Rubin v. Josephson

• Decision Date: 04 June 1984
• Citation: Rubin v. Josephson, 478 A.2d 665 (Me. 1984)
• Parties: Peter J. RUBIN et al. v. Jean C. McCall JOSEPHSON.
• Court: Maine Supreme Court

Page 665

478 A.2d 665

Peter J. RUBIN et al. v.Jean C. McCall JOSEPHSON.

Supreme Judicial Court of Maine.

Argued May 2, 1984.

Decided June 4, 1984.

Bernstein, Shur, Sawyer & Nelson, Peter J. Rubin(orally), Portland, for plaintiffs.

Ricky L. Brunette(orally), Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

GLASSMAN, Justice.

The defendant, Jean C. McCall Josephson, appeals from a judgment of the Superior Court (Cumberland County) denying her appeal from an order of the District Court, Portland, issuing a writ of possession upon the plaintiffs' complaint for forcible entry and detainer, 14 M.R.S.A. § 6001 (Supp.1983-1984).The defendant raises two issues for our review.First, the defendant contends the District Court erroneously determined that her written lease was terminated by reason of her nonpayment of rent.Second, the defendant argues the District Court exceeded its authority in a summary forcible entry and detainer action by entering findings of fact and conclusions of law pertaining to the plaintiffs' lack of responsibility for the damaged condition of the premises.Agreeing with the first contention, we reverse the judgment.

Under a three-year written lease executed in January, 1982, Jean C. McCall Josephson entered into possession of a condominium unit in a development in Cape Elizabeth.When in October, 1982, Josephson became more than fourteen days in arrears in her monthly rental obligation, plaintiffs-lessors Peter J. Rubin, Howard A. Goldenfarb, and John P.M. Higgins served Josephson with notice to tender the rent due or quit the premises.Josephson failed to comply with the notice, and the current action for forcible entry and detainer, in which the plaintiffs seek to recover possession of the condominium unit, was instituted.

On November 17, 1982, the defendant moved to dismiss the complaint.The defendant asserted the court was precluded from issuing a writ of possession of the premises because the complaint contained no allegation that the lease had been terminated or forfeited, and the lease contained no provision relating to termination or forfeiture for reason of nonpayment of rent.Subsequently, the defendant filed an answer to the complaint in which she admitted being over fourteen days in arrears in rent, but asserted such failure was excused.Three affirmative defenses were raised: the plaintiffs had breached the lease by failing to repair the premises as required; the condominium was damaged to an extent rendering it unfit for occupation as anticipated in the lease; and the plaintiffs had breached the covenant of habitability set forth in 14 M.R.S.A. § 6021(1980and Supp.1983-1984).

After a two-day hearing, the District Court, on December 6, 1982, denied the defendant's motion to dismiss and issued a writ of possession of the premises.On December 30, 1982, upon a rule 52(a) motion by the defendant, the court entered findings of fact and conclusions of law in support of its holding.Finding 4 read:

The obligation to pay rent pursuant to the terms of the lease is a material, essential and substantial term of the lease and the lease was subject to termination for failure to pay rent, pursuant to paragraph 13 of the lease and otherwise according to law.

Conclusion 1 read:

The Defendant, without any legal justification, breached her lease with the Plaintiffs by failing to pay rent and the lease was thereafter properly terminated by Plaintiffs.The Plaintiffs did not breach their lease obligations to the Defendant.

Finding the plaintiffs had violated no statutory obligation to the defendant in regard to warranties, ¹ and the plaintiffs had complied with the procedural requirements of 14 M.R.S.A. §§ 6001 and 6002, the court declared the plaintiffs were entitled to possession of the premises.The Superior Court affirmed, ² and this appeal follows.

I.

The judicial power in a forcible entry and detainer action--a summary proceeding to determine who has a right to immediate possession of real property to the exclusion of another--is purely statutory in origin.³Tozier v. Tozier, 437 A.2d 645, 647(Me.1981);Bicknell Manufacturing Co. v. Bennett, 417 A.2d 414, 418(Me.1980);Eveleth v. Gill, 97 Me. 315, 317, 54 A. 756, 757(1903).Therefore, to be entitled to a writ of possession upon a complaint for forcible entry and detainer, the party seeking possession must bring himself within the terms of the controlling statute.Gilbert v. Gerrity, 108 Me. 258, 260, 80 A. 704, 705(1911);Eveleth v. Gill, 97 Me. at 317, 54 A. at 757.Accordingly, the plaintiffs must have alleged and proved sufficient facts bringing them within the terms and conditions of 14 M.R.S.A. § 6001, which in pertinent portion reads:

§ 6001.Availability of remedy

1.Persons against whom process may be maintained.Process of forcible entry and detainer may be maintained against a disseisor who has not acquired any claim by possession and improvement; against a tenant holding under a written lease or contract or person holding under such tenant; against a tenant where the occupancy of the premises is incidental to the employment of a tenant; at the expiration or forfeiture of the term, without notice, if commenced within 7 days from the expiration or forfeiture of the term; and against a tenant at will, whose tenancy has been terminated as provided in section 6002.

(emphasis supplied).The specific question presented is does section 6001 require that the nonpayment of rent by the defendant result in forfeiture of the term of the written lease before the plaintiffs can exercise the right to forcible entry and detainer?

At initial glance, the various clauses within semicolons in section 6001 appear to be independent.So read, section 6001 would provide a lessor the right to maintain a forcible entry and detainer action against a tenant holding under a written lease, without specifying the breach which triggers the right.The plaintiffs argue it can be logically inferred from section 6001 that the right to maintain a forcible entry and detainer action arises when a tenant holding under a written lease breaches a material, essential, and substantial term of the lease, such as the obligation to tender rent.Were we to believe that the various clauses within section 6001 are independent, we would be inclined to agree.The legislative history of section 6001, as well as common sense, however, dictates a contrary result.

The forcible entry and detainer statute dates well back into the 1800s.Prior to amendment in 1933the statute provided:

Process of forcible entry and detainer may be maintained against a disseizor who has not acquired any claim by possession and improvement; against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice, if commenced within seven days from the expiration or forfeiture of the term; and against a tenant at will, whose tenancy has been terminated as provided in the following section.

R.S. ch. 108, § 1(1930).Under this version of the statute, there was no question that the right to maintain a forcible entry and detainer action against one holding under a written lease arose only upon expiration or forfeiture of the term.As stated in Gilbert v. Gerrity, "The process is authorized in but four cases, viz: ... against a tenant occupying under a written lease which has terminated; against such tenant when the lease is forfeited...."Gilbert v. Gerrity, 108 Me. at 260, 80 A. at 705.Therefore, the plaintiffs' contention that forfeiture or expiration of the term is not a prerequisite to maintenance of a forcible entry and detainer action is only correct if the legislature, when amending the statute in 1933, intended to relieve the lessor of the obligation of alleging and proving expiration or forfeiture.Such does not appear to be the case.The legislative history surrounding the 1933amendment gives no indication of an intent to change the statute in such manner.Rather, all that appears to have been intended was the addition of a fourth person against whom a forcible entry and detainer action could be maintained, i.e., "against a tenant where the occupancy of the premises is incidental to the employment of a tenant...."P.L.1933, ch. 177, § 1(clause 3 in § 6001).The placement of the provision appears to reflect an intent to limit the right to maintain a forcible entry and detainer action against both a tenant holding under a written lease and a tenant occupying premises as an incidence of employment to situations in which the term has expired or been forfeited.The placement of the semi-colons appears to be the sole result of less than meticulous draftsmanship.

Moreover, common sense convinces us that the legislature, in separating by semicolons the clauses "tenant holding under a written lease" and "at the expiration or forfeiture of the term," did not intend to remove the stated prerequisite to maintenance of a forcible entry and detainer action against a tenant holding under a written lease.Section 6001 begins with the phrase, "Process of forcible entry and detainer may be maintained against ..." and then lists four categories of individuals, each category within semicolons.The "after the expiration or forfeiture of a term" phrase is also within semicolons, and is placed between different categories of individuals to which section 6001 may apply.This phrase makes no sense if separated from the two clauses preceding it and read together only with the phrase "Process ... may be maintained against ...."

Having determined section 6001 requires expiration or forfeiture of term as a condition to maintenance of a forcible entry and detainer action against a tenant holding under a written lease, ⁴we must now consider whether the defendant's failure to pay the rent due amounted to a forfeiture of the lease.At common law, mere...