Opinion
No. 27816.
May 16, 1950.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, EDWARD M. RUDDY, J.
John B. Edwards, St. Louis, A. Courtney Davis, St. Louis, for appellants.
Emanuel Williams, St. Louis, for respondents.
This is a suit in unlawful detainer wherein plaintiffs, the landlords, seek to obtain possession of a flat known as 4606 McMillan Avenue, in the City of St. Louis, for the immediate purpose of substantially altering and remodeling the same so as to convert said flat into two apartments. The prayer of the petition was for restitution of the premises, $300 damages, and the value of monthly rents. The trial resulted in a verdict for plaintiffs, whereupon judgment was entered for plaintiffs for restitution of the premises, $325 as and for rents and profits to date of entry of judgment, and $32.50 per month as and for rents and profits from April 12, 1949, until restitution should be made. From this judgment defendants have appealed.
Plaintiffs based their right to recover on Section 209(a) (4) of the Housing and Rent Act of 1948, 62 Stat. 99, 50 U.S.C.A. Appendix, § 1899. Said section provides that a landlord may recover possession when: "(4) the landlord seeks in good faith to recover possession of such housing accommodations (A) for the immediate purpose of substantially altering or remodeling the same for continued use as housing accommodations, or for the immediate purpose of conversion into additional housing accommodations, and the altering, remodeling, or conversion cannot practically be done with the tenant in occupancy, and the landlord has obtained such approval as may be required by Federal, State, or local law for the alterations, remodeling, or any conversion planned, or (B) for the immediate purpose of demolishing such housing accommodations."
Appellants contend that the trial court should have sustained their motion for a directed verdict, because: (1) under the evidence it appears as a matter of law that the altering and remodeling contemplated by plaintiffs can practically be done with the tenants in occupancy; and (2) the evidence shows that plaintiffs failed to obtain a permit to make said alterations, as required by local law. We will review the evidence touching on these issues.
The flat in question consists of six rooms with a hallway and bath. Plaintiffs became the owners of the premises in November, 1944, and defendants became monthly tenants of the property in July, 1945, at a monthly rental of $32.50.
Plaintiff Abram McClenney testified that he was seeking possession of the property in order to convert it into a two-family flat. He stated that he had entered into a written contract with Mr. A. J. Johnson, a contractor, to do this work.
Mr. McClenney further testified that Mr. Steele, an architect, had made a drawing of the proposed changes, which consisted of putting in an extra bathroom. He further stated that no other structural changes, except the erection of the bathroom walls, were contemplated. He further testified that he intended to remove the wallpaper throughout the flat by the use of steam, paint the floors, and install a kitchen. After the alterations there would be two apartments of three rooms each which he contemplated renting for $12 per week. The changes would also necessitate alteration in the electric wiring, and the installation of another electric meter. Plaintiff further testified that the alterations could not possibly be done with the tenant in possession.
Mr. A. J. Johnson, the contractor, stated that the work could not be done with tenants in the premises. He stated that the plastering was bad and that a great deal of it would have to be removed. He stated: "And we are going to have to steam the paper off and I would suggest that people not live in there while the plumbing and plastering and the papering is done.
* * * * * *
"Q. Would you say it is impractical to make the alterations with people living there? A. Any house, you are going in there and you are to steam off and you have to knock plaster down, it isn't best, if you are going to make complete renovations."
Johnson further testified that he talked to the City Building Inspector and presented a sketch of the proposed alterations, and stated: "I knew it would be acceptable to the city at such time as the work was ready to go. * * * Any work that you are going to have done from the standpoint of repairs, you take in a sketch of what you propose to do to find out whether or not it will be acceptable. There is no need of drawing up a blueprint before you find out whether what you propose will be acceptable. Then you get a sketch and take it in and then, if the owner decides to go on with the work, you take it into the city and get a permit.
"Q. Have there been any blueprints drawn on this particular job? A. No, they have not.
"Q. Have any blueprints been presented to the City Commissioner? A. No, sir.
"Q. Nothing but the sketch. Has any permit been granted by the City Commissioner — Building Inspector, for doing this work? A. No."
It is our opinion that, under the evidence adduced, the court properly submitted to the jury the issue as to whether the altering, remodeling and conversion of the premises could be practically done with the tenant in occupancy.
The altering, remodeling and repairs proposed by plaintiffs are of a substantial nature and a jury might reasonably find that it could not be done with the tenant in occupancy. Defendants' willingness to remain in the premises is not the sole consideration in determining this question. The rule to be applied is stated in Burns v. Wallace, 191 Misc. 451, 78 N.Y.S.2d 99, loc. cit. 101-102, as follows: "It is true that the respondent has stated in his testimony that he is willing to occupy during such altering and remodeling, but that willingness cannot alter the facts produced in testimony by the landlord, nor the conclusions logically to be drawn therefrom. The subject matter must be approached not only from the point of view of the tenant, but also from the point of view of the petitioner and contractor doing the work. The tenant must also be protected against his own improvidence in subjecting himself to a situation which would render his occupancy impracticable, notwithstanding his current willingness to occupy."
However, in the case at bar, it appears from the evidence that plaintiffs failed to secure a permit from the local authorities authorizing the alterations in question. Section 209(a) (4), supra, in express terms requires as a condition precedent to recovery of possession that the landlord shall obtain "such approval as may be required by Federal, State, or local law for the alterations, remodeling, or any conversion planned." Johnson, the contractor, testified positively that no building permit had been obtained from the city for the doing of this work.
The Supreme Court of Minnesota had this same question before it in Barker v. Sharp, 38 N.W.2d 221, loc. cit. 223, and, in disposing of the case, said:
"Plaintiff also testified that he wanted possession of the premises for the purpose of repair and alterations, but, although his testimony shows that he consulted two contractors in this regard, he has not obtained a permit from the city to make any repairs or alterations, and there is no evidence that he has applied for such permit. Under the Housing and Rent Act, obtaining the approval required by federal, state, or local law for alterations or improvements is a necessary prerequisite to obtaining an eviction order on that ground. 50 U.S.C.A. Appendix, § 1899(a) (4).
"To sustain his burden of proving an unlawful detention, plaintiff must first show that he has complied with the federal statute concerning actions or proceedings to recover possession of controlled housing accommodations. The evidence is sufficient to show that plaintiff has not done this."
In the case at bar plaintiffs' contractor merely had an informal talk with the building inspector, and from that talk concluded that the contemplated alterations would be acceptable to the city. This is not a compliance with the requirements of the Federal statute. For that reason, the judgment appealed from will have to be reversed. It is so ordered.
HUGHES and McCULLEN, JJ., concur.