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Howard v. Edgren

September 5, 1963

EULINE B. HOWARD, INDIVIDUALLY AND AS EXECUTRIX, APPELLANT
v.
C. A. EDGREN ET AL., RESPONDENTS



Appeal from a judgment of the Superior Court for Lincoln County, No. 12480, Richard J. Ennis, J., entered March 5, 1962.

Finley, J., concurring in the result.

Author: Per Curiam

[1] This opinion but states the obvious. Persons who take possession of real property (the property in question happened to be a store building) without the consent of the owner are to be deemed tenants by sufferance, and will be required to pay reasonable rent for the actual time they occupy the premises. RCW 59.04.050.*fn1

[2] A mortgagor does not lose his right to the possession of mortgaged real property by failing to make payments on the mortgage, or by moving out of the community; Norlin v. Montgomery (1961), 59 Wash. 2d 268, 367 P.2d 621. The right to possession is not lost by abandonment. Northern P. R. Co. v. Tacoma Junk Co. (1926), 138 Wash. 1, 5, 244 P. 117, 119; Cameron v. Bustard (1922), 119 Wash. 266, 205 P. 385.

Nor does the mortgagee have any right to possession of mortgaged real property without a "foreclosure and sale according to law." RCW 7.28.230.*fn2 See also Norlin v. Montgomery, supra.

The defendants in this case, a mortgagee and his contract purchasers (contract price $2,500), admittedly took possession of the mortgaged property without the consent of the absentee owner; and the contract purchasers, at the time this action was commenced, had conducted their business therein (Sprague Implement Company) for 19 months.

The plaintiff, the owner of the property, was entitled under the statute (RCW 59.04.050*fn3) to "reasonable rent" for that 19-month period.

[3] The trial court erred in concluding that a nominal rental of one dollar a month satisfied the requirements of the statute. The trial court was misled by the defendants' arguments into a consideration of whether the plaintiff could have procured a tenant and how much she would have received from the property if the defendants had not occupied it. From the time the defendants took possession of her property, she did have a tenant who conducted a business on her property. Under such circumstances she was entitled to a reasonable rental for the use of her property. The contentions of the defendants here are completely answered by a California court in a recent opinion, Don v. Trojan Constr. Co. (1960), 178 Cal. App. (2d) 135, 138, 2 Cal. Rptr. 626:

"The argument made by respondents throughout the trial was that the owners had lost nothing because they did not intend to rent the land out anyway. If this subject were open to be debated upon, it could be pointed out that if only nominal damages are awarded, the appropriators of the use of land could gain a virtually expense free use of property for profitable purposes on the single condition that the owner did not presently intend to lease the land or to use it himself. However, the Civil Code in section 3334 has fixed the measure of damages, and has made no exception in cases where the plaintiff did not intend to use the land or to rent it out so that the court can do no other than apply that measure, namely, the 'value of the use.' That the owners did not intend to make any use of the land themselves does not deprive them of their proper award. (United States v. Bernard, 202 F. 728 [121 C.C.A. 190]; Whitwham v. Westminster Brymbo Coal & Coke Co. (1896), 2 Ch. 538; Bourdieu v. Seaboard Oil Corp., 48 Cal. App. 2d 429, 438 [119 P.2d 973].)"

[4] There was evidence that after the contract purchasers went into possession of the property in November, 1959, they expended about $5,000 in repairs and improvements; and it is conceded that this added to the rental value of the property. It is argued that liability for rent is fixed by the reasonable rent at the beginning of the tenancy.

The statute does not so provide; the liability is for "reasonable rent for the actual time he occupied the premises." See generally 1 American Law of Property, Sec. 3.36 (1952); 32 A.L.R. (2d) 582. This would include any increase in the value of the use and occupancy attributable to improvements and repairs made to the ...


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