Beall v. Everson

¶1Appellant, owner of an apartment house, sought to recover possession of an apartment which had been leased to appellee. The basis of the action was an alleged violation of a covenant in the lease not to “sublet the said premises or assign this lease in whole or in part without the consent in writing of said lessor.”

¶2No evidence was taken at the trial but it was stipulated that at various times appellee had rented a part of her apartment to roomers by whom she was paid a consideration. Appellant contended this constituted a violation of the covenant against subletting. Ap-pellee, claiming no written consent of the lessor, contended that the taking of roomers was not a subletting.

¶3The record does not disclose the details of the arrangement between appellee and those who occupied rooms in her apartment, and, in view of the stipulation, we accept their status of “roomers” in the usual and ordinary meaning of that term.

¶4 The distinction between a roomer (or lodger) and a tenant is well settled. A tenant is a purchaser of an estate,1 entitled to exclusive legal possession; but a roomer has merely a right to the use of the premises.2 The distinction was pointed out in Coggins v. Gregorio, 10 Cir., 97 F.2d 948, 950, where the court said:

“To constitute the relation of landlord *42and tenant these elements must be present: Permission or consent on the part of the landlord, subordination to the landlord’s title and rights on the part of the tenant, a reversion in the landlord, an estate in the tenant, and the transfer of possession and control of the premises to the tenant under a contract either express or implied between the parties.

“ … The principal distinction between the two relations is that the tenant acquires an interest in the real estate and has the exclusive possession of the leased premises, while the lodger acquires no estate and has merely the use without the actual or exclusive possession.”

¶5Since a roomer is not a tenant, it has been generally held that the taking of roomers or lodgers is not a violation of a covenant against subletting.3

¶6Appellant argues that since the Emergency Rent Control Act4 provides that the term “tenant” includes a “subtenant, lessee, sublessee, or other person entitled to the use or occupancy of any housing accommodations,” a roomer must be considered a tenant. But the definitions of the Act are expressly limited to “as used in this Act.” Such definitions are controlling for the purposes of the Act but they do not purport to make that .a subletting which was not a subletting prior to passage of the Act.

¶7The judgment below, holding appellant failed to establish- a violation of the lease, is correct.

¶8Affirmed.