Tatewosian v. McLellan, 9192

• Decision Date: 11 May 1951
• Docket Number: No. 9192,9192
• Citation: 80 A.2d 879,78 R.I. 207
• Parties: TATEWOSIAN et ux. v. McLELLAN et ux. Ex.
• Court: Rhode Island Supreme Court

Page 879

80 A.2d 879

78 R.I. 207

TATEWOSIAN et ux. v. McLELLAN et ux.

Ex. No. 9192.

Supreme Court of Rhode Island.

May 11, 1951.

Jeremiah S. Jeremiah, Providence, for plaintiffs.

Fergus J. McOsker, Providence, for defendants.

CONDON, Justice.

This is an action of trespass and ejectment which was tried in the superior court and resulted in a directed verdict for the defendants. The case is here on plaintiffs' bill of exceptions containing an exception to that ruling and another to the denial of their motion for a directed verdict.

The facts are undisputed. On November 18, 1947 plaintiffs leased the first-floor tenement at 181 Dudley street in the city of Providence to the defendants for four years at an annual rent of $780 payable in monthly installments of $65. Plaintiffs presented the lease to the federal area rent director in the city of Providence for his inspection and approval. He informed them that the premises as therein described had been decontrolled by the federal Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. On March 15, 1950 the federal area rent director on his own initiative issued an order under the federal Housing and Rent Act of 1949 decreasing the monthly rent to $50 effective as of April 1, 1949 and thereupon formally notified the parties of his action. Plaintiffs ignored the order and continued to demand the stipulated monthly rent which the defendants refused to pay.

On June 5, 1950 plaintiffs brought the instant action against the defendants for nonpayment of rent. Before commencing suit they sent a letter dated May 9, 1950 notifying defendants to quit their tenement on May 13, 1950. There is a provision in the lease which requires the landlord to give the tenant 'five days' written notice' of his intention to terminate the lease because 'of the breach of any condition or covenant therein.' There is a later provision which substantially states that for the breach of any covenant or condition in the lease the landlord may re-enter without notice. These two provisions appear to be inconsistent. However, they may be reconciled, it seems to us, in this manner. In the event of a breach the landlord may invoke either provision but may not claim the benefit of both at the same time. If he elects to give written notice before taking legal steps to re-enter, his notice must conform to the first provision.

The trial justice held the notice defective because it gave defendants only four days to quit and therefore did not conform to the first provision of the lease. However, plaintiffs contend that their letter was not intended as a notice to quit under the lease but was a notice in compliance with a regulation promulgated April 1, 1949 by the federal area rent director, Title 24 C.F.R. (1949 ed.) 1949 supp., § 825.6(b), p. 85, which provides: 'Notice required. (1) * * * Every such notice shall be given to the tenant at least the following period of time prior to the date specified therein for the surrender of possession and to the commencement of any action for removal or eviction: (i) Where the ground specified in the notice for such removal or eviction is nonpayment of rent, not less than three days.' Regardless of what the plaintiffs now say was their intention we are of the opinion that the defendants were entitled to treat the letter as a defective notice under the lease. Therefore the trial justice did not err in so construing it and especially so since plaintiffs were contending before him that their premises were not under the jurisdiction of the area rent...