McCall v. Fickes
| Citation | 556 P.2d 535 |
| Decision Date | 15 November 1976 |
| Docket Number | No. 2611,2611 |
| Parties | John R. McCALL and John L. McCall, Appellants, v. Lester FICKES and Dorothy Fickes, Appellees. |
| Court | Supreme Court of Alaska (US) |
Dennis E. Cook, Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for appellants.
Thomas P. Blanton, Whiting & Blanton, Fairbanks, for appellees.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
The McCalls have appealed a superior court judgment granting 'restitution' of certain rental premises to Fickes. Substantively, the instant appeal raises questions concerning the relationship between the Uniform Residential Landlord and Tenant Act, AS 34.03.010 et seq., and Alaska's Forcible Entry and Detainer Law, AS 09.45.060, et seq.
The Fickes are owners of a mobile home park located near Fairbanks. In November of 1974 the J. McCall Company, a service company for pipeline contractors, purchased a trailer from fairbanks Mobile purchased a trailer from Fairbanks Mobile McCall, Jr., who anticipated arriving in April of 1975. Pursuant to an agreement with the J. McCall Company, Fairbanks Mobile Homes located a space in the mobile home park owned by Fickes and placed the purchased trailer in an allocated rental space within the park. 1
Prior to John McCall's arrival in April, 1975, Lester Fickes forwarded a letter to the J. McCall Company indicating that rent was due for a period of approximately five months and enclosed a rental agreement. Although the McCalls claim that the agreement was signed, it was not forwarded to Fickes at that time. However, rent for the previous approximate five-month period was sent to Fickes. In May John McCall, Jr. arrived and proceeded to occupy the trailer. Rent for April and May was tendered and accepted early in May after a concededly defective notice of termination was received by Mr. McCall. At this point in time, rent for an entire year in advance was offered by the McCalls, but Fickes refused the offer. Thereafter, a second notice of termination giving McCall 40 days to vacate was forwarded on May 21, 1975. After receiving this notice of termination the McCalls tendered the June rent which was accepted by Fickes on May 27. A June 25th tender of the July rent for the trailer space was refused by Fickes and thereafter Fickes filed an action for Forcible Entry and Detainer seeking restitution of the trailer space from the McCalls.
After a non-jury trial the superior court granted Fickes his requested relief but stayed its judgment pending resolution of this appeal. We affirm the superior court's judgment.
Before reaching appellants' specifications of error, we think it appropriate to briefly discuss the tension between the Uniform Residential Landlord and Tenant Act and Alaska's Forcible Entry and Detainer statutes. The F.E.D. statutory scheme, the older of the two, is firmly grounded in the common law notion that possession of land is a privilege of the lord who has seisin. The F.E.D. statutes contemplate a summary proceeding which makes no provision for consideration of the tenant's claims or defenses, other than prepayment of rent. 2 The more recently enacted Uniform Act constitutes a basic reform of landlord-tenant law, 3 according tenants previously unrecognized rights by recognizing the contractual nature of the landlord-tenant relationship. 4
The rental agreement entered into by the parties does not specify a term; it deals primarily with the rules and regulations a tenant must follow. The agreement does provide that the rent for the trailer space is $80.00 per month. AS 34.03.020(d) of the Uniform Act provides that:
Unless the rental agreement fixes a definite term, the tenancy shall be week to week in the case of a tenant who pays weekly rent, and in all other cases month to month.
Thus, we must evaluate appellants' several specifications of error in the context of a month-to-month tenancy.
As their initial specification of error, the McCalls contend that the superior court erred when it found that Fickes' institution of legal proceedings, seeking termination of the tenancy and possession of the trailer space, was instituted because Fickes did not want to continue the relationship because of the uncertainty of his dealings with the McCalls. Our review of the record leads us to conclude that this finding of fact is not clearly erroneous. 5
The McCalls next contend that the superior court erred when it refused to hold that Fickes' acceptance of the late rent payments constituted waiver of his right to terminate the rental agreement. According to appellants' analysis, AS 34.03.240 of the Uniform Act mandates a holding on our part that Fickes waived his right to terminate the rental agreement. This statute provides:
Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by the tenant that varies from the terms of the rental agreement or rules or regulations subsequently adopted by the landlord constitutes a waiver of the right of the landlord to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred. 6
The Fickes counter the McCalls' reliance on AS 34.03.240 by citation to other sections of the Uniform Act. AS 34.03.290(b) and (c) provide respectively:
The landlord or the tenant may terminate a month to month tenancy by a written notice given to the other at least 30 days before the rental due date specified in the notice.
If the tenant remains in possession without the landlord's consent after the expiration of the term of the rental agreement or after its termination, the landlord may bring an action for possession . . ..
The Fickes also rely on AS 34.30.270, which provides that:
If the rental agreement is terminated, the landlord may have a claim for possession and for rent and a separate claim for actual damages for breach of the rental agreement.
Because the Uniform Residential Landlord and Tenant Act does not explicitly set forth a procedure for bringing an 'action for possession,' Fickes contends that F.E.D. procedures may be used where they do not conflict with the Uniform Act. We are in agreement with this salutary approach and conclude that as a matter of statutory construction, the Uniform Residential Landlord and Tenant Act should be harmonized with our Forcible Entry and Detainer statutes.
The Fickes view McCalls' waiver argument as inapposite and characterize the case as one in which a landlord involved in a month-to-month tenancy simply decided to terminate that tenancy. Additionally, Fickes argues that regardless of intent a landlord has the right pursuant to AS 34.03.290(b) and (c), previously quoted, to terminate a periodic tenancy.
Thus, we are faced with the question whether the provisions of AS 34.03.240, dealing with the waiver of a landlord's right to terminate, precluded Fickes from terminating the month-to-month tenancy in the case at bar. Month-to-month tenancies are traditionally terminable at will for any reason; the entire thrust of the arrangement is to allow either party to end it on short notice without incurring any additional liabilities. Parties who desire firm commitments for extended periods of time can bargain for longer fixed terms in order to assure continued presence on the premises. Further, the Uniform Act treats month-to-month tenancies separately from arrangements involving longer fixed terms. From this separation we think it a reasonable inference that such tenancies constitute a special class, not necessarily governed by all provisions of the Uniform Act. 7
Thus, while 'rental agreement' is defined in AS 34.03.360 as 'all agreements . . . embodying the terms and conditions concerning the use and occupancy of a dwelling unit . . .', the term 'rental agreement' is not used in the Uniform Act in connection with month-to-month tenancies. In fact, AS 34.03.020(d) fixes a month-to-month tenancy, in absence of agreement by the parties to a different term in the rental agreement, if rent is paid on a monthly basis. In such cases the landlord is specifically given the power to terminate the tenancy by sending a 30-day written notice.
Allowing a landlord to terminate a month-to-month tenancy, even though he was accepting late rent, on the basis that a pattern of late rent causes him to be unsure about the viability of a future relationship with his tenants, does not prevent the tenant from asserting his rights under the Act. For example, deducting partial rent to pay for heat wrongfully withheld by the landlord (see AS 34.03.180) could result in attempted eviction by the landlord. In such a case, the attempted eviction would be retaliatory and would fail. (AS 34.03.310) In short, we hold that AS 34.03.240 should be so interpreted that waiver of the 'right to terminate' a rental agreement refers to rights which arise as a consequence of a breach, and does not concern rights of termination which exist regardless of whether or not a tenant breached a condition of the agreement. Since Fickes always had the right to terminate the agreement with the McCalls, even without cause, by giving a month's notice, he did not waive this right by accepting the late rental payment.
Appellants next contend that the superior court committed reversible reror in finding that there was no retaliatory conduct on the part of the Fickes. Here appellants rely on AS 34.03.310 of the Uniform Act which prohibits retaliatory conduct, as defined in part, as:
(a) Except as provided in (c) and (d) of this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after the tenant has
(2) endeavored to avail himself of...
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Ostlund v. Hendricks
...is to allow either party to end the tenancy on relatively short notice without incurring additional liabilities. See McCall v. Fickes, 556 P.2d 535, 539 (Alaska 1976) (construing a provision similar to ORS 91.855(2)). A landlord or tenant who prefers to have a tenancy for a longer term can ......