Summary
In Pitts v. Cincinnati Metropolitan Housing Authority, 160 Ohio St. 129, 113 N.E.2d 869, the court clearly points out the distinction between the terms "lease" and "license."
Summary of this case from Advertising Corp. v. LinzellOpinion
No. 33359
Decided July 8, 1953.
Landlord and tenant — Presumption relationship exists, when — Owner delivers possession of dwelling for use as home — "License" and "lease" distinguished — Person out of possession and control of premises — No legal duty owing invitees of another, when — Nature of occupation or control to impose legal duty — Entrance steps to leased dwelling — Occupation and control not in landlord, when — Housing authority law — Liability for negligence not imposed on authority, when.
1. Where the owner of a dwelling delivers possession thereof to another for use "as a home" and it is so used and occupied for several years pursuant to a written agreement under which the latter pays monthly rent to the owner, there is a presumption of law that the relationship of landlord and tenant exists between the parties.
2. A license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act and no further, whereas a lease gives a right of possession of the land and the exclusive occupation of it for all purposes not prohibited by its terms.
3. One having neither occupation nor control of premises ordinarily is under no legal duty to an invitee of another with respect to the condition or use of those premises. (Paragraph two of the syllabus in Brown v. Cleveland Baseball Co., 158 Ohio St. 1, approved and followed.)
4. In order to have the occupation or control of premises necessary to impose such legal duty with respect to the condition or use of those premises, one must ordinarily have the power and the right to admit such individuals to the premises or to exclude them from the premises. (Paragraph three of the syllabus in Brown v. Cleveland Baseball Co., 158 Ohio St. 1, approved and followed.)
5. Where steps are usable only as a means of ingress to and egress from a leased dwelling, the landlord thereof does not have occupation or control over those steps merely because they rest upon ground otherwise occupied by and within the control of such landlord.
6. The statutes providing for the organization of public housing authorities do not impose upon such an authority liability for negligence in the maintenance of a dwelling leased to another for use as a home, where such housing authority is out of possession and control of such premises.
APPEAL from the Court of Appeals for Hamilton county.
An action was instituted against defendant by Lynn Pitts, herein referred to as plaintiff, by his father and next friend, to recover damages for personal injuries. Likewise an action was instituted against defendant by plaintiff's father, Willie Joe Pitts, to recover for expenses incurred on behalf of plaintiff by reason of those injuries.
As the two actions involve the same operative facts and questions of law, we will refer only to the action by Lynn.
From the petition and opening statements, it appears that in October 1950 the plaintiff, who was then approximately two and one-half years old, was going up the steps leading only to the living unit occupied by his family when the overhang on one side of the third step broke, causing the injuries involved; that the foregoing living unit was owned by defendant, the Cincinnati Metropolitan Housing Authority, and had been built on property owned by the federal government; that that housing unit had been first occupied by plaintiff's father and his family in 1947; that the breaking of the step was caused by its rotten and deteriorated condition; and that plaintiff's father and mother had complained to defendant on three different occasions about that condition but defendant had done nothing about it.
It further appears that the occupancy of this living unit by plaintiff's family was pursuant to a so-called "registration certificate" which reads:
"The undersigned hereby registers for the use and occupancy of the unit identified above at the address shown above; subject to the terms and conditions of occupancy prescribed by the Cincinnati Metropolitan Housing Authority and in effect as of the date of this certificate and subject to payment of the following charges:
"1. Fixed monthly charges: Rent $33.00
"2. Charges for initial period from
3-26-47 to 4-1-47: Rent $ 6.60
"The undersigned occupant(s) certifies that the terms and conditions of occupancy have been read and hereby acknowledges receipt of a copy of this registration certificate and terms and conditions of occupancy. "Date March 22, 1947 Signature of occupant(s)
Willie J. Pitts
Daisy Pitts
"Cincinnati Metropolitan Housing Authority Terms And Conditions of Occupancy"The following terms and conditions of occupancy (hereinafter called terms) are made a part of the registration certificate signed by the occupant.
"Part I — General"1. USE OF DWELLING
"a. An occupant signing a registration certificate shall use this dwelling as a home for his family only. Occupants shall follow rules and regulations which have been made for the safety, comfort, and welfare of all the tenants. Occupants shall enjoy the use of this dwelling and join with the Cincinnati Metropolitan Housing Authority (hereinafter known as CMHA) in making it a desirable place to live. Any failure to furnish utility services shall not be considered to be a violation of this condition.
"b. Occupancy period. The rental period for each dwelling shall be for one month (beginning the first day of the month), from the first date of occupancy until terminated as prescribed in paragraph 5.
"2. TERMS OF PAYMENT
"a. Rates of payment. Rent is payable in advance at the management office on or before the first day of each month, in amounts specified on the registration certificate. Charges for partial periods shall be computed on basis of 1/30 of the monthly rate. Each month shall be considered as having 30 days for the purpose of rental computations.
"b. Initial and recurring payments. Occupants shall pay a full month's rent at time of signing registration certificate before moving into the dwelling. On the first day of the following calendar month the occupant shall pay the amount necessary to adjust charges to the regular rental period.
"3. REFUNDS
"Unearned rent. If the occupant moves from the project before the end of the period for which rent has been paid and has given the housing manager required notice and leaves the dwelling in good condition, the unused rent will be refunded. Refunds will be made on some basis as partial rent periods. 1/30 of the monthly rate. Each month shall be considered as having 30 days for the purpose of refund computations.
"4. UTILITIES
"The CMHA shall furnish the following utility services included in rent, without extra charge: Electricity, gas for heating, cooking and water heating and water.
"Occupants shall pay for utility service and used in excess of that allowed by CMHA.
"5. TERMINATION OF OCCUPANCY
"a. By the CMHA. The CMHA may terminate occupancy by giving advance notice in writing in accordance with state laws under the following conditions: If the occupant fails to pay rent or other charges when due; if the occupant does not comply with all of the terms; if the occupant misrepresents facts required by section 7; if CMHA closes all or part of project; if other accommodations suitable to the occupant are available in other parts of the project or in other projects which are to continue in occupancy under the CMHA and the CMHA offers the occupant an opportunity to use such accommodations at the established charges. The occupant agrees to accept as sufficient any notice delivered personally, affixed to the door of the premises, or mailed to the premises. If the CMHA terminates occupancy it shall have the right to re-enter and take possession of the premises and remove all persons and property.
"b. By the occupant. When an occupant wishes to move from the project he must give the housing manager notice of his intent by filling out a `notice of intent to vacate' not less than 15 days in advance. Occupants engaged in the military service who are transferred to another duty station may give 1 day's notice prior to moving.
"On date of termination, an occupant must remove himself and his property from the project. The dwelling, equipment, and furniture shall be in good order, allowing for reasonable wear and tear. If the occupant leaves personal property in the dwelling or on the project after termination of occupancy by notice or otherwise such property shall be disposed of in accordance with local laws on the abandonment of personal property.
"6. OCCUPANT'S RESPONSIBILITIES
"a. Aid in maintenance. The CMHA and the occupant/s shall co-operate in care of the dwelling and grounds. The occupant shall notify the housing manager of damage or need for repair of property.
"b. Alterations by occupants. Occupants must obtain the consent of the housing manager before making alterations or repairs to the dwelling or its equipment.
"c. Entry. The occupant shall permit the duly authorized representatives of CMHA to enter the dwelling without notice during reasonable hours when necessary in order to provide efficient service (repairs, improvements, etc.).
"d. Transfer or subletting. Occupants must obtain authorization from the housing manager before subletting or giving accommodations to roomers, boarders or lodgers.
"e. Rubbish, garbage, and waste. Occupants shall dispose of rubbish, garbage, and waste in the proper manner in the interest of health, sanitation, and appearance of the project, as determined by the housing manager.
"f. Care of CMHA property. The occupant is responsible for keeping CMHA owned equipment and furiture in good condition and may be required to receipt for them.
"7. INFORMATION REQUIRED BY THE CMHA
"The occupants shall submit to the CMHA upon request, signed statements setting forth the pertinent facts concerning the occupant's household composition, employment status, and family income. CMHA may re-examine such information periodically for the purpose of determining whether the occupant has the right to continue to occupy the dwelling.
"8. REPRESENTATIVES AND WAIVERS
"Representatives of the CMHA have not made any promises with respect to the premises or dwelling other than mentioned herein: The failure of CMHA to enforce any of these terms shall not be considered as a waiver of the terms, but same shall continue in full force and effect.
"The CMHA reserves the right to make such other rules as are necessary for the safety, care, and cleanliness of the premises, and for securing the comfort and convenience of all occupants.
"Part II — Other"1. Aerials. Occupants must obtain written permission from management before putting up an aerial.
"2. Automobile. Occupants shall observe speed limit signs on project streets in the interest of safety of all the occupants. Cars shall be parked only where directed by the housing manager.
"3. Business. Occupants must obtain approval of management before establishing any business on the project.
"4. Fire hazard. Occupants shall take every care to prevent fires and no inflammable property shall be kept on project.
"5. Guests. Guests shall not be permitted to remain an unreasonable length of time (as prescribed by management) without prior consent of management.
"6. Heating. Occupants must obtain permission from management before using any other facilities for heating than are provided.
"7. Laundry. Clothes shall be dried only in designated drying areas.
"8. Pets. Occupants shall not be permitted to keep cats, dogs, or other pets (excluding goldfish, canaries and the like).
"9. Signs. Occupants shall display signs, placards, or banners of any type only after approval of the management.
"10. Storage. Occupants must obtain permission from management to store household property outside the dwelling.
"11. Other. Occupants shall not shake, clean, or hang any bedclothes, rugs, dust cloths, etc., from windows in halls or on roofs of buildings."
After the opening statements of counsel, the trial court in each action directed the jury to return a verdict for the defendant. Judgments were entered on the verdicts returned and motions for new trials were overruled. On appeals to the Court of Appeals, both cases were submitted together and the judgments for defendant were affirmed.
The causes are now before this court on appeal pursuant to allowance of a motion to certify the record.
Mr. C.R. Beirne and Mr. John W. Wilke, for appellants.
Messrs. McCaslin, Imbus McCaslin, for appellee.
The first question raised is whether the relationship between defendant and plaintiff's parents was that of landlord and tenant. On this question, it is appellants' contention that plaintiff's parents were not tenants of the "dwelling" which they occupied but were instead licensees in that dwelling for a consideration, or lodgers therein as distinguished from tenants thereof.
In considering this problem, it may be observed at the outset that this contention was apparently made as an afterthought. Thus, in the plaintiff's father's petition, it is alleged that, at the time of the occurrence claimed to have resulted in injuries to plaintiff, plaintiff "resided with his parents, who were and are now tenants of the defendant occupying apartment No. 1020 Medosh Court in said Valley Homes Project; that Apartment No. 1020 Medosh Court is a self-contained one-family apartment with private entrance reached by use of an outside stairway." Furthermore, in plaintiff's petition it is alleged that "he resided with his parents, who were and now are tenants of the defendant occupying" that apartment as so described. Cf. Ripple v. Mahoning Natl. Bank, 143 Ohio St. 614, 619, 56 N.E.2d 289.
In 51 Corpus Juris Secundum, 518, Section 11, it is said:
"While the presumption of a relationship of landlord and tenant arises from an occupancy of land under an agreement with the owner to pay rent or accompanied by the payment of rent, it is not essential that there be a definite agreement for such payment, and the relationship may arise, although the occupant refuses to agree on any particular amount or to pay any sum whatever, if he occupies with the owner's permission and with the understanding that rent would be demanded."
Here there was an occupancy of the premises involved by plaintiff's parents under an agreement with defendant to pay rent and accompanied by the payment of rent. It is undisputed that plaintiff's parents occupied the premises with defendant's permission and with the understanding that rent was to be paid and would be paid.
In 32 American Jurisprudence, 27, Section 2, it is said:
"The relation of landlord and tenant is created by contract, either express or implied, by the terms of which one person designated `tenant' enters into possession of the land under another person known as `landlord.' A tenant, including a tenant for years, is an occupant who has not only an interest in land, but also some estate, be it ever so little, such as the estate of a tenant at will. He is `one who occupies the premises of another in subordination to that other's title and with his assent express or implied' * * *. There is authority to the effect that presence or absence of possession of the premises is a distinguishing factor between the relationship of landlord and tenant and that of lessor and lessee — that is, the one relation is referable only to the contract, and the other to both the contract and the change in possession of the premises. Thus, it has been said that the lessee is not a tenant until he enters into possession. Usually, however, the word `landlord' as employed in legal parlance, as well as in ordinary usage, means the same as `lessor,' and the word `tenant' the same as `lessee.'"
Here, defendant gave plaintiff's parents possession of the premises under a written contract providing therefor. Obviously, plaintiff's parents were occupying the premises in subordination to the title of defendant thereto and with defendant's express assent. Their relationship was referable not only to an express contract but to the change in possession of the premises.
In 32 American Jurisprudence, 31, Section 5, it is said:
"A license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.
"Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents. Even though a contract purports to be a `license,' if it is strictly within the definition of a lease, it will be construed as such, and not as a license."
Here, the agreement between plaintiff's parents and defendant gave the former the right of possession and the exclusive occupation thereof for all purposes not prohibited, — not merely the occupation of the premises for a particular purpose. As stated in Linwood Park Co. v. Van Dusen, 63 Ohio St. 183, 197, 58 N.E. 576, the parties to a lease have the "right to make any restrictions upon the mode of enjoying the leased property which they might agree upon, provided that such restrictions should not be contrary to public policy."
In other words, restrictions on the use of property by one who occupies it for residential purposes for a consideration and with the consent of the owner thereof do not ordinarily justify the inference that such occupier is not a tenant of that property.
In 28 American Jurisprudence, 544, Section 9, it is said:
"There is a distinction between `apartment houses' and `apartment hotels' so-called. An apartment house may be generally defined as a building arranged in several suites of connecting rooms, each suite designed for independent housekeeping, but with certain mechanical conveniences such as heat, light, or elevator service furnished in common to all the occupants of the building. An apartment hotel is generally understood to apply to buildings which contain nonhousekeeping apartments, wherein no cooking facilities are provided and the proprietor maintains a restaurant for the convenience of his guests and furnishes other service to them. An apartment house is clearly not a hotel, each apartment therein being regarded as a separate dwelling of which its occupant is the tenant. Also, the fact that a particular establishment is called an apartment hotel and operates under the plan above outlined does not in all instances bring it within the definition of an inn or hotel * * *."
Involved here is a suite of rooms designed for independent housekeeping with certain mechanical conveniences such as the utilities provided for by the defendant. Obviously the unit occupied by plaintiff's family was a separate dwelling of which plaintiff's parents, as occupants, were tenants.
In Ripple v. Mahoning Natl. Bank, supra, it was contended, as here, that the relationship of landlord and tenant did not exist. The facts in that case, tending to indicate nonexistence of that relationship, were much stronger than the facts in the instant case. In that case, there was not only a retention of control by the owner for the purpose of repairing, as in the instant case, but also for the purpose of doing daily janitor work. In the instant case, there was no retention of control by defendant for any such purpose of cleaning up the dwelling occupied by plaintiff's parents.
In paragraph 1 of part I of the terms and conditions of occupancy of the registration certificate, it was recognized that plaintiff's parents were to use the "dwelling as a home." It is often said that a man's home is his castle. At any rate, one admittedly has a very considerable control over who shall be permitted to come into that home. See State v. Peacock, 40 Ohio St. 333.
Without further laboring the question, it is apparent that the relationship between defendant and plaintiff's parents was, as a matter of law, that of landlord and tenant.
The next question raised is whether the agreement between defendant and plaintiff's parents provided for retention of sufficient possession and control of the premises in defendant to justify the recognition of liability of defendant to plaintiff for negligence in maintenance of the premises leased to plaintiff's parents.
Unlike in Neckel v. Fox, 110 Ohio St. 150, 143 N.E. 389, the facts in the instant case are not so meagerly stated as to prevent determination of the specific character of the possession and control which defendant had.
Under the so-called registration certificate, which represented the agreement with respect to the occupation of this dwelling by plaintiff's parents, no one could enter that dwelling without their permission, until their occupancy was terminated in accordance with the conditions specified in paragraph 5 of part I thereof, except as provided in paragraph 6c of part I, which reads:
"c. Entry. The occupant shall permit the duly authorized representatives of CMHA to enter the dwelling without notice during reasonable hours when necessary in order to provide efficient service (repairs, improvements, etc.)."
In Brown v. Cleveland Baseball Co., 158 Ohio St. 1, 106 N.E.2d 632, paragraphs two and three of the syllabus, which were concurred in by all the members of this court, read:
"2. One having neither occupation nor control of premises ordinarily is under no legal duty to an invitee of another with respect to the condition or use of those premises.
"3. In order to have the occupation or control of premises necessary to impose such legal duty with respect to the condition or use of those premises, one must ordinarily have the power and the right to admit such individuals to the premises or to exclude them from the premises."
Certainly, defendant had no right to admit anyone to the premises except its representative under certain limited conditions. No representative of defendant is seeking recovery in the instant case. Although the agreement between defendant and plaintiff's parents might under some circumstances have restricted plaintiff's parents to some slight extent with respect to the exercise of their right to admit individuals to the premises, those restrictions were clearly of a reasonable and very limited nature. See paragraphs 6d of part I, and 3 and 5 of part II of registration certificate. Certainly, defendant could not, except in accordance with paragraph 6c of part I of that agreement, authorize admittance of anyone into this dwelling while occupied by plaintiff's parents pursuant to that agreement. The only ones who could authorize such admission were plaintiff's parents. Furthermore, their right to exclude others from the premises was limited only by paragraph 6c of part I of the registration certificate.
This court has consistently held that neither reservation by a landlord of a right nor even his agreement to make repairs justifies a finding that such landlord has retained occupation or control of the premises. Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545; Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343; Ripple v. Mahoning Natl. Bank, supra.
With respect to these holdings it was said in Cooper v. Roose, supra, 322:
"Decisions in other jurisdictions must be analyzed with some care because of the fact that they have frequently been rendered by courts which have held contrary to the holdings of this court, in cases similar to Berkowitz v. Winston, supra, Ripple v. Mahoning Natl. Bank, supra, and Sinton v. Butler [ 40 Ohio St. 158] ."
It may be observed that nowhere in the agreement with respect to occupancy of the premises in the instant case did defendant agree to make repairs. Furthermore, there is no allegation in the petition nor was anything said in the opening statement to justify an inference that plaintiff's parents had requested or been refused permission to repair the steps upon which the plaintiff fell. See Ryan v. Boston Housing Authority, 322 Mass. 299, 77 N.E.2d 399.
Appellants rely upon Stackhouse v. Close, 83 Ohio St. 339, 94 N.E. 746. In that case, the landlord participated in and directed and supervised the alteration of the part of the premises claimed to be defective. That case was recently considered by this court in Witherspoon v. Haft, 157 Ohio St. 474,
106 N.E.2d 296, and Brown v. Cleveland Baseball Co., supra. In the Haft case, the defendant had actually erected the dangerous portion of the premises at a time so close to the injury of the plaintiff caused by that dangerous portion that the occupier of the premises had not had a reasonable opportunity to learn of the potential danger. Unlike in Stackhouse v. Close, supra, and in Witherspoon v. Haft, supra, the defendant in the instant case did not do anything with respect to the part of the premises which was responsible for the injuries for which recovery is sought. Furthermore, in the instant case, plaintiff's parents, the lessees, admittedly knew all about the defective condition of these steps for some time before plaintiff's injuries. See Witherspoon v. Haft, supra, 485. The Brown case involved an instance where, unlike in the instant case, the party, claiming to be lessor, had retained and exercised the power and right to admit individuals to and exclude them from the premises.
The steps on which plaintiff fell in the instant case led only to the dwelling occupied by plaintiff's family. Notwithstanding the fact that the steps rested upon ground in the possession and control of defendant, they constituted a part of the premises in the occupation and control of plaintiff's parents. Cooper v. Roose, supra, 318, 319.
Appellants refer to certain sections of the statutes, providing for organization of a public housing authority and especially Sections 1078-30, 1078-34 and 1078-42, General Code, as indicating that one of the purposes of providing for such a housing authority is to provide "safe * * * accommodations to families of low income." The argument is that these statutory provisions indicate an intention of the General Assembly to impose liability on such authorities for negligence in failing to provide safe accommodations. We believe that no such inference of a legislative intention is justified. If the General Assembly had intended to impose upon the taxpayers a greater burden, in providing for the housing accommodations leased to families of low income, than that imposed generally on landlords, in addition to the burden of providing such low rental accommodations partly at public expense, that intention would have been clearly expressed.
Judgments affirmed.
WEYGANDT, C.J., MATTHIAS, HART and ZIMMERMAN, JJ., concur.
MIDDLETON, J., dissents.
STEWART, J., not participating.