WASHINGTON INS. AGENCY, INC. v. FRIEDLANDER, 487 A.2d 599 (D.C. 1985)

Nos. 84-670, 84-827.District of Columbia Court of Appeals.Argued December 11, 1984.
Decided January 31, 1985.

Appeal from the Superior Court of District of Columbia, Tim Murphy, J.

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Maurice A. Guervitz, Washington, D.C., for appellant.

Robin D. Kardon, Washington, D.C., with whom Morris Kletzkin, Washington, D.C., was on brief, for appellees.

Before MACK, FERREN and ROGERS, Associate Judges.

FERREN, Associate Judge:

Appellant Washington Insurance Agency, Inc. (WIA), a commercial tenant under a five-year lease, vacated the premises after three and a half years. One of the owners brought suit. The trial court granted his motion for summary judgment and awarded damages against WIA for unpaid rent, interest, and costs. On appeal, WIA argues that the lease was not enforceable because only one of the three owners had signed the lease; accordingly, WIA was entitled to abandon the premises without liability for rent during the period before the owners found a new tenant. We disagree and thus affirm.

I.
In April 1979, Gustave Ring entered into a five-year lease with WIA for suit # 206 at 1200 18th Street, N.W., known as the Ring Building. Gustave Ring, Marion Ring, and Carlyn Ring owned the property as tenants in common. Gustave Ring signed the lease as “Gustave Ring, AGENT.” Marion and Carlyn Ring did not sign.[1]

On August 16, 1982, WIA informed Gustave Ring that it intended to move and requested relief from the lease obligation. Gustave Ring agreed, provided that WIA locate a suitable subtenant to complete the lease term. In October 1982, WIA quit the premises, without having found a subtenant, and stopped paying rent.

In March 1983, Gustave Ring filed suit against WIA for “the rent due and owing.” Shortly thereafter, Gustave Ring died. The court granted a motion for substitution of parties: Jack L. Friedlander, as executor of the estates of Gustave Ring and Marion L. Ring, and Carlyn Ring. After completion of discovery, plaintiffs filed a motion for summary judgment, which the court granted on April 18, 1984. Two weeks later, on May 3, 1984, the court entered a judgment against WIA for $13,768.95 plus interest and costs.[2] WIA now appeals both orders.

II.
WIA contends that the trial court erred as a matter of law in granting summary judgment because the parties had not entered into a valid five-year lease. More specifically, WIA cites two statutes that appear to preclude anyone but the lessor from conveying an interest in real property for a period that exceeds one year. D.C. Code § 45-306 (1981) provides:

No estate . . . for a longer term than 1 year, in any real property . . . shall be created . . . except by deed signed and sealed by the . . . lessor. . . .

D.C. Code § 45-601 (1981) provides:

No deeds of conveyance of either real or personal estate by individuals shall be executed or acknowledged by attorney.

WIA next points out that two of the supposed lessors, Marion and Carlyn Ring, did not personally sign the lease; “Gustave Ring, AGENT” purportedly signed for all three common owners See supra note 1. Then, citing Paul v. Holloway, 124 A.2d 587
(D.C. 1956), WIA stresses that § 45-601 proscribes the execution of a lease by an “agent” as well as by an “attorney.” Accordingly, argues WIA, the lease was invalid “as to a five year term” because the signatures of all three owners were required;

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Marion and Carlyn Ring did not sign, and Gustave Ring could not lawfully sign on behalf of all three. It follows, says WIA, that the parties had “created merely a month-to-month tenancy after the first year of said agreement,” requiring only one month’s notice to vacate.

We disagree with WIA’s analysis because it proceeds from a false premise: that all tenants in common must execute a lease to convey an interest in the entire premises. As we elaborate below, one such owner may do so.

Gustave Ring signed the lease, with respect to any interest he could convey, as an owner-lessor, not merely as an agent.[3] It is true that Gustave Ring could not bind the interests of his co-owners, even though they authorized him to sign as their agent. D.C. Code § 45-601; Paul, 124 A.2d at 589 Velati v. Dante, 39 App.D.C. 372, 375-76 (1912), cert. denied, 227 U.S. 679, 33 S.Ct. 462, 57 L.Ed. 700 (1913). But it does not necessarily follow that the lease was invalid as to WIA.[4]

It is well established that a lease signed by one cotenant-lessor is not invalid, as to the lessee, for failure of the other cotenants to sign as colessors. Thalis v. Wurdeman, 73 App.D.C. 322, 323, 121 F.2d 70, 71 (1941) Colorado Fuel Iron Co. v. Pryor, 25 Colo. 540, 543-548, 57 P. 51, 52-53 (1898); Bain v. Roma Financial, Inc., 362 So.2d 1027, 1028 (Fla.Dist.Ct.App. 1978); Simkin v. New York Central Railroad Co., 138 Ind. App. 668, 671-672, 214 N.E.2d 661, 663
(1966). ” ‘Subject to the rights of his cotenants, a cotenant of real property may use and enjoy the common estate in the same manner as though he were the sole proprietor.’ ” Simkin, 138 Ind. App. at 672, 214 N.E.2d at 663 (citation omitted). Thus, a cotenant, who possesses an undivided interest, may rent out the entire property (subject to the interests of the nonleasing cotenants), and the lessee who takes possession will be fully liable on the covenant for rent. Harms v. McCormick, 132 Ill. 104, 22 N.E. 511 (1889); 86 C.J.S. Tenancy in Common § 113, at 522 (1954). Accord In re Knox’ Estate, 52 Cal.App.2d 338, 126 P.2d 108, 115 (1942).[5]

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In sum, as a cotenant-owner of the Ring Building, Gustave Ring could effectively convey his undivided interest in suite # 206 to WIA for a term of years. See D.C. Code § 45-306 (1981). WIA accordingly, had the right to occupy, and was obliged to pay rent for, the entire premises — subject to Marion and Carlyn Ring’s interests as nonleasing cotenants. See Thalis, 73 App.D.C. at 323, 121 F.2d at 71.[6]

WIA, in effect, has tried to invoke the rights of nonleasing cotenants — rights which a leasing cotenant cannot bind — to avoid its own obligations as a lessee. It is true that nonleasing cotenants may have a remedy against a leasing cotenant who receives more than a fair share of the rental income.[7] Moreover, nonleasing cotenants may have possessory rights in common with the lessee.[8] But the lessee itself, having enjoyed the right to use the property, may not avoid its obligations to the leasing cotenant merely because fewer than all the cotenants have executed the lease.

III.
WIA also argues that the court erred as a matter of law in granting appellees’ proposed order for a money judgment without affording WIA a separate hearing or at least an opportunity to file an opposition. We disagree.

The trial court granted the motion for summary judgment without specifying an award of damages. Shortly thereafter, appellees’ counsel wrote to the court, requesting an order for a money judgment of $13,768.95 plus interest and costs.[9] The court issued this order the next day. Five days later, WIA’s counsel wrote to the court opposing appellees’ request.[10]

Contrary to WIA’s argument, the trial court was not required to hold a second hearing or otherwise entertain WIA’s opposition to the claimed judgment. The complaint had sought an easily computable money judgment, and WIA had had an adequate opportunity to contest the claimed amount of unpaid rent before summary judgment had been granted. See supra note 9. WIA’s request to oppose the

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damages calculation came too late.[11] We conclude that the court properly granted appellees’ demand.

Affirmed.