The opinion of the court was delivered by: DUSEN
This is an action for charges of rent for the period September 7, 1948, to July 6, 1951, in excess of that permitted by an order issued by the Area Rent Director on July 17, 1951, effective as of July 1, 1948, covering the second floor rear of premises 1242 North 57th Street, Philadelphia.
The defendant has lived at 1242 North 57th Street since 1925 and has owned the property since prior to January 1, 1945. From February 1, 1945, until October 1947, defendant did not rent any part of this property to any one but he did permit a member of his immediate family to occupy one room in the house rent free.
In October 1947, as a kindness to Matthew Robinson, defendant permitted Robinson to move his family into his house until such time as Robinson could find another place for his family. At first, Robinson was only permitted to use two back rooms on the second floor and to use the kitchen in common with defendant and his family. Robinson used defendant's furniture, as the house was fully furnished. Beginning in 1948, Robinson was allowed to gradually use more of the house, but defendant continued to make his home in this house until after Robinson finally moved out in 1951.
During the period that Robinson lived in the house, there were no other tenants, but one room was occupied for a time by defendant's relations rent free. Although Robinson admitted he was looking for another place to move his family, he never found another home until 1951. Disputes developed as to how much compensation Robinson should pay for these furnished lodgings. Finally, Robinson went to the Rent Control Authorities in 1951 and secured the order (Exhibit A attached to the complaint) which is the basis of this suit.
Section 202(c)(3)(B) of the Housing and Rent Control Act, as amended by the 1948 Act, 50 U.S.C.A.Appendix, § 1892(c)(3)(B), provides as follows:
'(c) The term 'controlled housing accommodations' means housing accommodations in any defense rental area, except that it does not include * * *
'(3) any housing accommodations * * *
'(B) which for any successive twenty-four month period during the period February 1, 1945, to the date of enactment of the Housing and Rent Act of 1948, both dates inclusive, were not rented (other than to members of the immediate family of the landlord) as housing accommodations.' 62 Stat. 93.
The date of enactment of the 1948 Act is March 30, 1948. It is clear that the defendant lived in the house as his home from February 1, 1945, to February 1, 1947, and only one possible renter could have lived in one room of the house during this period.
Title 24, Chapter VIII, Part 825, of the Regulations issued by the Office of the Housing Expediter under the Housing and Rent Act, as amended, concerns the decontrol of housing under Section 202 and Part VI, paragraph 3, contains this language (13 Fed.Reg. 5002):
'Where only part of a house was rented during the two-year period and the portion that was rented constituted less than a predominant part of the entire house (predominance being determined on a space basis), the portion that was rented is not decontrolled. However, if the entire house is subsequently rented, as one unit, it is decontrolled and likewise the rental of any portion of the house which was not rented during the two-year period is also decontrolled.'
This regulation should be followed in this case for the reasons stated in Crump v. McLennan, D.C.N.D.Cal.1950, 90 F.Supp. 115, 118-119.
Even if the one room which was occupied by a person other than defendant during this period was not a member of his immediate family and did not pay rent (see Footnote 1), it is clear that this one room was not a predominant part of the house on a space basis. It is also clear that the part of the house rented to Robinson was not rented during the two-year period from February 1, 1945, to February 1, 1947.
For the reasons stated above, it would normally appear that the Housing and Rent Authorities had no jurisdiction to enter the order of July 17, 1951, because those authorities had no jurisdiction to take action in connection with a property such as this which did not constitute 'controlled housing accommodations.' It has been consistently recognized that any order entered by a tribunal which does not have jurisdiction over the ...