEMP.
• Court: Court of Appeal of Louisiana — District of US

Page 639

51 So.2d 639

BLANCHARD v. KEMP.

No. 19555.

Court of Appeal of Louisiana, Orleans.

April 9, 1951.

George E. Konrad, New Orleans, for defendant and appellant.

Richard J. Meunier, New Orleans, for plaintiff and appellee.

McBRIDE, Judge.

Mary Blanchard, plaintiff, brought this suit in damages for $2,000 against Richard Kemp, her former landlord, 'for the forcible ejection of your petitioner from the premises 1325 Saratoga Street.' She alleges that she moved from the said premises, which she held under lease from Kemp, the owner, after an ejectment suit had been filed against her by Kemp in the First City Court of New Orleans, which suit was grounded upon a certificate relating to eviction which Kemp had obtained from the Area Rent Director of the Office of Housing Expediter. She charges that Kemp in bad faith secured the certificate which authorized the suit against her, in that he made fraudulent representations to the Area Rent Office in his application for the certificate.

The defendant first filed exceptions of no cause or right of action, which were overruled by the court a qua. He then answered the suit, setting forth several defenses, one of which is that he was and has always been in good faith with reference to the securing of the certificate and his occupancy of the premises.

The trial of the case on its merits below culminated in a judgment in plaintiff's favor for $250, from which defendant has taken this appeal.

We find the undisputed facts of the case to be these: Mary Blanchard, as lessee under a verbal lease, together with her 'common law husband' and her child, occupied the rear three rooms of the five room house bearing municipal number 1325 South Saratoga Street, at a weekly rental of $3.50. The property is one-half of a double house, and the five rooms thereof constitute one unit.

Kemp, the defendant, acquired the property during April of 1949, and we gather from the record that the tenant in the front two rooms vacated shortly after his acquisition. On April 18, 1949, Kemp made application to the Area Rent Director for a certificate authorizing him to pursue his remedies in accordance with the requirements of the local law for the removal or eviction of Mary Blanchard from the rear three rooms, on the ground that he desired the same for his personal use and occupancy as a dwelling as owner thereof. The certificate relating to eviction was issued by the Area Rent Director on May 23, 1949, and authorized Kemp to bring an action under the local law against Mary Blanchard for possession, it being stipulated in the certificate, however, that no action was to be commenced sooner than three months counting from April 18, 1949.

On July 29, 1949, Kemp filed his ejectment suit against Mary Blanchard in the First City Court of New Orleans, where it was docketed under the number 345-676. On August 2, 1949, at which time the rule for possession was pending for trial, Mary Blanchard, believing that Kemp was in good faith in bringing his action against her, and was entitled by law to the possession of the premises for his own personal use and occupancy as a dwelling by virtue of the certificate relating to eviction, a copy of which had been previously served upon her, voluntarily vacated the three rooms and moved her furniture and belongings therefrom. About two weeks afterward, Kemp, which his wife and daughter, moved into the three rooms formerly occupied by Mary Blanchard, and about three weeks later he rented two of the three rooms to two roomers, at a weekly rental of more than double that which had been paid by Mary Blanchard for the three rooms.

At the outset, defendant reurged and argued to us his exceptions of no cause or right of action, which had been overruled by the lower court, and insists upon a maintenance thereof. The exceptions seem to be leveled at an insufficiency of allegations in the petition, and this being the case, and in view of the conclusion we have reached on the merits, the testimony in the case being before us, no prejudice to defendant could possibly result from our not passing on the exceptions, and we shall not do so.

The Housing and Rent Act of 1947, as amended, 50 U.S.C.A. Appendix, § 1899, provides that the Housing Expeditor may, by regulation or order, regulate or prohibit speculative or manipulative practices or renting or leasing practices, including practices relating to recovery of possession, of controlled housing accommodations. Under the authority so conferred by the act, the Office of Housing Expediter, on April 1, 1949, promulgated rent regulations which, so far as material to this case, provide that so long as the tenant continues to pay the rent to the landlord, no tenant shall be removed from any housing accommodation by action to evict or to recover possession, unless '825.6(c) * * * on petition of the landlord the Housing Expediter certifies that the landlord may pursue his remedies in accordance with the requirements of the local law. The certificate shall authorize the pursuit of local remedies at the expiration of' (825.6(c)(5)(d)) three months from the date of the filing of the petition in the event the landlord seeks to recover possession for his immediate and personal use and occupancy as housing accommodations.

Section 205 of the act, 50 U.S.C.A. Appendix, § 1895, makes provision for the assessment of severe civil damages against any landlord who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed, but nowhere is it provided in the act, or in the regulations issued thereunder, that there shall be available to any tenant a civil remedy in the event...