Freedman v. Sidrich Realty Corp.

• Decision Date: 30 November 1955
• Citation: 130 N.E.2d 592,333 Mass. 261
• Parties: Hyman M. FREEDMAN v. SIDRICH REALTY CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 592

130 N.E.2d 592

333 Mass. 261

Hyman M. FREEDMAN v. SIDRICH REALTY CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 1955.

Decided Nov. 30, 1955.

Edward J. Barshak, Boston, Melvin J. Dangel & Joseph B. Silverio, Boston, with him, for plaintiff.

Max Kabatznick, Boston, Marvin N. Geller, Boston, with him, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

The plaintiff sues under the housing and rent act of 1947, 50 U.S.C.A.Appendix, § 1895, for alleged overcharges of rent. A demurrer to the declaration for failure to state a cause of action was sustained, and the plaintiff appealed without taking advantage of leave to amend.

The declaration is in two counts, which are substantially identical except that count 1 asks for treble damages. It is alleged that on June 1, 1950, the plaintiff leased from the defendant 'a controlled housing accommodation' on the first floor of 2 Hiawatha Road, Mattapan district, Boston, 'with the right to sublet as housing accommodations a part of said apartment.' The lease, a copy of which is annexed to the declaration, provides, 'The said premises [consisting of six rooms, reception hall, and bath] are to be used by the lessee for the purpose of conducting a dental office. * * * The lessee shall have the right to sublet a portion of the rear of the leased premises to Sholom Bloom or any other tenant reasonably satisfactory to the lessor. The lessor, however, shall not be unreasonable in withholding permission to such subletting. * * * And the lessee does hereby * * * covenant * * * [that he] will not assign this lease nor underlet the whole or any part of the said premises without first obtaining on each occasion the consent in writing of the lessor.' Other allegations of the declaration are that the plaintiff occupied two rooms as a dental office from June 1, 1950, to May 1, 1951, and sublet the remaining portion for dwelling purposes to Daniel Cooper, sharing the use of a hall and bathroom. The apartment is registered with the area rent office of the office of rent stabilization as a six-room housing accommodation and 'is controlled under the housing and rent act of 1947, as amended * * * and the regulations issued pursuant thereto.' From June 1, 1950, to May 1, 1951, the defendant was the owner and the maximum rent was $43.20. The defendant demanded and received from the plaintiff $80 a month for the eleven months preceding the bringing of this action. This is an overcharge of $36.80 a month, aggregating $404.80, and is in violation of the housing and rent act of 1947 and of the rent regulations issued thereunder.

Pertinent provisions of the housing and rent act of 1947, as amended, are: Section 204(b): '* * * no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established * * *.' 50 U.S.C.A.Appendix, § 1894(b). Section 205: 'Any person who demands, accepts, receives, or retains any payment of rent in excess of the maximum rent prescribed under the provisions of this Act * * * or any regulation, order, or requirement thereunder, shall be liable to the person from whom such payment is demanded, accepted, received, or retained * * *.' 50 U.S.C.A.Appendix, § 1895(a). Section 202(b); 'The term 'housing accommodations' means any building, structure, or part thereof, of land appurtenant thereto, or any other real or personal property rented or offered for rent for living or dwelling purposes (including houses, apartments, rooming- or boarding-house accommodations, and other properties used for living or dwelling purposes) together with all privileges, services, furnishings, furniture, and facilities connected with the use or occupancy of such property.' 50 U.S.C.A.Appendix, § 1892(b). Section 202(c): 'The term 'controlled housing accommodations' means housing accommodations in any defense-rental area * * *.' 50 U.S.C.A.Appendix, § 1892(c).

Whether the premises are 'controlled housing accommodations' depends not upon the terms of the lease, Popplewell v. Stevenson, 10 Cir., 176 F.2d 362, but rather upon the actual use made of them. West v. Conrad, 9 Cir., 177...