Velicky v. The CopyCat Building LLC

Anna Velicky v. The Copycat Building LLC, No. 1, September Term, 2021; Christopher
Walke v. The Copycat Building LLC, No. 2, September Term, 2021, Opinion by Booth, J.
LANDLORD-TENANT—UNLICENSED LANDLORD—ABILITY TO SEEK
POSSESSION OF PROPERTY—TENANT HOLDING OVER. The Court of Appeals
declined to foreclose an unlicensed landlord’s right to seek repossession of the landlord’s
property at the expiration of a tenancy under the tenant holding over statute, Maryland
Code (1974, 2015 Repl. Vol., 2021 Supp.), Real Property Article (“RP”) § 8-402. The
Court determined that there is no reason to judicially alter the balance between a property
owner’s right to repossess his or her property after the expiration of a tenancy and a tenant’s
right to safe and habitable living conditions during a residential tenancy. That balance has
been struck by the Legislature through its enactment of a comprehensive statutory
framework that governs landlord and tenant relationships, including its modifications to
the common law ejectment action and the remedies afforded to tenants to ensure safe and
habitable housing. Under these circumstances, the Court will not preclude the availability
of a statutory remedy enabling a landlord to seek repossession of the landlord’s property
interest at the conclusion of the tenancy. Such a holding would unreasonably interfere with
property rights.
APPEAL OF DISTRICT COURT JUDGMENT—AMOUNT IN CONTROVERSY.
When the appeal from a District Court judgment involves only a claim for repossession of
property with no money judgment, the value of the right to repossession must be considered
in deciding whether the appeal should have been on the record or de novo under Maryland
Code (1974, 2020 Repl. Vol., 2021 Supp.), Courts and Judicial Proceedings Article (“CJ”)
§ 12-401(f).
Circuit Court for Baltimore City
Case No.: 24-C-20-004248
IN THE COURT OF APPEALS
Circuit Court for Baltimore City
Case No.: 24-C-20-004247
OF MARYLAND
Argued: September 14, 2021
Nos. 1 & 2
September Term, 2021
ANNA VELICKY
v.
THE COPYCAT BUILDING LLC
CHRISTOPHER WALKE
v.
THE COPYCAT BUILDING LLC
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Booth, J.
McDonald and Watts, JJ., dissent.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-12-02 13:11-05:00
Filed: November 29, 2021
Suzanne C. Johnson, Clerk
In the instant cases, we are being asked to judicially foreclose a landlord’s right to
use a statutory remedy provided by the Legislature to seek the return of the landlord’s
possessory interest in real property at the expiration of a residential tenancy where the
landlord does not have a current rental license.
The Appellee, Copycat Building, LLC (“Copycat”) is a property owner who does
not have a current rental license, which is required under the Baltimore City Code of Public
Laws, to provide residential rental housing. The Appellants, Anna Velicky and Christopher
Walke, reside in Copycat’s building as month-to-month tenants. After Copycat provided
the Appellants with a 60-day written notice to quit, and the Appellants refused to vacate
the premises, Copycat filed tenant holding over actions in the District Court sitting in
Baltimore City pursuant to Maryland Code (1974, 2015 Repl. Vol., 2021 Supp.), Real
Property Article (“RP”) § 8-402 (the “tenant holding over statute”). In both instances, after
an appeal, the Circuit Court for Baltimore City determined that Copycat met the requisite
statutory elements under the tenant holding over statute and ordered that possession of the
property be returned to Copycat.
The Appellants each filed a petition for writ of certiorari asking this Court to hold,
based on principles of public policy, that the tenant holding over statute is unavailable to
an unlicensed landlord seeking a writ of possession of the landlord’s property after the
expiration of a tenancy. For the reasons set forth herein, we decline to adopt such a holding
as we determine that the Legislature, through its enactment of a comprehensive statutory
framework governing residential landlord and tenant relations, has achieved the balance
between a landlord’s right to recover the landlord’s property interest at the conclusion of a
tenancy and a tenant’s right to safe and habitable housing conditions during the tenancy.
We explain the reasons for our decision herein.
I
Factual Background and Procedural History
Under the applicable provisions of the Baltimore City Code, a person may not rent
or offer to rent a residential dwelling unit1 without a rental license issued by the Baltimore
City Housing Commissioner. Baltimore City Code (“BCC”) Art. 13, § 5-4. The code
provisions also prohibit a landlord from charging, keeping, retaining, or collecting rent
payments unless the landlord has a rental license. Id. Rental licenses issued under the
BCC are for a term of 1-year, 2-years, or 3-years, depending on certain “risk factors”
outlined in the Code. BCC Art. 13, § 5-9. As a prerequisite to the issuance of an initial
license or a renewal license, the unit must pass an inspection that certifies compliance with
various housing codes. BCC Art. 13, § 5-7. Violators of the rental license law may be
subject to criminal and civil penalties, including a daily fine of $1,000.00 for every day
that the violation continues. BCC Art. 13, §§ 5-25, 5-26.
Copycat owns 1501 Guilford Avenue in Baltimore, which is improved with a large
industrial warehouse building that was originally constructed in 1897 (the “Copycat
Building” or “Building”). Considered a landmark in the Baltimore arts community, the
industrial warehouse was converted into residential artist lofts that are rented to artists and
1
The Baltimore City Code (“BCC”) Article 13, § 5-1(g) defines “rental dwelling”
as: “(1) any multiple-family dwelling; (2) any rooming house; and (3) any non-owner-
occupied dwelling unit in a 1- or 2-family dwelling that is leased or rented or offered or
available for lease or rental in exchange for any form of consideration.”
2
musicians in the city’s Station North Arts and Entertainment District.2 The instant cases
concern the month-to-month tenancies of two tenants, Anna Velicky and Christopher
Walke, who occupy rental units in the Copycat Building.
The Copycat Building and property are owned by Copycat Building LLC, a
Maryland limited liability company. The sole member of the company is Charles A.
Lankford, who owned the property prior to conveying it to the limited liability company in
July 2018. Prior to the change in ownership from Lankford to the single member LLC,
and at the time when Appellants commenced their respective tenancies, the Building had a
rental license. According to Copycat, the conveyance of the property from Lankford to
Copycat triggered the loss of the rental license issued by Baltimore City.
On December 5, 2019, the Baltimore City Department of Housing and Community
Development (“Department”) issued Copycat two citations and associated fines—a citation
and $100.00 fine for failing to complete an annual registration statement for the property,
and a citation and $1,000.00 fine for failing to obtain a rental license from the Department.
2
The Copycat Building’s history extends back to the 1890’s, when it was part of a
factory complex for Baltimore’s Crown, Cork & Seal Company, which produced bottle caps
and bottling machines. The six-floor Victorian style building was converted to residential
housing for artists and musicians in which the “[r]esidents are free to design their loft spaces
as they choose. In any given room you might find a skate ramp, a band rehearsing, a photo
studio, a sculpture in progress.” Peek Inside The Copy Cat Building: Where Baltimore
Artists Work — And Live: The Picture Show: NPR. https://perma.cc/2XTU-L2E3.
According to the citations issued by Baltimore City, the Copycat building is improved with
“58+ dwelling units[.]”
3
According to Copycat, since it learned of the lapse in its rental license at the end of 2019, it
has been trying to renew the license.3 The Property is current on its property registration.4
A. Walke Tenancy in the Copycat Building and Copycat’s Holding Over Suit
Appellant, Christopher Walke (“Walke”), moved into the Copycat Building in
February 2017 pursuant to the terms of a written lease. On or around March 6, 2019, Walke
moved into a different apartment in the Building. In connection with this internal move,
Walke requested to live in the apartment on a month-to-month basis. When Walke changed
units, Copycat did not offer Walke a written lease. Accordingly, under state law, because
there was no written agreement (notwithstanding Walke’s request for a month-to-month
tenancy), the term of Walke’s tenancy was presumed to be one-year from the date of first
occupancy—through March 5, 2020.5
3
At the circuit court trial in the Walke case, counsel for Copycat told the court
that Copycat had made “good faith attempts” to secure the rental license for the multi -
unit building, but that, in order to obtain the license, it was necessary to repossess some
of the units to remove lofts and associated structures that had been constructed over “20
plus years” by tenants in individual units, the removal of which required “heavy
construction.”
4
It appears from the applicable provisions of the BCC (as well as Copycat’s former
rental licenses that have now lapsed), that the City issues one rental license for a multi-unit
structure that covers all units in the building. See BCC Art. 13, § 5-6 (stating that “a rental
dwelling license may be issued or renewed” “only if,” among other requirements, “all
dwelling units and rooming units are currently registered” and “the premises have passed
an inspection”). (Emphasis added) (capitalization omitted).
5
State law requires that a landlord offering five or more dwelling units for rent use
a written lease. Md. Code Real Property Article (“RP”) § 8-208(a)(1). If a landlord fails
to comply with the written lease requirement in subsection (a)(1), the penalty is that “the
term of the tenancy is presumed to be 1 year from the date of the tenant’s first occupancy
unless the tenant elects to end the tenancy at an earlier date by giving 1 month’s written
notice.” RP § 8-208(a)(2).
4
On May 24, 2020, Copycat sent Walke written notice of termination of his month-
to-month tenancy and a 60-day notice to vacate his apartment on or before August 1,
2020. Walke did not vacate the apartment by August 1. When Walke did not vacate the
apartment by that date, Copycat filed a Complaint for Tenant Holding Over in the District
Court pursuant to RP § 8-402 seeking to regain possession of the apartment.
Prior to trial, Walke filed a motion to dismiss the complaint based upon Copycat’s
lack of licensure. The District Court denied Walke’s motion, and the case proceeded to
trial. The District Court declined to enter judgment for possession of the apartment,
finding that, without a written lease, Copycat failed to satisfy its burden of proving under
RP § 8-402 that the lease had expired.
On October 1, 2020, Copycat filed an appeal with the Circuit Court for Baltimore
City. Prior to trial, Walke filed a motion to set an on-the-record appeal, contending that
the appeal to the circuit court should be on the record, as opposed to a de novo
proceeding. Walke also filed a motion to dismiss the complaint based upon Copycat’s
failure to have a rental license. 6 Both motions were denied by the circuit court. On
December 2, 2020, the circuit court held a de novo hearing and granted judgment for
possession to Copycat.
6
During the trials in the circuit court and the District Court, Walke never alleged
that the unit was unsafe or uninhabitable.
5
Walke filed a petition for writ of certiorari, which this Court granted on March 5,
2021. The petition requested that we answer the following question, which we have
rephrased as follows:7
Whether a landlord who does not have a current rental license may seek
repossession of the landlord’s property pursuant to the tenant holding over
statute, Maryland Code, Real Property Article § 8-402, at the expiration of the
tenancy?
As we explain infra, we decline to adopt the holding requested by the Appellants that would
preclude the availability of the statutory remedy under these circumstances.
B. Velicky’s Tenancy in the Copycat Building and Copycat’s Holding Over Suit
Appellant, Anna Velicky (“Velicky”) moved into an apartment in the Copycat
Building in December 2015, where Velicky lived with five other co-tenants. Velicky
7
Walke’s petition for writ of certiorari requested that we answer the following
question:
Whether an unlicensed landlord leasing rental properties in a jurisdiction
requiring licensure is allowed to judicially enforce its unlicensed activities in
Maryland Courts?
(Capitalization omitted).
In Walke’s brief, Walke has attempted to raise an additional question for our review
concerning whether the circuit court erred in setting an appeal bond of $9,000.00 based upon
the rental value of the premises in a tenant holding over action. This question was not
presented in the petition for writ of certiorari. It is well-settled that this Court ordinarily
does not consider an issue not raised in a petition for writ of certiorari. Saint Luke Institute,
Inc. v. Jones, 471 Md. 312 n.8 (2020); see also Maryland Rule 8-131(b). In the rare
circumstances where we address an issue not raised in the petition for writ of certiorari, it is
“generally because the issue is implicitly contained within the question on which we granted
certiorari.” Id. (internal quotations and citation omitted). We determine that Walke’s
additional question does not fall within the exception to the general rule, and we decline to
consider it.
6
executed a written lease for the apartment on August 1, 2017. Under the terms of the
written lease, the lease term expired on July 31, 2018. Thereafter, Velicky became a
month-to-month tenant.
On April 30, 2020, Copycat sent Velicky written notice of termination of Velicky’s
month-to-month tenancy and a 60-day notice to vacate the apartment on or before July 1,
2020. After Velicky did not vacate the apartment, on August 6, 2020, Copycat filed a
Complaint for Tenant Holding Over in the District Court pursuant to RP § 8-402 seeking
to regain possession of the apartment.
On September 22, 2020, the District Court held a hearing on Copycat’s tenant
holding over complaint. Prior to trial, Velicky filed a motion to dismiss based upon
Copycat’s lack of licensure.8 Velicky argued that under this Court’s decision in
McDaniel v. Baranowski, 419 Md. 560 (2019), Copycat could not utilize the courts to
obtain possession of its property because it did not have a rental license. The court denied
Velicky’s motion, concluding that McDaniel did not involve a tenant holding over
proceeding and had no application to the case before it. After proceeding with the trial,
the District Court entered judgment in favor of Velicky, finding that Copycat failed to
satisfy its burden of proving under RP § 8-402 that the lease had expired.
On October 1, 2020, Copycat filed an appeal with the Circuit Court for Baltimore
City. Prior to trial, Velicky filed a motion to set an on-the-record appeal, contending that
the appeal to the circuit court should be on the record, as opposed to a de novo proceeding.
8
Like Appellant Walke, Velicky never alleged in either the District Court or the
circuit court that Velicky’s unit was unsafe or uninhabitable.
7
Velicky also filed a motion to dismiss the complaint based upon Copycat’s failure to have
a rental license. Both motions were denied by the circuit court. On December 5, 2020, the
circuit court held a de novo hearing and granted judgment for possession to Copycat. The
circuit court found that: (1) there was a landlord-tenant relationship; (2) Velicky was
residing in the apartment pursuant to a month-to-month tenancy; (3) Copycat had given the
required notice to terminate the tenancy under the Baltimore City Code and RP § 8-402;
and (4) that Copycat was not retaliating against Velicky by seeking possession. The circuit
court declined to set an appeal bond and stayed judgment until the Maryland judiciary
entered Phase V of the COVID-19 Phased Reopening Plan.9
Velicky filed a petition for writ of certiorari, which this Court granted on March
5, 2021. In addition to raising the same question presented by Walke, Velicky asked
9
As a result of the COVID-19 pandemic, the Chief Judge of the Court of Appeals
issued administrative orders in early 2020 that postponed most court proceedings and
provided five phases for the gradual return to normal operations. The pertinent
administrative order in effect was the Amended Administrative Order on the Progressive
Resumption of Full Function of Judiciary Operations Previously Restricted Due to the
COVID-19 Emergency (June 3, 2020), available at https://perma.cc/VY5V-7JDQ. This
order was supplemented by the Fifth Administrative Order Restricting Statewide Judiciary
Operations Due to the COVID-19 Emergency, available at https://perma.cc/9R8N-4S9E,
which required courts to operate under Phase III from November 16, 2020 through
December 31, 2020. A summary of the phases and their durations can be found at
https://perma.cc/A6YD-XDYJ. On December 5, 2020, when the circuit court stayed the
judgment for possession to Copycat, the courts were operating under Phase III of the
Reopening Plan. As of April 26, 2021, all courts entered Phase V and became “fully
operational.” See Id.; see also the Second Amended Administrative Order Expanding
Statewide Judiciary Operations in Light of the COVID-19 Emergency, found at
https://perma.cc/AMM6-VACT.
8
that we address the following additional question, which we have rephrased as
follows:10
Whether the circuit court erred in conducting a de novo appeal as opposed to
an appeal on the record under Courts and Judicial Proceedings Article § 12-
401(f) where the landlord is seeking repossession of real property under the
tenant holding over statute, Maryland Code, Real Property Article, § 8-402?
As we explain below, we determine that the circuit court erred in conducting a de novo
trial in this case where the landlord was required to give 60 days’ notice to Velicky before
terminating the tenancy, and the value of the tenancy during this period exceeded the
statutory threshold of $5,000.00.
II
Standard of Review
Pursuant to Maryland Rule 8-131(c), “[w]hen an action has been tried without a
jury, the appellate court will review the case on both the law and the evidence.” We will
“not set aside the judgment of the trial court on the evidence unless clearly erroneous,”
giving “due regard” to the trial court’s opportunity to “judge the credibility of the
witnesses.” Id. A trial court’s findings are not clearly erroneous “if any competent
10
Velicky’s petition for writ of certiorari requested that we answer the following
questions:
1. Must a landlord have a rental license to evict a tenant under RP § 8-402
when local law requires a license to operate the premises as a landlord?
2. Did the circuit court err by determining that an appeal from a tenant
holding over action should be heard de novo instead of on-the-record
when the 2-month value for rent for the premises exceeded the $5,000.00
threshold for on-the-record appeals under Md. Rule 7-102(b)?
9
material evidence exists in support of the trial court’s factual findings[.]” Webb v. Nowak,
433 Md. 666, 678 (2013).
“When a trial court decides legal questions or makes legal conclusions based on its
factual findings, we review these determinations without deference to the trial court.”
Plank v. Cherneski, 469 Md. 548, 569 (2020) (citations and quotations omitted). “Where
a case involves the application of Maryland statutory and case law, our Court must
determine whether the lower court’s conclusions are legally correct under a de novo
standard of review.” Id. (citations and quotations omitted).
III
Discussion
Appellants contend that we should extend the principles articulated in McDaniel v.
Baranowski, 419 Md. 560 (2011), to tenant holding over proceedings filed under RP § 8-
402 and preclude an unlicensed landlord from utilizing the statutory remedy to seek
possession of the property upon the conclusion of a tenancy. Relying upon McDaniel and
other cases of this Court, Appellants assert that we have “consistently required contractors
and vendors to demonstrate licensure” as a condition permitting a claimant to judicially
enforce a contract that is premised upon business activities that require a license. See
McDaniel, 419 Md. 560; Harry Berenter, Inc. v. Berman (“Berenter”), 258 Md. 290(1970); Snodgrass v. Immler, 232 Md. 416 (1963); Goldsmith v. Manufacturers’ Liability
Ins. Co. of New Jersey, 132 Md. 283 (1918). Appellants urge us to apply the principles
expressed in this line of cases to hold that a landlord may not use the tenant holding over
10
statute to obtain possession of the landlord’s property after a residential tenancy has expired
unless the landlord has a current rental license.11
Copycat asserts that the rationale underlying McDaniel is not present in a tenant
holding over action—where a property owner is simply seeking to recover possession of
property upon the expiration of a tenancy. Copycat argues that the line of cases relied upon
by Appellants, which prohibit unlicensed professionals from enforcing contractual claims
for compensation or monetary payments where a license is required for the protection of the
public, are inapplicable because Copycat is not seeking to enforce a contractual obligation,
nor is it attempting to collect rent or any other money damages. Copycat asserts that if this
Court forecloses an unlicensed landlord’s right to use the tenant holding over statute, a
landlord who does not have a current rental license will have no statutory remedy available
to repossess its real property interest after the expiration of a lease.
In response to Copycat’s assertions, Appellants agree that under their proposed
outcome, an unlicensed landlord would have no statutory remedy available to enable the
recovery of possession of property after a lease has expired. To address the lack of a statutory
11
In their briefs, Appellants have included excerpts of transcripts from two unrelated
District Court cases involving other tenants in the Copycat Building who are not parties to
the instant cases. Appellants request that we take judicial notice of limited portions of the
transcripts in these unrelated cases and argue that Copycat was using the tenant holding over
statute to extract unpaid rent from these other tenants. In response, Copycat objects to the
Court’s consideration of these transcript excerpts, noting that they are not part of the record
in the instant cases, are not relevant, and that Appellants “ignore that both [tenants in the
unrelated cases] consented to the landlord’s possession of the property while also agreeing
to have the option of signing new leases in exchange for retaining possession of the
property.” We decline to take judicial notice of limited portions of transcripts of unrelated
cases involving individuals who are not parties to the instant cases.
11
remedy, Appellants assert that we should fashion a holding that would require that an
unlicensed landlord file a common law ejectment action and prove the existence of
“exceptional circumstances,” which would enable the court,12 through the application of
equitable principles, to determine on a case-by-case basis, whether the property owner should
be entitled to regain possession based upon his or her reason for not having a valid rental
license.
Although the tenant holding over statute is at the center of the parties’ dispute, we
shall start our discussion with a brief overview of the common law ejectment action since
we are being asked to judicially foreclose the statute’s availability and require that
unlicensed landlords proceed under a common law ejectment action. It is also useful to
start our analysis with the common law because property law is derived from three
sources: the common law, statutes, and the Constitution. Denise R. Johnson, Lecture,
Reflections on the Bundle of Rights, 32 Vt. L. Rev. 247, 248 (2007).
After examining the common law, we shall discuss the statutory framework
established by the General Assembly, which has effectively codified all aspects of
common law ejectment actions as they pertain to landlord-tenant relationships. As we
explain below, the General Assembly has enacted several statutes that balance a
residential tenant’s interest in safe and habitable living conditions during the tenancy, on
12
Given that the common law ejectment action would arise in connection with a
landlord and tenant relationship, the action would originate under the exclusive jurisdiction
of the District Court. See Md. Code (1974, 2020 Repl. Vol, 2021 Supp.), Courts and
Judicial Proceedings Article (“CJ”) § 4-401(4) (stating that the District Court has exclusive
jurisdiction in “[a]n action involving landlord or tenant, distraint, or wrongful detainer,
regardless of the amount involved[]”).
12
the one hand, against a property owner’s right to seek the return of the owner’s possessory
interest in real property upon the expiration of the tenancy, on the other.
A. Landlord-Tenant Relationship Under the Common Law
“The origins of American landlord-tenant law, a subset of property law, can be
traced back to the common law of England,” dating back over 1,000 years. Chateau
Foghorn LP v. Hosford, 455 Md. 462, 489 (2017). A landlord and tenant relationship
arises when an individual occupies the real property of another with permission and for
a consideration, which is usually in the form of the payment of rent. 49 Am. Jur. 2d
Landlord and Tenant § 1 (2021). The rights of a lessee and a lessor in property that is
subject to a lease are divided: the lessee has a possessory interest; and the lessor has the
reversionary interest. Id. Thus, “a lessee has a present possessory interest in the
premises, while the lessor has a future reversionary interest and retains fee title.” Id.
During the tenancy, a tenant has many rights associated with his or her possessory
interest, such as the covenant of quiet enjoyment. In our modern society, a residential
tenant has the right to safe and habitable living conditions, which is typically enforced
through rental licensing and inspection regulations enacted pursuant to the police powers
of the local government over property within its jurisdiction, as well as the rent escrow
statute.
Of course, all tenancies are of a limited duration and must come to an end. The right
of possession is a very important stick in a property owner’s metaphorical bundle of rights,13
13
Justice Johnson of the Vermont Supreme Court describes “the bundle of rights” or
“bundle of sticks” trope as “the dominant legal paradigm for the courts and the theory of
13
which must ultimately be returned to the owner upon the conclusion of the tenancy. The
importance of the possessory interest is reflected in the adage, dating back to medieval times
that, “possession is nine-tenths of the law.”14 The expression recognizes the practical reality
that one who is in physical possession of property is in an advantageous position, even if a
rightful owner has a valid claim to possession. See, e.g., Paxton v. Fisher, 45 P.2d 903, 909
(Utah 1935) (Wolfe, J., concurring) (explaining the phrase as protecting the current occupant
against the claims of a rightful owner who may “not take the law into his own hands”). At
the conclusion of a tenancy, where a landlord-tenant relationship does not end with a
handshake and a mutual parting of the ways, there must be a judicial process which allows
the peaceful and lawful transfer of the possessory interest back to the property owner.
The common law action of ejectment was created, and later expanded, to
determine who had the right to possess land. Brown v. Housing Opportunities Comm’n
of Montgomery Cty., 350 Md. 570, 577–78 (1998). Ejectment “originated as a very
property that is taught to American law students.” Denise R. Johnson, Lecture, Reflections on
the Bundle of Rights, 32 Vt. L. Rev. 247 (2007). She notes that “[t]he bundle of rights
metaphor was intended to signify that property is a set of legal relationships among people and
is not merely ownership of ‘things’ or the relationships between owners and things.” Id. at
249. In her lecture, she outlines a list of eleven incidents of property ownership that have been
identified as being “common to all mature legal systems.” Id. at 253 (quotations omitted). The
“bundle of rights [theory] recognizes that many individuals can have simultaneously existing,
legally recognized interests[.]” Id. at 257. One such ownership right is the right of possession,
which is given by the owner’s permission to the tenant during the term of the tenancy.
14
“[T]he phrase is generally said to have been inspired by a medieval English statute
that has long predated the usages that apparently began in the sixteenth century, namely
the Forcible Entry and Detainer [] statute that outlawed the forcible ejection of anyone who
was in peaceable possession of a property.” Carol M. Rose, The Law is Nine-Tenths of
Possession: An Adage Turned on its Head, Arizona Legal Stud. Discussion Paper No. 14-
13 (2014).
14
narrow remedy,” and was designed to “give the lessee of property a cause of action
against anyone who ejected him, including his lessor.” Pernell v. Southall Realty, 416
U.S. 363, 373 (1974) (footnote omitted). The ejectment action employed a “variety of
intricate fictions,” which were used to try either title to real property, or the right to
possess it. Id.15
Although the common law action of ejectment was initially utilized to allow an
ousted tenant to recover possession, the law developed over time to also enable landlords
to recover possession from their tenants. Brown, 350 Md. at 578. In Brown, we noted
that the common law ejectment action “became cumbersome, time-consuming, and
subject to bullying and delay tactics by the tenant[,]” which led to Parliament’s enactment
of a statute in 1731 to “deal with those problems[.]” Id. (citing 4 Geo. II, Ch. 28). The
1731 Parliamentary statute: (1) required tenants willfully holding over after termination
of the lease to pay rent in an amount equal to double the yearly value of the property and
15
In Pernell v. Southall Realty, 416 U.S. 363, 373 n.15 (1974), Justice Marshall
described the “classic fiction” that was used in common law ejectment actions “where two
persons wished to try the title to land. One of them leased it to an imaginary person and
the other leased it to another imaginary person.” One imaginary lessee would “eject” the
other, in order to try possession of the competing imaginary leases, and the court would
then “decide which of the real lessors had title to the land.” Id. (citations omitted).
Maryland’s common law ejectment actions can be traced to 1632, when
Maryland, as a Province, was granted by King Charles the first, King of
England, to Lord Baltimore, by Charter constituting him absolute Lord and
Proprietary of the Province of Maryland, with power to him, his heirs and
assigns to grant any part of the Province, in fee simple, tail or otherwise, to
be held of the Lord Proprietary, his heirs and assigns.
See John McHenry, The Ejectment Law of Maryland, 25 (1822).
15
authorized landlords to recover that rent through an action on the debt; and (2) permitted
landlords having a right of reentry under their lease upon nonpayment of rent to proceed
in ejectment without the need for formal demand of the rent and actual or fictional reentry
of the property by merely serving or posting notice, whenever six months of rent was in
arrears. Id. at 579. The “tenant could abort the ejectment action directly only by paying
or tendering to the landlord, or paying into court, prior to trial, all rent in arears and
costs.” Id.
The 1731 statute enacted by Parliament was incorporated into Maryland law in 1776
through Article 5 of the Maryland Declaration of Rights.16 In Martin v. Howard County,
349 Md. 469, 481–83 n.9 (1998), Judge Eldridge, writing for the Court, described the
history of ejectment actions in Maryland, noting that “the action of ejectment, with all these
fictions, continued to be the only mode of recovering the possession of land in Maryland
down to the year 1870.” In 1870, the Legislature abolished the fictitious parties and a
fictitious lease that were utilized in common law ejectment actions, instead requiring that
“the real persons who are proper as plaintiff and defendant, shall be named.” Brown, 350
Md. at 580 (quoting 1870 Md. Laws, ch. 420).
16
Article 5 of the Maryland Declaration of Rights provides in pertinent part:
That the Inhabitants of Maryland are entitled to the Common Law of England
. . . and to the benefit of such English statutes as existed on the Fourth day of
July, [1776] . . . except such as . . . may be inconsistent with the provisions
of this Constitution; subject, nevertheless, to the revision of, and amendment
or repeal by, the Legislature of this State . . . .
16
From the initial 1870 enactments and continuing up to the present, the Legislature
has adopted a comprehensive statutory framework that regulates the landlord and tenant
relationship. The vast majority of Maryland’s landlord and tenant statutes are located in
Title 8 of the Real Property Article. These various statutes regulate “different phases of
the landlord and tenant relation[ship], including, among others, statutes relating to the
execution, acknowledgement and recording of leases, statutes regulating the procedure for
repossessing demised premises, and statutes relating to distress for rent.” 14 Maryland
Law Encyclopedia, Landlord and Tenant Relationship § 2 (2021).
In this case, we are concerned with the statutes that provide a landlord with a
statutory right to recover possession of the landlord’s property. As we discuss herein, the
General Assembly has enacted three statutes “at different times to deal with different
situations” whereby the landlord may regain possession to property that is subject to a
leasehold interest, or where the leaseholder interest was terminated. Brown, 350 Md. at
577. These statutes, which are currently codified in Subtitle 4 of Title 8 of the Real
Property Article, provide certain statutory remedies and actions other than the right of
distraint for rent, and are intended to provide landlords with a statutory alternative to the
common law action of ejectment. In fact, although a common law ejectment action may,
in theory, still exist in the landlord-tenant context as a possible alternative to the statutory
remedies, we have found no Maryland cases in which common law ejectment has been
utilized by a property owner to recover possession of a residential property from a tenant
after the conclusion of a tenancy.
17
The three statutes involve distinct scenarios whereby a landlord may regain
possession to property, each containing different elements and processes. Two of the three
statutes—failure to pay rent (RP § 8-401) and breach of lease (RP § 8-402.1)—are based
upon the contractual relationship between the landlord and tenant and involve a tenant’s
breach of a covenant, which may give rise to a landlord’s right to a writ of possession,
depending upon certain statutory conditions and limitations. The third statute—the tenant
holding over statute (RP § 8-402)—is only available where a contract has expired. Under
the tenant holding over statute, “if the landlord proves the four requisite elements—prior
possession, a lease that has expired, proper notice to quit, and the tenant’s refusal to
vacate—the landlord is entitled to a judgment of restitution, subject to the provisions for
appeal.” Brown, 350 Md. at 580.
We briefly discuss these three statutes, which are the primary means that a landlord
may use to repossess real property from a tenant. Cases brought pursuant to these statutes
all arise within the exclusive original jurisdiction of the District Court. Md. Code (1974,
2021 Repl. Vol., 2021 Supp.), Courts and Judicial Proceedings Article (“CJ”) § 4-401.
B. Landlord’s Statutory Remedies for Repossession of Property
1. RP § 8-401 – Repossession Arising from the Tenant’s Failure to Pay
Rent
When a tenant fails to pay rent, a landlord may bring an action for repossession
under RP § 8-401. The current iteration of the statute originated from a statute enacted in
1937. 1937 Md. Laws, ch. 529. This action, often called a “summary ejectment action,”
arises pursuant to a contractual relationship between the landlord and tenant—whether
18
express or implied, oral, or written17—and is based upon the tenant’s failure to abide by
his or her contractual obligation to pay rent. “Summary ejectment proceedings empower
the court to enter a money judgment for the amount of rent determined to be owing and
also to issue an order for the tenant to yield possession of the premises when the jurisdiction
over the tenant has been obtained.” Schuman, Kane, Felts & Everngam, Chartered v.
Aluisi, 341 Md. 115, 122 (1995) (internal quotation marks omitted).
As we have previously observed, “[s]ummary ejectment proceedings are
expedited.” Cane v. EZ Rentals, 450 Md. 597, 602 (2016). The summons issued by the
court directs the tenant to appear in the District Court for a trial on the fifth day following
the filing of the complaint and to show cause why the relief sought by the landlord should
not be granted. RP §§ 8-401(b)(3)(i)–(ii). The court is authorized to adjourn the trial for
one day to permit either party to procure necessary witnesses “in the interest of justice[,]”
but may not adjourn the trial for a period of longer than one day unless all parties consent.
RP § 8-401(e)(1). If judgment is entered in favor of the landlord, the statute provides that
the court shall order possession to be given to the landlord within four days. RP § 8-
401(e)(3).
Because the summary ejectment action is based solely upon the tenant’s obligation
to pay rent, if the tenant tenders the rent due, plus costs prior to the entry of judgment, the
action is dismissed. If the court enters judgment in favor of the landlord, including
17
RP § 1-101 defines “Lease” as “mean[ing] any oral or written agreement, express
or implied, creating a landlord and tenant relationship, including any ‘sublease’ and any
further sublease.”
19
possession of the premises, the tenant may redeem the leased premises if the tenant tenders
to the landlord the amount of the judgment, as well as any court awarded costs and fees, at
any time prior to the execution of the eviction order. RP § 8-401(g)(1). The tenant’s right
of redemption is no longer available if the tenant has had three judgments of possession
within the previous 12 months. RP § 8-401(g)(2).
Just as the time period between the filing of the complaint and the trial date is
expedited, so too is the time to note an appeal. Either party may appeal the judgment of
the District Court to the circuit court within four days from the entry of judgment. RP § 8-
401(h)(1). If the tenant appeals, the tenant must furnish a bond to stay execution of the
judgment. RP §§ 8-401(h)(2)–(3).
2. Breach of Lease Action Arising Pursuant to RP § 8-402.1
RP § 8-402.1, adopted in 1978, is the most recent enactment in the trilogy of statutes
enacted to provide a statutory remedy for the recovery of a leased premises. Brown, 350
Md. at 576. Like the summary ejectment action described above, the statutory “breach of
lease” action is also based upon a contract arising between the parties. Prior to the
enactment of RP § 8-402.1, there was no statutory procedure for a landlord to obtain
possession of his or her property where the tenant’s breach involved conduct other than
nonpayment of rent. As we noted in Brown, because there was no statutory process to
allow a landlord to recover possession of property where the tenant’s breach involved
something other than nonpayment of rent, landlords relied upon the tenant holding over
statute, RP § 8-402, to recover possession.
20
To address this gap in the statutory framework, the General Assembly enacted RP
§ 8-402.1. 1978 Md. Laws, ch. 478. By its enactment of the breach of lease statute, the
Legislature created a “separate, self-contained District Court procedure by which landlords
could recover possession of leased premises based on breaches of covenants other than the
payment of rent . . . .” Brown, 350 Md. at 584. We explained that, by enacting RP § 8-
402.1, “[t]he General Assembly was not content to have the practice of using [the holdover
statute, RP] § 8-402 continued, but neither did it intend to leave landlords only to the
common law action of ejectment.” Id.
The statutory action for breach of lease is only available where: (1) the lease has not
expired; and (2) the lease contains an express term stating that the landlord may repossess
the premises prior to the expiration of the term. RP § 8-402.1. Breach of lease actions are
purely possessory in nature—there is no provision in the statute that permits the landlord
to recover rent or damages.
Prior to filing suit, the landlord must give the tenant 30 days’ written notice that the
tenant is in violation of the lease and that the landlord desires to repossess the leased
premises. RP § 8-402.1(a)(1)(i)(2)(A). If the tenant or person in actual possession refuses
to comply with the notice, the landlord may file a complaint in the District Court, and “[t]he
court shall summons immediately the tenant or person in possession to appear before the
court on a day stated in the summons to show cause, if any, why restitution of the possession
of the leased premises should not be made to the landlord.” RP § 8-402.1(a)(1)(ii).
The court shall award possession to the landlord only where the court “determines
that the tenant has breached the terms of the lease and that the breach was substantial and
21
warrants an eviction . . . .” RP § 8-402.1(b)(1) (emphasis added). In other words, a tenant
does not automatically forfeit his or her rights under the lease because of a technical breach.
Rather, as we have previously explained, the Legislature fashioned the statutory remedy
upon: “(1) the long-standing principle that forfeitures for breach of covenant were not a
matter of right but were subject to the intervention of equity when regarded as unfair or
inappropriate, and (2) the availability of alternative remedies for landlords in breach of
covenant cases, such as damages and equitable relief.” Brown, 350 Md. at 584. We have
explained that, under the express language of the statute, “the court is entitled, and indeed
directed, to weigh all of the relevant factors before declaring a forfeiture and evicting the
tenant, including the actual loss or damage caused by the violation at issue, the likelihood
of future violations, and the existence of effective alternative remedies for past or existing
violations.” Id.If the court determines that the tenant has breached the terms of the lease and that
the breach is substantial and warrants eviction, it shall enter judgment of restitution in
favor of the landlord. RP § 8-402.1(b)(1). Either party may appeal the judgment to the
circuit court within ten days of the entry of judgment. RP § 8-402.1(b)(2). “Upon
application of either party, the court shall set a day for the hearing of the appeal not less
than five nor more than 15 days after the application and notice of the order for the
hearing shall be served on the other party or that party’s counsel at least five days before
the hearing.” Id.
22
3. Tenant Holding Over Action – RP § 8-402
The final statute in the trilogy is the tenant holding over statute, RP § 8-402. Unlike
the two statutes discussed above, the right of possession provided under the tenant holding
over statute is not based upon an ongoing contractual relationship between the landlord and
tenant and a tenant’s breach. Rather, the statute provides a mechanism that enables a
landlord to regain possession upon the expiration of the lease by virtue of his or her
reversionary interest.
“At common law, tenancies for a term of years required no notice of termination
and automatically expired at the end of the stated term.” Douglas M. Bregman, Maryland
Landlord-Tenant Law: Practice and Procedure § 9.05 (Matthew Bender 4th ed. 2010, 2020
Supp.). “A tenant remaining beyond the stated term became a tenant at sufferance and,
depending upon the express or implied intent of the landlord, could become a tenant at will,
a periodic tenant, or a tenant for an entirely new term co-extensive with the original term.”
Id. (footnote omitted).
For over a century, Maryland has had a tenant holding over statute on the books that
enables a landlord to recover possession of his or her property from a tenant after the
expiration of a lease. See Benton v. Stokes, 109 Md. 117 (1908). From its earliest
enactment, continuing to the present, the landlord’s right to regain possession of the
landlord’s property after the expiration of a lease has been conditioned only upon the
23
landlord providing the tenant with written notice to quit. Compare Section 1, art. 53 of the
Code Pub. General Laws 1904 with RP § 8-402(b)(1)(ii)(2).18
The tenant holding over statute modifies the common law in two respects. First,
with some exceptions not pertinent here, it establishes a periodic month-to-month tenancy
for a holdover tenant who remains on the premises with the consent of the landlord after
the expiration of a lease. RP § 8-402(d).19 Second, it requires that a landlord provide 60
days’ written notice of the landlord’s intent to terminate a tenancy prior to taking action to
regain possession. RP § 8-402(b)(1)(i).20
18
Section 1, art. 53 of the Code of Public General Laws of 1904 provided as follows:
In all cases where any interest in real estate shall be let or leased for any
definite term or at will and the lessor[,] his heirs, executors, administrators
or assigns shall desire to repossess the same after the expiration of the term
for which it was demised and shall give notice in writing one month before
the expiration of said term or determination, of said will, to the tenant or the
person in actual possession to remove from the same at the end of said term,
and if the said tenant or person in actual possession shall refuse to comply
therewith the lessor, his heirs executors, administrators or assigns may make
complaint thereof in writing to any justice of the peace of the county wherein
such real estate is situate.
19
The exceptions to the month-to-month holdover tenancy are where: (1) a written
lease provides an alternative holdover tenancy period that is initialed by the tenant; or (2)
the holdover tenant had been a week-to-week tenant, in which case the holdover tenant
remains a week-to-week tenant. RP § 8-402(d).
20
Prior to October 1, 2021, the statute only required that the landlord provide the
tenant with one month’s notice prior to filing a tenant holding over action. During the 2021
Legislative Session, the General Assembly expanded the notice provision to require that
all tenants receive 60 days’ notice to vacate prior to instituting a tenant holding over
proceeding. 2021 Md. Laws, ch. 803. In the instant cases, Baltimore City’s local laws
require that the landlord provide the tenant with 60 days’ notice prior to a landlord filing a
tenant holding over action. See Public Local Laws of Baltimore City (“PLL”) § 9-14.
Accordingly, although RP § 8-402 only required 30 days’ notice at the time that Copycat
24
After the statutory notice requirements have been satisfied, if the tenant refuses to
vacate the property, the landlord may file a tenant holding over complaint in the District
Court to regain possession of the property. Once the complaint is filed, the court “shall
issue” a summons ordering the “constable or sheriff to notify the tenant, assignee, or
subtenant to appear on a day stated in the summons before the court to show cause why
restitution should not be made to the landlord.” RP § 8-402(b)(ii)(1).
Upon filing of the complaint and notice provided by the statute, the court “shall
thereupon give judgment for the restitution of the possession of said premises” to the
landlord upon finding that: (1) “the landlord had been in possession of the leased
property[;]” (2) the “tenancy is fully ended and expired[;]” (3) “due notice to quit . . . [has]
been given to the tenant or person in possession[;]” and (4) “that the tenant or person in
possession [has] refused to do so[.]” RP § 8-402(b)(2)(i).
Although tenant holding over actions are purely possessory in nature, the landlord
may request a judgment for actual damages against the tenant or the person in actual
possession that are caused by the hold over. RP § 8-402(a). Only actual damages may be
claimed, which may include the rent under the lease apportioned for the period of the
holdover. Id.
If the court enters judgment in favor of the landlord, the tenant has 10 days to file a
notice of appeal in the circuit court. RP § 8-402(b)(2)(ii). The “appellate court shall, upon
the application of either party, set a day of the appeal, not less than 5 nor more than 15
gave the Appellants notice, Copycat provided the Appellants with 60 days’ notice as
required by the Baltimore City Public Local Laws.
25
days” after the application for appeal, and the order setting the hearing shall be served on
the opposing party or that party’s counsel at least 5 days before the hearing. RP § 8-
402(b)(2)(iv).
Unlike the breach of lease action—in which the Legislature expressly mandates that
the court weigh equitable factors and alternative remedies before declaring a forfeiture of
an existing lease, thereby entitling a landlord to possession—in a tenant holding over
action, the court has no such authority to undertake an equitable analysis before awarding
possession to the landlord. See Brown, 350 Md. at 580 (noting that “there is no caveat in
§ 8-402 comparable to that in § 8-402.1”). Instead, the tenant holding over statute mandates
that the court enter a judgment of restitution for the landlord provided that the “landlord
[has] prove[n] the four requisite elements—prior possession, a lease that has expired,
proper notice to quit, and the tenant’s refusal to vacate[.]” Id.
In this case, we are being asked to balance the landlord’s right to repossess the
landlord’s property after the expiration of the tenancy with the tenant’s right to safe and
habitable living conditions during the term of the tenancy. Just as the Legislature has seen
fit to alter the common law by providing statutory remedies to property owners for the
repossession of property, it has also altered the common law to provide statutory remedies
to residential tenants throughout the duration of their tenancy to address unsanitary or
dangerous living conditions. It is useful to outline the various remedies available to the
tenant.
26
C. Residential Tenant’s Statutory Remedies
1. Rent Escrow – RP § 8-211
At common law, a tenant’s covenant to pay rent was independent of other
covenants in the lease, absent an express agreement to the contrary. Bregman, supra at
§ 3.03[4][c]. Accordingly, a tenant was not entitled to withhold rent for a landlord’s
breach of a covenant in the lease, such as the existence of a dangerous condition. Id. The
General Assembly altered the common law through the enactment of the rent escrow
statute, RP § 8-211, which declared a “public policy of Maryland that meaningful
sanctions be imposed upon those who allow dangerous conditions and defects to exist in
leased premises[.]” The statute establishes “an obligation upon landlords to repair and
eliminate conditions and defects which constitute, or if not promptly corrected will
constitute, a fire hazard or a serious and substantial threat to the life, health or safety of
occupants[.]” RP § 8-211(e). The statute provides a non-exhaustive list of examples of
conditions for which a tenant may seek relief under the statute, including:
(1) Lack of heat, light, electricity, or hot or cold running water, except where
the tenant is responsible for the payment of the utilities and the lack thereof
is the result of the tenant’s failure to pay the charges;
(2) Lack of adequate sewage disposal facilities;
(3) Infestation of rodents in two or more dwelling units;
(4) The existence of any structural defect which presents a serious and
substantial threat to the physical safety of the occupants; or
(5) The existence of any condition which presents a health or fire hazard to
the dwelling unit.
RP § 8-211(e)(1)–(5).
27
The rent escrow statute creates both an affirmative cause of action for a tenant, as
well as a defense to certain actions brought by a landlord. If the tenant notifies the landlord
of serious conditions or defects, and “[i]f the landlord refuses to make the repairs or correct
the conditions, or if after a reasonable time the landlord has failed to do so, the tenant may
bring an action of rent escrow to pay rent into court because of the asserted defects or
conditions[.]” RP § 8-211(i). The tenant also “may refuse to pay rent and raise the
existence of the asserted defects or conditions as an affirmative defense” to an action
brought by the landlord “to recover rent or the possession of the leased premises.” Id. As
a condition to obtaining relief under the statute, the tenant must notify the landlord of the
defect and may be required to pay the rent to the court. RP §§ 8-211(g) and (k).
In addition to any other relief available to the tenant (such as an abatement of rent),
if, “within 90 days after the court finds that the conditions complained of by the tenant exist[,]
the landlord has not made the repairs or corrected the conditions complained of, the tenant
may file a petition for an injunction in the District Court requesting that the court “order the
landlord to make the repairs or correct the conditions.” RP § 8-211(j). In adjudicating issues
under the rent escrow statute, the trial court is required to make “appropriate findings of fact”
and order relief either for the landlord—e.g., termination of the lease and restitution of the
premises or dismissal of the rent escrow action—or the tenant—e.g., abatement of the rent
and an order that the landlord make necessary repairs. RP § 8-211(m). A public local law
28
or ordinance “comparable in subject matter” to the rent escrow state “shall supersede” the
State statute. RP § 8-211(o).21
2. Affirmative Claim or Defense Under Anti-Retaliation Statute –
RP § 8-208.1(b)
State law protects a residential tenant from retaliation by a landlord for certain
activities. RP § 8-208.1(a). Included among the prohibited acts, a landlord may not “bring
or threaten to bring an action for possession against a tenant[,]” because the tenant or the
tenant’s agent: (1) makes a good faith complaint to the landlord, or to any public agency
about the landlord, regarding an alleged violation of the lease, a violation of the law,
condition on the leased premises that is a substantial threat to the health or safety of
occupants; (2) has filed a lawsuit against the landlord, or testified or participated in a
lawsuit involving the landlord; or (3) has participated in any tenants’ organization. RP § 8-
208.1(a)(2). Where a landlord engages in action that is prohibited by the statute, it is
considered to be a “retaliatory action[.]” RP § 8-208.1(b). The tenant may raise a
retaliatory action of a landlord in “defense to an action for possession” or as “an affirmative
claim for damages resulting from a retaliatory action of a landlord occurring during a
tenancy.” Id.
21
As we observed in Pettiford v. Next Generation Trust Service, 467 Md. 624, 660–
61 (2020), “Baltimore City’s rent escrow law[] mirrors RP § 8-211” and provides that a
tenant can raise the issues relating to housing conditions outlined in that public local law
“as a defense in answer to an action of distress for rent or in any complaint proceeding
brought by a landlord to recover rent or the possession of leased premises for nonpayment
of rent[.]” (quoting PLL §9-9(c)(2)).
29
If the court finds that the landlord committed a retaliatory action, the court may
award the tenant damages against the landlord in an amount not to exceed the equivalent
of three months’ rent, reasonable attorneys’ fees, and court costs. RP § 8-208.1(c)(1).22
To obtain relief under the statute, the tenant must be current on the rent due and owing at
the time of the alleged retaliatory action, unless the tenant is withholding rent pursuant
to the rent escrow statute, RP § 8-211, or a comparable local ordinance. RP § 8-208.1(d).
The statute also expressly provides that, “[a]s long as a landlord’s termination of a
tenancy is not the result of a retaliatory action, nothing in this section may be interpreted
to alter the landlord’s or tenant’s rights to terminate or not renew a tenancy.” RP § 8-
208.1(f).
3. Tenant’s Protections Under Consumer Protection Laws
In addition to the protections afforded to tenants under Title 8 of the Real Property
Article, the Maryland Consumer Protection Act (“MCPA”) provides residential tenants
protection in the form of public enforcement, as well as private remedies against landlords
who engage in unfair, abusive, or deceptive trade practices. See Maryland Code (1974,
2013 Repl. Vol., 2021 Supp.), Commercial Law Article (“CL”) § 13-101, et. seq.23
22
Similarly, if the court finds that the tenant’s assertion of retaliatory action was
made “in bad faith or without justification,” the court may enter a judgment against the
tenant in favor of the landlord. RP § 8-208.1(c)(2).
23
Under the Maryland Consumer Protection Act (“MCPA”), “consumer realty” is
defined as real property that is “primarily for personal, household, family or agricultural
purposes.” CL § 13-101(d). “Consumer” is defined as an “actual or prospective purchaser,
lessee, or recipient of consumer goods, consumer services, consumer realty, or consumer
credit.” CL § 13-101(c)(1). Under these definitions, residential tenants who lease real property
qualify for protection under the MCPA. See Golt v. Phillips, 308 Md. 1, 8 (1986).
30
In the rental housing context, our jurisprudence firmly establishes the right of a
tenant to bring a private cause of action under the MCPA where a landlord violates a local
rental license law, and where the tenant can prove that the tenant suffered actual injury or
loss in connection with the unlicensed status of the property. In Golt v. Phillips, 308 Md.
1 (1986), we held that where the landlord had engaged in unfair and deceptive trade
practices in the rental of consumer realty (by renting an unlicensed apartment with
housing code violations), the tenant could recover compensatory damages consisting of
three months’ rent that he had paid for an uninhabitable apartment, as well as
consequential damages, such as moving expenses and costs associated with substitute
housing for the remainder of the term of the original lease. 308 Md. at 13–14.
In Citaramanis v. Hallowell, 328 Md. 142 (1992), the tenants brought a similar
private action under the MCPA against the landlord for renting them an unlicensed
apartment. However, unlike the tenant in Golt—who had established that the property
was not only unlicensed, but uninhabitable—the tenants in Citaramanis did not allege
that the property was unclean, unsafe, uninhabitable, or unsuitable in any regard. Id. at
149. To the contrary, the tenants’ counsel explicitly argued that the condition of the
property was irrelevant because the basis of their cause of action was misrepresentation
regarding the failure to license, not the condition of the property. Id. In fact, the evidence
reflected that, at the conclusion of the term of the lease, the tenants elected to extend their
tenancy and remain on the premises for another six months after the termination of the
original lease at a higher rent. Id.31
We granted certiorari to determine whether a tenant who brings a private action
under the MCPA may be awarded restitution of rent paid for an unlicensed dwelling
upon proving lack of licensure alone. Id. at 147. We held that in order to prevail on a
private MCPA claim, a plaintiff must prove “actual injury or loss.” Id. at 151 (quoting
CL§ 13-408(a) and Golt, 308 Md. at 12). We explained the rationale for the requirement
that a plaintiff prove “actual injury or loss,” observing that where the plaintiff does not
suffer an injury or loss, they may avail themselves of the MCPA’s public enforcement
remedies. Id. at 151–52. We noted that the MCPA’s “public enforcement mechanisms
are set up to prevent potentially unfair or deceptive trade practices from occurring, even
before any consumer is injured, whereas § 13-408(a) requires that actual ‘injury or loss’
be sustained by a consumer before recovery of damages is permitted in a private cause
of action.” Id. at 153. We stated that “awarding full restitution of the rent paid by the
tenants who offered no proof of actual injury or loss would be in the nature of a punitive
remedy,” serving to penalize the landlords for their failure to obtain a license and to
serve as a general deterrent to similar conduct by other landlords generally. Id. We
explained that CL § 13-408(a) “was not intended to punish the landlord or set an
example for similar wrongdoers.” Id. Accordingly, we held that the plaintiff tenants
could only recover on their private MCPA claim against their landlord for deceptive
trade practices arising from renting an unlicensed apartment if they could prove that the
unlicensed condition caused them to suffer an “actual injury or loss.” Id. We remanded
the case to the trial court for further proceedings “to determine whether the tenants are
32
able to prove that they suffered ‘actual injury or loss,’ justifying recovery” under CL
§ 13-408(a). Id. at 153–54.
In summary, as part of the comprehensive codification of the laws governing
landlord and tenant relations, the Legislature provides statutory remedies to tenants that
are intended to ensure that they are protected from unsafe or uninhabitable living
conditions for the duration of their tenancy. These remedies include the rights and
protections granted under:
• the rent escrow statute (RP § 8-211), which provides the tenant with the right
to withhold rent where dangerous and serious defects exist, until conditions are
corrected, as well as the right to seek injunctive relief;
• the anti-retaliation statute (RP § 8-208.1), which protects tenants from
retaliatory conduct by landlords, including actions taken against a tenant for
complaining about living conditions to a public agency; and
• the MCPA (CL § 13-101, et seq), which provides for public enforcement
actions, as well as allows the tenants to seek damages arising from a landlord’s conduct
in renting an unlicensed premises where such unlawful conduct causes actual injury or
loss.
These statutes also allow a prevailing tenant to recover reasonable attorney’s fees.
In addition to these statutory remedies under State law, the Baltimore City Public Local
Laws (“PLL”) also provide tenants with additional protections with respect to housing
33
conditions for the duration of a tenancy, such as an implied warranty of habitability.24 As
our case law illustrates, a tenant may assert these statutory and local law protections as
defenses to a landlord’s action or as an independent affirmative claim against the
landlord. See, e.g., Pettiford v. Next Generation Trust Service, 467 Md. 624 (2020)
(holding that a tenant was entitled to assert and litigate the defense of implied warranty
of habitability provided under the Baltimore City Public Local Laws as well as the rent
escrow statute during a summary ejectment proceeding and to have those defenses fully
considered); Cane v. EZ Rentals, 450 Md. 597 (2016) (holding that a tenant can assert
rights under the rent escrow statute as a defense to a landlord’s summary ejectment
proceeding); Lockett v. Blue Ocean Bristol, LLC, 446 Md. 397 (2016) (discussing a
tenant’s right to file a counterclaim under the anti-retaliation statute in response to a
landlord’s filing of a tenant holding over action).
24
PLL § 9-14.1, concerning the implied warranty of fitness, also known as the
implied warranty of habitability, provides that, “[i]n any written or oral lease or agreement
for rental of a dwelling intended for human habitation, the landlord shall be deemed to
covenant and warrant that the dwelling is fit for human habitation.” PLL § 9-14.1(a). PLL
§ 9-14.1(b)(3) defines “fit for human habitation” as meaning that “the premises shall not
have any conditions which endanger the life, health[,] and safety of the tenants, including,
but not limited to vermin or rodent infestation, lack of sanitation, lack of heat, lack of
running water, or lack of electricity.” PLL § 9-14.2 provides that the “warranty of
habitability” provided in PLL § 9-14.1 “is a continuing warranty, and the tenant may
maintain an action for breach of this warranty, at any time during the tenancy, if the
dwelling becomes unfit for human habitation. An action for breach of warranty may also
be maintained as a defense in an action for summary ejectment or distress of rent.”
(Emphasis added).
34
D. Whether We Should Judicially Foreclose a Property Owner’s Right to File
a Statutory Holding Over Action if the Property Owner Lacks a Valid
Rental License
Against the backdrop of these statutory remedies available to both landlords and
tenants, we consider Appellants’ contention that we should apply the principles articulated
in McDaniel v. Baranowski to tenant holding over actions and hold that the statutory
remedy is unavailable to an unlicensed landlord seeking the return of the landlord’s
possessory interest in real property after the expiration of the tenancy. In support of their
position, Appellants rely upon our holding in McDaniel, as well as a line of Maryland cases
dealing with the Court’s unwillingness to assist with the enforcement of monetary claims
made by unlicensed professionals for services rendered under a contract for which a license
was required to protect the public. See, e.g., Berenter, 258 Md. 290; Snodgrass, 232 Md.
416; Goldsmith, 132 Md. 283. Given that these cases are based upon notions of public
policy, it is useful to first give an overview of the principles underlying our holding in these
cases.
“From the dawn of the common law tradition in England, courts have refused to
implement those private contractual undertakings which, when measured against the
prevailing mores and moods of society, contravene judicial perceptions of so-called ‘public
policy.’” Maryland-National Capital Park & Planning Comm’n v. Washington National
Arena, 282 Md. 588, 605 (1978) (citations omitted). “Public Policy is that principle of the
law which holds that no subject can lawfully do that which has a tendency to be injurious
to the public, or against the public good, which may be termed, as it sometimes has been,
the policy of the law, or public policy in relation to the administration of the law.” Id.35
(citing Egerton v. Earl Brownlow, 4 H.L. Cas. 1, 196 (1853)). One such application of this
principle occurs where a party seeks to enforce an agreement where its performance is
dependent upon the enforcing party securing a license. Restatement (Second) of Contracts
(“Restatement”) § 181, cmt. a (1981). The general rule has been articulated as follows:
If a party is prohibited from doing an act because of his failure to comply
with a licensing, registration or similar requirement, a promise in
consideration of his doing that act or of his promise to do it is unenforceable
on grounds of public policy if
(a) the requirement has a regulatory purpose, and
(b) the interest in the enforcement of the promise is clearly
outweighed by the public policy behind the requirement.
Restatement § 181. We have applied this rule in cases by prohibiting an individual from
enforcing a contract seeking money damages against another party to the contract, where
a license was required for the performance of the contract and where we have determined
that the license was necessary for the protection of the public.
In Goldsmith, an unlicensed insurance broker filed suit against a company to recover
compensation, in the form of commissions, for services that the broker had performed
which required a broker’s license. 132 Md. at 284. This Court held that the unlicensed
brokers could not recover compensation for their unlicensed services. The Court explained
that “[i]t is settled that, where the contract which the plaintiff seeks to enforce is expressly,
or by implication, forbidden by the statute, no court will lend its assistance to give it effect.”
Id. at 286. The Court explained that where the statute is enacted “not for revenue alone,
but to protect the public,” the Court will not permit the contract’s enforcement. Id. at 288.
36
In Snodgrass we refused to permit an unlicensed architect to recover fees as a third-
party beneficiary to a contract, where the underlying services performed by the architect
required a license. 232 Md. at 416. Citing Goldsmith, we observed that the statute in
question that required professional licensure was enacted for the protection of the public
and not as a revenue measure. Id. at 422. Accordingly, we determined that “under the rule
of the Goldsmith case, a contract prohibited by statute would not be enforceable by the
unlicensed party[]” and therefore, the unlicensed architect was barred from recovery for
his professional services. Id.In Berenter, we held that a building contractor could not enforce a mechanic’s lien
upon a property for $12,976.54 plus interest, where the contractor was not licensed under
the Maryland Home Improvement Law and where the property owners were dissatisfied
with the work and embroiled in a payment dispute. 258 Md. at 292. Citing to Snodgrass
and Goldsmith, we noted that
[w]e and our predecessors have held that if a statute requiring a license for
conducting a trade, business or profession is regulatory in nature for the
protection of the public, rather than merely to raise revenue, an unlicensed
person will not be given the assistance of the courts in enforcing contracts
within the provisions of the regulatory statute because such enforcement is
against public policy.
Id. at 293.
We applied these principles in McDaniel where an unlicensed landlord was
attempting to enforce a tenant’s covenant to pay rent under the summary ejectment statute.
419 Md. 560. Given Appellants’ reliance on this case, it is useful to discuss this case in
37
some detail, particularly given the factual and procedural differences between McDaniel
and the instant cases.
In McDaniel, the landlord and tenant entered into a written lease for an apartment
rental in Anne Arundel County in March 2009. Unbeknownst to the tenant, the landlord
did not have a rental license as required by the Anne Arundel County Code. Prior to
moving into the apartment, the tenant paid the landlord the first month’s rent in the amount
of $650.00, as well as a security deposit of $650.00. Id. at 565. Immediately upon taking
possession, the tenant discovered various problems with the apartment, including an
electrical problem with the fuse box, which caused it to sizzle and spark and resulted in the
power shutting off “quite a few times” per day. Id. According to the tenant, other aspects
of the apartment were in disrepair, including two windows that had fallen out of the frames,
hitting the tenant and her young daughter on the head on separate occasions. Id. at 566. In
addition, the kitchen windows were missing locks, and the kitchen countertop was loose,
unglued to the cabinet on which it sat. Id.The tenant contacted the county health department about the condition of the
property, which resulted in a county inspection of the premises. The inspector issued a
letter to the landlord in April 2009—within one month of the tenant moving in—notifying
the landlord of numerous code violations involving the poor condition of the windows,
kitchen countertop, and electrical system. Id. Throughout all of this, the tenant did not
pay rent, other than her initial payment of $1,300.00, which represented the first month’s
rent and the security deposit. Id. at 567. The tenant vacated the property on June 1—less
than three months after she signed the lease agreement. Id.38
Four days after the tenant’s rent was due for April, the landlord filed a summary
ejectment action under RP § 8-401 for failure to pay rent. The tenant was present when
the case was heard on April 23. The District Court awarded possession to the landlord and
entered judgment in the amount of $707.50 in rent and late fees. Id.
The tenant was scheduled to be evicted on May 15, 2009 but was granted an
extension to remain on the premises until May 19. Id. That day, after securing counsel,
the tenant filed an “Emergency Motion to Stay Eviction and to Revise Judgment, and
Request for Rent Escrow,” in which she alleged that the District Court had erroneously
entered judgment “by consent.” Id. In her motion, the tenant alleged that she “had asserted
at the hearing that the premises contained serious and substantial defects and also had
requested the remedy of rent escrow.” Id. (internal quotations and footnote omitted).
In the meantime, prior to the tenant’s filing of the emergency motion, the landlord
had filed a second complaint for repossession under RP § 8-401 for failure to pay rent on
May 12. Id. at 568. In response, the tenant, through counsel, filed a “Notice of Intention
to Defend and Counterclaim,” in which she alleged that the lease was void or voidable as
against public policy, because the landlord had failed to obtain a license for the premises.
The tenant’s counterclaim also pleaded counts alleging a breach of implied warranty of
habitability, violations of the MCPA, and a request for rent escrow. Id. at 568–70. The
tenant requested that the District Court dismiss the landlord’s complaint filed under the
summary ejectment statute and sought $1,300.00 in damages (the amount of her first
month’s rent and security deposit). Id. at 571. She also requested that the court abate her
rent until the landlord made repairs to the premises. Id. Contemporaneously, the landlord
39
filed a motion requesting that the court consolidate his April and May complaints, which
was granted.
At the hearing, the court denied the tenant’s motion to revise the April judgment,
denied her counterclaims, and entered judgment in favor of the landlord for possession of
the property, as well as for the May rent and late fees, determining that the landlord’s failure
to obtain a license did not preclude his summary ejectment action and that the tenant had
failed to prove actual injury under the MCPA. Id. After the circuit court affirmed the
District Court judgment, we granted the tenant’s petition for writ of certiorari to determine
whether a landlord, who does not possess a rental license mandated by the county code,
may nevertheless initiate summary ejectment proceedings based upon a tenant’s failure to
pay rent. Id. at 574.
We started our discussion by noting that “[t]he legal relationship between landlord
and tenant is governed by the contract between the parties,” as well as the statutory
provisions related to landlords and tenants found in Title 8 of the Real Property Article.
Id. We described the steps outlined in the summary ejectment statute, RP § 8-401, that
enable a landlord to regain possession upon a tenant’s failure to pay rent, noting the
swiftness of the process. We observed that, although the summary ejectment process did
not require compliance with a county’s license laws, we focused on the contractual nature
of the parties’ relationship, pointing out that the statute governing written residential
leases—RP § 8-208—prohibited leases from containing certain provisions, including a
tenant’s waiver of any right or remedy provided by applicable law and expressly
recognized the enforceability of local habitability ordinances. Id. at 579–80.
40
We analogized an unlicensed landlord’s attempt to enforce his contract rights
through the summary ejectment process to the unlicensed contractor in Berenter who was
attempting to enforce his contractual right to payment through the mechanic’s lien process.
Id. at 583. Citing Berenter, we observed that “if a statute require[s] a license for conducting
a trade or business which is ‘regulatory in nature for the protection of the public, rather
than merely to raise revenue,’ a person who has neglected to obtain a license ‘will not be
given the assistance of the courts’ in enforcing the contract.” Id. “In other words,” we
explained, “once we determined that the purpose of the statute was to eliminate a perceived
harm, rather than to build the public fisc, then we recognized that an unlicensed person
should not be afforded the benefit of swift justice, or the establishment of a mechanic’s
lien, which requires but a filing in court for its creation.” Id.
We also noted that a summary ejectment proceeding under RP § 8-401 is
“substantively and procedurally limited,” thereby precluding the litigation of complex
issues. Id. at 585. We concluded by recognizing that
[t]he summary ejectment procedure itself is mired in the superior title of the
landlord to the leased premises, once nonpayment occurs, because it only
requires that the landlord describe ‘the property to be repossessed,’ ‘the name
of each tenant,’ and ‘the amount of rent and any late fees due and unpaid,’ in
making the landlord’s prima facie case warranting summary ejectment.
Licensure under local ordinances in order to operate rental dwelling units is
an integral part of a landlord’s status as claimant in those jurisdictions that
require licensure.
Id. at 586–87. We held that, “in order to invoke the facile process of summary ejectment,
a landlord in those jurisdictions requiring licensure, must affirmatively plead and
41
demonstrate that he is licensed at the time of the filing of the complaint for summary
ejectment in order to initiate the summary ejectment process.” Id. at 587.
In summary, our holding in McDaniel was based upon two controlling factors: (1)
the public policy principle that courts will not permit an unlicensed contractor to enforce a
contract the performance of which is dependent upon a license issued for the protection of
the public; and (2) the swift nature of the summary ejectment proceeding, which would
entitle an unlicensed claimant to the contractual relief in the form of money damages and
possession of property arising from a tenant’s alleged breach of contract.
Appellants urge us to apply the policies underlying McDaniel and the cases cited
therein, to preclude the statutory remedy set forth in the tenant holding over statute, where
a landlord is seeking a writ of possession of his or her property after the expiration of the
tenancy and does not have current rental license. For the reasons set forth below, we are
not persuaded to judicially foreclose a property owner’s statutory right to repossess his or
her property afforded by the General Assembly under RP § 8-402 under these
circumstances.
First, McDaniel, Berenter, Snodgrass, and Goldsmith all involved the application
of the general rule, based upon principles of public policy, that the courts will not permit
an unlicensed party to enforce a contract where the services for which compensation is
sought are dependent upon a license that is regulatory in nature. As discussed, the summary
ejectment process at issue in McDaniel is based upon a contract between the parties—in
the form of a lease—and involves a landlord’s efforts to utilize the courts to enforce the
tenant’s covenant to pay rent. The landlord’s remedies flow from a contract that is only
42
capable of being performed with a rental license. The remedies—damages in the form of
unpaid rent and a judgment of possession—are based upon the tenant’s breach of the
parties’ lease—specifically, a tenant’s covenant to pay rent. RP § 8-401(e).
Here, Copycat is not seeking to enforce a contract. Under the tenant holding over
statute, the landlord’s right to gain repossession is not based in contract, nor is the remedy
the result of any breach. In fact, the tenant holding over action is only available if there is
no longer a contract in effect. To award possession to the property owner, the court must
make a factual determination that the “tenancy is fully ended and expired[.]” RP § 8-
402(b)(2). In other words, the statutory remedy does not arise from any contractual
breach—it arises from the property owner’s possessory interest in the property.
Second, McDaniel and the line of cases cited therein, all involve an unlicensed
party’s attempt to pursue monetary claims—in the form of rent, unpaid commissions, and
payments for services—where a license was required to perform the contract. In this case,
Copycat did not seek, nor did it receive, a judgment for money damages in the form of
unpaid rent or otherwise. Copycat is seeking the return of its possessory interest in real
property. As we previously noted, property law is derived from three sources: the common
law, statutes, and the Constitution. See supra, Johnson at 248. Balancing a property
owner’s right to repossess the owner’s possessory interest after the expiration of a tenancy
against a government’s interest in maintaining a rental license program for the protection
of the public might, in certain circumstances, trigger a constitutional analysis.25 We do not
25
In the amicus curiae brief of the Maryland Multi-Housing Association, Inc. (the
“Association”), filed in support of Copycat, the Association asserts that “[w]hen a statute
43
need to undertake such an inquiry here—it is sufficient for our purposes to simply note that
there are significant property interests at stake when a property owner is seeking a return
of a reversionary interest—rights that are not implicated in a case involving contract claims
for money damages.
Third, as discussed in part III B. above, the statutory elements and procedure under
the failure to pay rent statute, RP § 8-401—the statute at issue in McDaniel—are very
different from those outlined in the tenant holding over statute, RP § 8-402. The summary
ejectment process permits a landlord to terminate an ongoing tenant relationship based
upon a tenant’s breach. At the time that McDaniel was decided, under the failure to pay
rent statute, the landlord had the right to file a complaint to repossess the property as soon
as the tenant failed to pay rent when due and payable and was not required to provide any
notice to the tenant prior to filing the complaint.26 The appeal period after the entry of a
judgment is four days. RP § 8-401(f).
enacted under the police power of the State, purporting to regulate private property, has the
effect of taking private property completely from an individual for a public purpose, the
doctrine of eminent domain is invoked, and the State must provide just compensation for
the taking.” The Association contends that extending the holding in McDaniel to tenant
holding over actions brought pursuant to RP § 8-402 would result in the absence of a legal
avenue for a property owner to exercise his or her reversionary interest in real property and
would be tantamount to a taking of private property without compensation. The
Association claims that, under our precedent set forth in Muskin v. State Dept. of
Assessments and Taxation, 422 Md. 544 (2011), such a holding would interfere with a
vested private property right in violation of the Maryland Constitution. Given our decision
not to foreclose this statutory remedy as suggested by the Appellants, we do not need to
address whether constitutional rights would be implicated by such a holding.
26
During the 2021 Legislative Session, the General Assembly amended the failure to
pay rent statute to require that the landlord provide written notice to the tenant. 2021 Md.
44By contrast, a tenant holding over action may not be filed unless and until the
landlord and tenant relationship has concluded. Before a tenant holding over action can be
filed, the landlord is required to give 60 days’ notice of an intent to terminate a month-to-
month tenancy. If the tenant believes that the landlord’s termination is based upon
retaliatory conduct prohibited by RP § 8-208.1, the tenant has time to raise these issues as
an independent claim, or as a defense to a property owner’s holding over action. See e.g.,
Lockett, 446 Md. 397.
Fourth, as conceded by Appellants during oral arguments in these cases, in the event
that this Court were to decide to extend the McDaniel reasoning to tenant holding over
actions, a landlord who is not in possession of a current rental license would be left with
no statutory remedy by which to seek repossession of his or her property after the expiration
of a tenancy.27 Appellants also conceded that there may be legitimate reasons for a property
owner to decide that he or she does not want to renew a rental license solely for the purpose
of regaining possession of his or her property after the expiration of a lease. Perhaps in
recognition that a holding that forecloses any ability of an unlicensed landlord to seek the
Laws, ch. 746. The statute also gives the tenant 10 days’ notice to cure before the landlord
may file a complaint. Id. These new tenant protections are set forth in RP § 8-401(c).
27
Where a tenant continues to possess property after the expiration of a lease or as
a month-to-month tenant, a property owner would not be permitted to use the “wrongful
detainer” statute to obtain possession. RP § 14-132. That statute only applies where a
person is holding “possession of real property without the right of possession.” RP § 14-
132(a). A tenant holding over is entitled to possession until a court enters an order
terminating that right. The right to terminate a tenancy under such circumstances is
established by the tenant holding over statute, RP § 8-402. Under the provisions of the
wrongful detainer statute, the statute does not apply if a remedy is available under Title 8
of the Real Property Article—the title governing landlord-tenant relationships.
45
return of its reversionary interest would implicate basic fairness concerns (in addition to
potential constitutional takings assertions), counsel for Appellants suggested at oral
argument that we fashion a judicial holding to require that an unlicensed landlord file a
common law ejectment action and prove that there are “exceptional circumstances”
justifying the return of the property.
As we noted above, we have not found any Maryland cases or cases in other
jurisdictions in which a property owner filed a common law ejectment action in the context
of a residential tenancy to regain possession after the expiration of a lease. The lack of
case law relates to the fact that the common law action of ejectment has undergone a
“statutory modification . . . in every state as a method of testing the right to land.” Baxter
Dunaway, 4 Law of Distressed Real Estate § 48:34 (2021). As observed in treatises on the
subject, “[t]here is little written on the remedy of ejectment. This is probably due to the
fact that it is seldom used today. It is obviously not adapted to meet the needs of lessors
desiring to oust a lessee whose term has expired[.]” Id. at § 48:37.
Having come full circle, we return to our discussion of the common law. Common
law ejectment “is an action at law that tests the right to the possession of real property as
against one who presently possesses it wrongfully. In other words, ejectment is an action
filed by a plaintiff who does not possess the land but has the right to possess it against a
defendant who has actual possession.” 25 Am. Jur. 2d. Ejectment § 1 (2021); see also 9
Maryland Law Encyclopedia, Ejectment § 1 (2021). As discussed supra, at common law,
an ejectment action simply requires that the plaintiff establish that he or she is entitled to
possession and that someone other than the plaintiff is in possession the property without
46
permission. Historically, it was an action at law. See John McHenry, The Ejectment Law
of Maryland, 53 (1822). There is no notice requirement, and the common law is not
concerned with the landlord’s subjective intent or reasons for terminating the tenancy. Nor
does a court weigh “equitable factors” or consider “exceptional circumstances” in a
common law ejectment action to determine whether a property owner should be entitled to
a return of his or her possessory interest when a tenancy has expired.
Appellants’ suggestion that we require that an unlicensed landlord utilize common
law ejectment and prove that “exceptional circumstances” exist to justify the return of his
or her property raises more questions than it answers. In many instances, the rental
licensing process is time consuming and may involve considerable cost to the property
owner. Prior to obtaining a rental license, the property must be inspected, any deficiencies
must be corrected, and then the property must be reinspected. Like many other county and
municipal jurisdictions in our State, the Baltimore City rental license and inspection
program applies to any rental unit, including a single-family dwelling, that is not owner-
occupied. A property might fail to satisfy the standards set forth under a property
maintenance code or housing code for a host of reasons and with a considerable range of
expense, depending upon the nature of the condition giving rise to the violation.
Requiring that a landlord comply with the inspection and licensing process to engage
in rental activities is a legitimate exercise of governmental police powers to ensure that
residential housing complies with public health and safety standards. However, requiring
that a property owner comply with the inspection and rental process to seek the return of his
or her property after the expiration of a tenancy, or prove that “exceptional circumstances”
47
exist to excuse such a requirement, is problematic. We can think of a myriad of reasons that
a property owner might not renew a lease with a tenant, and where it would not be fair or
equitable to require that the property owner undertake compliance with the housing codes
and obtain a rental license simply to recover possession of the property. We will not attempt
to list all of them here.28 A property owner’s subjective reasons for deciding not to renew a
tenancy have never been part of the common law ejectment action. We see no reason to
create a modified common law ejectment action containing such subjective elements, where
the Legislature has enacted statutes that codify all aspects of landlord and tenant
relationships, including modifications to common law ejectment, and has established an
array of remedies available to the tenant to address housing conditions, which in our view,
strike the correct balance between these rights. Moreover, we conclude that crafting the
holding requested by the Appellants would unreasonably interfere with property rights.
E. When an Appeal of a Tenant Holding Over Action is De Novo as Opposed
to On the Record
Finally, Velicky contends that the circuit court erred in conducting the appeal of this
matter as a de novo hearing instead of on the record. Under CJ § 12-401(f), an appeal in a
28
Although we will not identify every instance in which a property owner may not
wish to undergo the rental license process simply to recover possession of his or her
property, a few come to mind. For example, a property owner may want to sell the property
to a third party free and clear of any tenancies. The tenant may have created the condition
giving rise to the housing violation, and the landlord may not wish to renew a tenancy on
that basis. A property owner may not have the financial means to correct a deficient
condition that precludes the rental of the property and instead chooses to get out of the
rental business. A property owner may want to undertake a major renovation to a structure
or demolish it. A property owner may wish to use the property for a different purpose other
than residential rental use. A property owner may wish to occupy the structure for his or
her own personal use.
48
civil case from the District Court of Maryland shall be heard on the record if the amount in
controversy exceeds $5,000.00 or if the parties consent. See also Md. Rule 7-102(b)(1).
Here, as discussed above, Copycat is not seeking a money judgment; it is seeking
repossession of its possessory interest. Our analysis in Purvis v. Forrest Street Apartments,
286 Md. 398 (1979), is instructive.
In Purvis, we were asked to determine whether an appeal to the circuit court of a
landlord’s claim for unpaid rent and repossession of the rented premises was to be tried de
novo rather than on the District Court record. In that case, the landlord initiated a summary
ejectment action in the District Court for possession of the premises. Id. at 400. The
landlord also sought unpaid rent and late payment charges of $487.05. Id. The tenant
claimed that she was entitled to rent credit of $395.00. After the District Court agreed with
the tenant, holding that she was entitled to the rent credit, the landlord filed an appeal in
the circuit court. In the circuit court, the tenant filed a motion to dismiss on the ground that
the landlord failed to transmit the record from the District Court. Id. She maintained that
the appeal was required to be conducted on the record rather than de novo. She asserted
that “in determining the amount in controversy in a case such as this where the plaintiff
landlord was seeking both a sum of money and possession of the premises, the value of the
right of possession should be taken into consideration along with the amount of money
claimed.” Id. The landlord argued that the “court should look only to the amount of money
claimed by the parties, and if neither side was claiming an amount in excess of $500.00,
49
the appeal should be de novo.” Id. at 401.29 The circuit court agreed with the landlord and
after a de novo trial, rendered a judgment in favor of the landlord. Id.We granted certiorari to determine whether the appeal to the circuit court should
have been tried de novo rather than on the record under CJ § 12-401. Examining the
plain language of the statute, we observed that “[u]nder the ‘amount in controversy’ test
for the monetary jurisdiction of an appellate court, under circumstances where the
plaintiff appeals from an adverse decision barring his entire claim, courts ordinarily look
to the demand in the pleading setting forth the plaintiff’s claim, including any
amendments[.]” Id. at 402. “Applying these principles to the instant case,” we
determined that “it seems clear that the value of the right to possession of the premises,
if it can be ascertained, should be considered along with the plaintiff’s initial monetary
demand, in determining the nature of the appellate court’s jurisdiction.” Id. at 403. We
examined the landlord’s statement of claim filed in the District Court and noted that it
“contained two distinct demands, one for $487.05 and the other for possession of the
premises.” Id. Consequently, we held that
both the $487.05 and the value of the right to possession must be considered
. . . for purpose of deciding whether the appeal should have been on the record
or de novo. If the value of the right to possession clearly exceeded $12.95,
then the amount in controversy exceeded $500.00 and the appeal should have
been on the record. In this event, under the circumstances of the case,
dismissal of the appeal would have been the appropriate sanction for failure
to have the record transmitted.
29
When Purvis was decided, CJ § 12-401 established a monetary amount of $500.00
as the threshold for determining whether an appeal to the circuit court from a District Court
judgment was on the record or de novo. Purvis v. Forrest St. Apartments, 286 Md. 398(1979). The monetary threshold is now $5,000.00.
50
Id. at 404. We determined that the value of the right to possession clearly exceeded
$12.95. We observed that, for a landlord to terminate a month-to-month tenancy under
the tenant holding over statute, a landlord would be required to give 30 days’ written
notice. Therefore, we concluded, that “the value of the delay in gaining possession of the
premises . . . is equal to at least one month’s rent.” Id. at 405. We determined that, as
the aggregate value of the landlord’s claims, namely the $487.05 for unpaid rent and the
$167.00, representing the minimum value to the landlord of the right to possession, was
more than $500.00, the appeal should have been on the record and the circuit court should
have granted the motion to dismiss for failure to have the record transmitted. Id.Applying the analysis outlined in Purvis, although Copycat is not seeking a money
judgment, it is seeking to repossess its property. Of course, the possessory interest has
value. On the face of the District Court complaint, Copycat noted that the monthly “rental
value of the premises is $2,750[.]” Although Velicky had a month-to-month tenancy,
under the Baltimore City Public Local Laws, Copycat was required to give 60 days’
notice to terminate the tenancy. Accordingly, “the delay in gaining possession of the
property” was at least 60 days, or two months of rent. In this case, two months of rent
exceeded the $5,000.00 threshold. Thus, the appeal should have been heard on the record.
Because Velicky did not file a motion to dismiss the appeal, but rather, filed a “motion
to set an on the record appeal,” we shall remand the case to the circuit court for it to
conduct an appeal on the record in this matter.
51
IV
Conclusion
In conclusion, we decline to foreclose an unlicensed landlord’s right to seek
repossession of the landlord’s property at the expiration of a tenancy under the tenant
holding over statute. We determine that there is no reason for this Court to judicially
alter the balance between a property owner’s right to repossess the owner’s property after
the expiration of a tenancy, and a tenant’s right to safe and habitable living conditions
during a residential tenancy. That balance has been struck by the Legislature through its
enactment of a comprehensive statutory framework that governs landlord and tenant
relationships, including its modifications to the common law ejectment action and the
remedies afforded to tenants to ensure safe and habitable housing. Under these
circumstances, we will not preclude the availability of a statutory remedy enabling a
landlord to seek repossession of the landlord’s property interest at the conclusion of the
tenancy. We conclude that such a holding would unreasonably interfere with property
rights.
With respect to Velicky’s appeal, we hold that where the appeal from a District
Court judgment involves only a claim for repossession of property with no money
judgment, the value of the right to repossession must be considered in deciding whether
the appeal should be on the record or de novo under CJ § 12-401(f). Because the circuit
52
court erred in conducting a de novo trial, we remand Velicky’s case to the Circuit Court
for Baltimore City for that court to conduct an appeal on the record.
IN CASE NO. 2, JUDGMENT OF THE
CIRCUIT COURT AFFIRMED. COSTS IN
THIS COURT TO BE PAID BY APPELLANT
WALKE.
IN CASE NO. 1, CASE REMANDED TO THE
CIRCUIT COURT WITH INSTRUCTIONS
TO VACATE THE JUDGMENT AND TO
CONDUCT AN APPEAL ON THE RECORD
CONSISTENT WITH THIS OPINION.
COSTS IN THIS COURT TO BE PAID
EQUALLY BY THE PARTIES.
53
Circuit Court for Baltimore City
Case No.: 24-C-20-004248
IN THE COURT OF APPEALS
Circuit Court for Baltimore City
Case No.: 24-C-20-004247
OF MARYLAND
Argued: September 14, 2021
Nos. 1 & 2
September Term, 2021
ANNA VELICKY
v.
THE COPYCAT BUILDING LLC
CHRISTOPHER WALKE
v.
THE COPYCAT BUILDING LLC
Getty, C.J.,
McDonald
Watts
Hotten
Booth
Biran
Adkins, Sally D.
(Senior Judge, Specially
Assigned),
JJ.
Dissenting Opinion by McDonald, J.
Filed: November 29, 2021
The Majority Opinion is thoughtful and thorough, but I have come to a different
conclusion. I agree with much of Judge Watts’ analysis in her dissent, although I also
believe that there remain, despite the Majority Opinion, significant economic and legal
incentives for a landlord in Baltimore City to comply with the rental licensing requirement.
In these cases, a landlord that lacked the rental license required under the Baltimore
City Code found itself in a dispute with some of its tenants about rent that they allegedly
owed. The landlord’s failure to comply with the licensing requirement prevented it from
pursuing an expedited failure-to-pay-rent claim – also called “summary ejectment” –
against those tenants in the District Court. Instead, the landlord resorted to another
expedited statutory remedy – a tenant-holding-over action – and threatened to evict the
tenants if the alleged back rent was not paid. The question before the Court is whether an
unlicensed landlord may use an expedited tenant-holding-over action to recover possession
of a rental property or, instead, may only pursue less-rapid remedies that may be available.
The Majority Opinion holds that the lack of a rental license does not preclude a
landlord from invoking the tenant-holding-over remedy. The Majority Opinion perceives
this as a just result that balances the property right of an unlicensed landlord against the
interest of a tenant whose lease has expired.
In my view, the Court’s case law makes clear that, in order to be eligible for the
expedited statutory remedies available to landlords in the District Court – such as a tenant-
holding-over action – a landlord must have a rental license required under local law if the
license is intended to ensure the health and safety of rental housing. An offensive lineman
on a football team, if he is lucky, might recover a fumble and carry it into the end zone to
score a touchdown. But he is ineligible to catch a forward pass – the expedited way to the
end zone – under the rules of the game. Here, the Court has sanctioned the use of an
expedited eviction remedy by one who, in my view, is ineligible – an unlicensed landlord.
Common law ejectment and expedited statutory remedies
As the Majority Opinion indicates, the common law action of ejectment developed
over time in England as a means for a landlord to oust a tenant from the landlord’s property.
Majority slip op. at 14-16. That common law action, as modified by an English statute,
became part of the law of Maryland under the State Constitution. Maryland Declaration
of Rights, Article 5.
As the Court has previously explained, the General Assembly subsequently enacted
a “trilogy of statutes providing landlords an expedited remedy for the recovery of leased
premises.” Brown v. Housing Opportunities Comm’n, 350 Md. 570, 576 (1998). Pertinent
to this case, one of those expedited remedies is a tenant-holding-over action under
Maryland Code, Real Property Article (“RP”), §8-402.1 However, common law ejectment,
which is not an expedited remedy, remains a part of the law of Maryland. See Glorius v.
1
The other two members of the trilogy are a failure-to-pay-rent action – commonly
known as “summary ejectment” – under RP §8-401 and a breach of lease action under RP
§8-402.1.
Copycat argues that a tenant-holding-over action is not an expedited process
because a landlord must provide advance notice terminating the tenant’s lease and the
action does not proceed on as rapid a timetable as an action for failure to pay rent under
RP §8-401. The Majority Opinion makes a somewhat similar point. Majority slip op. at
44-45. However, as with a summary ejectment action, no pretrial discovery is permitted
in a tenant-holding-over action. Maryland Rule 3-711. Copycat does not dispute that a
tenant-holding-over action typically proceeds on a tighter timetable than a common law
cause of action.
2
Watkins, 203 Md. 546, 549 (1954) (“Where the object of a proceeding is to obtain
possession, the remedy is ejectment.”); Allan W. Rhynhart, Notes on the Law of Landlord
and Tenant, 20 Md. L. Rev. 1, 46 (1960) (upon giving notice of termination of a lease,
landlord entitled to summary remedy against tenant in addition to ejectment).
Regulation of landlord-tenant relationship through licensing
A number of jurisdictions in Maryland have elected to regulate the landlord-tenant
relationship by enacting a licensing requirement and making a license contingent on
compliance with various health and safety related provisions. Baltimore City is one such
jurisdiction.
In McDaniel v. Baranowski, 419 Md. 560 (2011), this Court held that a residential
landlord’s ability to invoke one of the expedited remedies for ousting a tenant – summary
ejectment under RP §8-401 based on the tenant’s failure to pay rent – was contingent on
the landlord having the license required by the local jurisdiction when that license has a
regulatory, rather than merely revenue-raising, purpose.2 “[O]nce we determined that the
purpose of the [licensing] statute was to eliminate a perceived harm, … we recognized that
an unlicensed person should not be afforded the benefit of swift justice….” 419 Md. at
583. Thus, “in order to invoke the facile process of summary ejectment, a landlord in those
2
In McDaniel, the rental unit was located in Anne Arundel County; a rental license
was required under County law. As the Majority Opinion explains, the holding in
McDaniel was largely an application of previous decisions of this Court that made
compliance with a licensing requirement in various contexts a prerequisite to access to
certain remedies. Majority slip op. at 35-42.
3
jurisdictions requiring licensure must affirmatively plead and demonstrate that he is
licensed … in order to initiate the summary ejectment process.” Id. at 587.
Like the Anne Arundel County Code, the Baltimore City Code requires that a person
obtain a rental license as a prerequisite to offering to rent, or renting, a dwelling unit in the
City. As a condition of that license, the rental property must pass an inspection to ensure
that it complies with various health and safety standards. See Baltimore City Code, Article
13 (Housing and Urban Renewal), §5-1 et seq. An unlicensed landlord faces potentially
significant penalties under the ordinance. Id., §5-17 (order requiring that premises be
vacated), §5-25 (enforcement by citation), §5-26 (prosecution for misdemeanor carrying
fine of up to $1,000 per day). In addition, consistent with the holding in McDaniel, this
Court has held that a landlord in Baltimore City must have a rental license from the City to
prosecute a failure-to-pay-rent action under RP §8-401. Pettiford v. Next Generation Trust
Serv., 467 Md. 624 (2020).
Application to this Case
The question before us in this case is whether another of the trilogy of expedited
remedies – a tenant-holding-over action – is also contingent on compliance with a rental
licensing requirement.
In my view, the Court should give the same answer to an unlicensed landlord in this
case with respect to a tenant-holding-over action as the Court did in McDaniel with respect
4
to a failure-to-pay-rent action. The Majority Opinion appears to reach a contrary
conclusion for two primary reasons.3
First, it observes that an unlicensed landlord may simply want to recover possession
of the leasehold for myriad reasons that have nothing to do with renting the property out –
for example, sale of the property free and clear of the tenancies, departure from the rental
business, renovation of the property for a different purpose, and so on. Majority slip op. at
45-48 & n. 28. Requiring the landlord to belatedly obtain a license that the landlord does
not intend to use simply in order to file a tenant-holding-over action to recover the property,
the Majority Opinion reasons, makes no sense. However, such a requirement makes sense
if one views it as a matter of choice on the landlord’s part. A landlord who failed to obtain
a license – or, as in this case, failed to transfer the license prior to expiration when it elected
to change its form of business organization from a sole proprietorship to a limited liability
company – essentially made a choice that affected its legal relationship to its tenants and
others. If it now wants to evict tenants for allegedly failing to pay their rent, it has a further
choice either to use an expedited method by obtaining that license or, if it is content to
proceed by a normal litigation timetable, to file a common law ejectment action.4
3
The Majority Opinion also distinguishes McDaniel in that, unlike these cases, the
unlicensed landlord in McDaniel asserted a monetary claim against the tenant. Majority
slip op. at 43-44. However, the landlord in McDaniel did seek, and obtain, a judgment for
possession of the rental unit under RP §8-401, and a motion to revise that judgment was
the subject of the appeal. 419 Md. at 573-74. The Court’s opinion did not turn on the fact
that the landlord and tenant had also made monetary claims against each other.
4
In its brief in this case, Copycat suggested that its tenants had stymied its effort to
renew its rental license under its new form of business organization – that such a route was
not open to it. However, there is no evidence to that effect in the record before us. It may
5
In these particular cases, there is no indication that Copycat wishes to do anything
other than continue to rent out the units in its building. Moreover, the records in both of
these consolidated cases contain a letter Copycat management emailed to the tenants. That
correspondence makes clear that Copycat’s purpose was to collect back rent and that it
viewed the tenant-holding-over action as equivalent to a failure-to-pay-rent action.
Second, the Majority Opinion distinguishes the expedited tenant-holding-over
action under RP §8-402 from the two other expedited actions – failure to pay rent (RP §8-
401) and breach of lease (RP §8-402.1) – on the basis that the latter two actions are based
on contract, while a tenant-holding-over action applies when a contract has expired.
Majority slip op. at 18, 23, 42-43, 45. However, a tenant-holding-over action is rooted in
the contractual relationship that existed and that continues to exist – at least in part –
between the landlord and tenant. As illustrated in this case, the contract may continue to
govern, or purport to govern, the relationship of the parties even after the stated term of the
lease has expired. The form lease used by Copycat included a paragraph entitled
“TENANT HOLDING OVER”, which stated that “the tenant agrees that all of the
obligations of the tenant and all rights of the landlord” would continue after the term of the
lease if the tenant remained on the premises. The Majority Opinion appears to have
overlooked that provision.
well be that an action in which discovery is available would have developed the record in
that respect.
6
Conclusion
Copycat states that it is not seeking to collect back rent in these actions, that it plans
to renovate the building and obtain a rental license, and that it simply wishes to vindicate
its property rights. Copycat’s representations as to its current intentions may be true, but
the conclusion of the Majority Opinion will apply equally to an unlicensed landlord with
no intention of abiding by the licensing requirement. While we may indulge the
assumption that a particular person or entity acts with the best of intentions, the law does
not. As Oliver Wendell Holmes, Jr., once said:
If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequences which such
knowledge enables him to predict, not as a good one, who finds his reasons
for conduct, whether inside the law or outside of it, in the vaguer sanctions
of conscience.
* * * * *
[T]he bad man … does not care two straws for the axioms [of ethics]
or deductions [from principles], but … he does want to know what the …
courts are likely to do in fact.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459-61 (1897).
I would hold that Copycat and any other unlicensed residential landlord in Baltimore
City, while unlicensed, may not invoke RP §8-402, and that its recourse, upon proper proof,
must be to the common law action of ejectment.
7
Circuit Court for Baltimore City
Case No.: 24-C-20-004248
Circuit Court for Baltimore City
IN THE COURT OF APPEALS
Case No.: 24-C-20-004247
OF MARYLAND
Argued: September 14, 2021
Nos. 1 & 2
September Term, 2021
______________________________________
ANNA VELICKY
v.
THE COPYCAT BUILDING LLC
______________________________________
CHRISTOPHER WALKE
v.
THE COPYCAT BUILDING LLC
______________________________________
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Adkins, Sally D. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Dissenting Opinion by Watts, J.
______________________________________
Filed: November 29, 2021
Respectfully, I dissent. The cases before the Court are not about a landlord trying
to get possession of apartments so that the landlord can sell an apartment building or use
the building for a purpose other than residential leasing. Instead, the cases are about a
landlord of a multi-tenant apartment building trying to obtain possession of two apartments,
despite not having the license legally required to lease apartments and collect rent, so that
the landlord can re-rent the apartments to new tenants and stay in the rental business. The
Copycat Building LLC (“Copycat”), Respondent, has never obtained a license under
Baltimore City Code, Art. 13, § 5-4(a), and as such, Copycat cannot legally rent apartments
or collect rent. Yet, despite not having a license, Copycat has for years rented units in an
apartment building and is now attempting to use tenant holding over actions under Md.
Code Ann., Real. Prop. (1974, 2015 Repl. Vol.) (“RP”) § 8-402 to get possession of the
apartments occupied by Anna Velicky and Christopher Walke, Petitioners.
In these cases, the record demonstrates that Copycat will continue in the residential
leasing business. In Walke, at a trial de novo in the circuit court, Copycat’s counsel
represented that Copycat requested a license, but the request was denied because of
building code violations, and Copycat sought possession of Walke’s apartment because it
needed to remove tenants to abate the violations.1 Almost immediately after making this
1
Copycat has never offered a valid explanation for not obtaining a license. On brief
in this Court, Copycat represents that the previous owner of the apartment building, Charles
Lankford, had a license and that the 2018 transfer of the building from Lankford to Copycat
(an LLC that he owns) caused the license to lapse. This version of events is recounted in
the majority opinion. See Maj. Slip Op. at 3. But, this version of the events does not
explain why Copycat, even at the time of oral argument in this case, continued to be an
unlicensed landlord. The circumstance remains that Copycat, since becoming the owner
assertion, Copycat’s counsel indicated that Copycat should be able to rent the apartment to
somebody else for a monthly fee and get the license, then Copycat would be entitled to
collect rent. Walke’s counsel responded that Copycat’s counsel’s statement was a
concession that Copycat’s motive was to evict a nonpaying tenant and replace the tenant
with one who was unaware that Copycat was not licensed and that Copycat suggesting that
it was “going to empty out an entire building to make repairs” was “a pretty remarkable
statement to make.” Copycat’s counsel immediately denied having made the statement.
Regardless of the dispute between the attorneys over whether Copycat intended to empty
the entire building or whether Copycat’s counsel had, in fact, admitted that Copycat
intended to proceed unlicensed, Copycat’s counsel’s remarks showed that Copycat did not
plan to keep Walke’s apartment vacant but instead wanted to rent it to a new tenant. This
exchange demonstrates that Copycat very much intended to remain in the residential
leasing business.
Allowing Copycat to evict Petitioners in a tenant holding over action under RP § 8-
402 without a license essentially renders the licensing requirement of Baltimore City Code,
Art. 13, § 5-4(a) meaningless and defeats its purpose of ensuring that rental properties are
fit to live in. As a result of the majority opinion, Copycat and other landlords will have
very little incentive to get licenses, which would require bringing rental properties up to
of the building, has never had a license and has operated as a landlord renting units in an
apartment building in Baltimore City without a license.
-2-
code.2 To be sure, there are statutes that allow tenants, who have the wherewithal, to seek
recourse from abusive landlords or uninhabitable rental property conditions, e.g., the rent
escrow statute (RP § 8-211), the anti-retaliation statute (RP § 8-208.1), and the Maryland
Consumer Protection Act (Md. Code Ann., Com. Law (1975, 2013 Repl. Vol., 2021
Supp.) § 13-101, et seq). These statutes are available, however, to provide avenues of
potential remedy once a tenant has suffered an actionable injury by living in a rental
property that may be plagued with problems. The rental license requirement is different.
A rental license is designed to prevent rental property from being maintained in an unsafe
and uninhabitable manner in the first place and ensure that rental property is offered and
maintained in conformity with housing code requirements to prevent injury to tenants. The
suggestion that a landlord should be permitted to evict tenants in a tenant holding over
action under RP § 8-402 without obtaining a rental license regardless of whether the
landlord intends to re-rent property because, if injured, tenants have statutory remedies
reinforces the conclusion that as a result of the majority opinion, there will be little
incentive for landlords to actually obtain licenses and comply with housing code
requirements. And tenants will be vulnerable to living in hazardous, uninhabitable
conditions, which the licensing requirement was intended to prevent.
Citing an article that was written about the Copycat building over nine and a half
2
Although there are penalties prescribed in the Baltimore City Code for a landlord’s
failure to obtain a rental license, see Balt. City Code, Art. 13, §§ 5-15, 5-25, 5-26, the
effectiveness of the penalties depends on enforcement of the Code provisions.
-3-
years ago in March 2012,3 the majority opinion paints a rosy picture of the building as a
seemingly ideal residence for artists and musicians4 and points out that the tenants in the
instant cases did not make complaints about habitability. See Maj. Slip Op. at 3 n.2, 5 n.6,
7 n.8. This view is inconsistent with information that has been recently reported about the
condition of the Copycat building and about landlords seeking to use tenant holding over
actions to avoid obtaining rental licenses. More recent articles about the Copycat building
are publicly available just as is the nine-and-a-half-year-old article relied on by the
Majority. Based on the older article, the majority opinion states that the Copycat building
is “[c]onsidered a landmark in the Baltimore arts community” and that the building is an
“industrial warehouse [that] was converted into residential artist lofts that are rented to
artists and musicians in the city’s Station North Arts and Entertainment District.” Maj.
Slip Op. at 2-3 (footnote omitted).
More recent articles, however, indicate that during the COVID-19 emergency,
tenants of the Copycat building lost the ability to pay rent and, according to the tenants, the
owner of the building began taking them to what is known as “tenant holding over court,
3
John Asante, Peek Inside The Copy Cat Building: Where Baltimore Artists Work
— And Live, NPR (Mar. 22, 2012), available at https://www.npr.org/sections/
pictureshow/2012/03/22/149061691/peek-inside-the-copy-cat-building-where-baltimore-
artists-work-and-live [https://perma.cc/2XTU-L2E3]. As the majority opinion notes,
“[a]ccording to the citations issued by Baltimore City, the Copycat building is improved
with 58+ dwelling units.” Maj. Slip Op. at 3 n.2 (cleaned up).
4
The article the majority opinion cites describes the Copycat building as follows:
“The six-floor Victorian style building was converted to residential housing for artists and
musicians in which the residents are free to design their loft spaces as they choose. In any
given room you might find a skate ramp, a band rehearsing, a photo studio, a sculpture in
progress.” Maj. Slip Op. at 3 n.2 (cleaned up).
-4-
through which [Copycat] can circumvent both state and federal moratoriums on residential
evictions for failure to pay rent.” Hallie Miller, During Maryland rent moratorium, more
landlords using legal ‘loophole’ as means to evict, The Baltimore Sun (Dec. 30, 2020),
https://www.baltimoresun.com/business/real-estate/bs-bz-maryland-tenant-holding-over-
20201230-ji4gzcz7qbe2hcks5spifdi3dq-story.html. “In tenant holding over court, a
landlord can take action against a tenant whose lease has expired, without having to provide
a codified reason for not extending or renewing the lease.” Id. “Tenant advocates and
legal experts said the recourse functions as a loophole for landlords seeking to evict during
the public health crisis[.]” Id.5 In Velicky, the Public Justice Center, the Homeless Persons
Representation Project, Inc., and the Pro Bono Resource Center of Maryland filed an
amicus brief in which they argue that “[t]his case beckons this Court’s attention to the use
of [tenant holding over] actions as a work-around for unlicensed landlords to demand
illegal rent on threat of eviction, and follow through with evicting tenants[.]”
Permitting Copycat to evict Petitioners in a tenant holding over action under RP §
8-402 without a license creates a loophole to the licensing requirement in that unlicensed
5
According to The Baltimore Sun article, “Baltimore Housing spokeswoman
Tammy Hawley said [Copycat] did not receive a rental license in 2020 due to outstanding
violation notices issued on the CopyCat property, including inadequate lighting and
ventilation and improperly constructed lofts.” Hallie Miller, During Maryland rent
moratorium, more landlords using legal ‘loophole’ as means to evict, The Baltimore Sun
(Dec. 30, 2020), https://www.baltimoresun.com/business/real-estate/bs-bz-maryland-
tenant-holding-over-20201230-ji4gzcz7qbe2hcks5spifdi3dq-story.html. The inclusion of
information from The Baltimore Sun article about the Copycat building is not meant to
imply that this Court or any court has taken judicial notice of the information pursuant to
Maryland Rule 5-201 or that the information is part of the record in the cases. The
information is included in the dissent to provide balance.
-5-
landlords will be able to collect an indefinite amount of rent from holdover tenants despite
not having the license that is legally required to collect rent. Copycat is incorrect in
suggesting that, in a tenant holding over action under RP § 8-402, a landlord can obtain
only possession, not rent. Tenant holding over actions under RP § 8-402 are not just about
possession—the landlord can also obtain all of the rent for the entirety of the holdover
period, no matter how long it lasted. RP § 8-402(a)(2) expressly provides that, in a tenant
holding over action under RP § 8-402, “[t]he damages awarded to a landlord against the
tenant . . . may not be less than the apportioned rent for the period of holdover at the rate
under the lease.” Nothing in the statute limits the amount of rent that a court can award a
landlord in a tenant holding over action under RP § 8-402. A landlord could obtain months’
or even years’ worth of rent, despite not having a license during any part of the holdover
period. By way of example, an unlicensed landlord could maximize the amount of rent
that it could collect by renting out an apartment with a short-term written lease, allowing
the tenant to hold over, continuing to charge rent, and using a tenant holding over action
under RP § 8-402 to get both possession and any rent due during the holdover period.6
6
In Velicky, the written lease expired on July 31, 2018, and Velicky became a
month-to-month tenant thereafter. On April 30, 2020, Copycat sent Velicky written notice
of termination of Velicky’s month-to-month tenancy and a sixty-day notice to vacate the
premises, meaning that Velicky had been a tenant holding over for almost two years and
would have been liable for any rent that had accrued during the time period. Under the
Majority’s holding, Copycat, an unlicensed landlord, could recover any rent due from
Velicky from August 2018 to approximately June 30, 2020 in a tenant holding over action.
In Walke, Copycat did not offer Walke a written lease. Because there was no written
agreement, Walke’s tenancy was one year from the date of first occupancy—i.e., from
March 6, 2019 to March 5, 2020. Copycat sent Walke written notice of termination of his
month-to-month tenancy and a sixty-day notice to vacate his apartment as of August
-6-
As a result of the majority opinion, tenant holding over actions under RP § 8-402
may be used by unlicensed landlords to enforce rent obligations instead of summary
ejectment actions under RP § 8-401, in which licenses are required pursuant to our holding
in McDaniel v. Baranowski, 419 Md. 560, 563, 19 A.3d 927, 929 (2011). Copycat all but
acknowledged as much in June 15, 2020 e-mails to Petitioners in which Copycat demanded
rent from Petitioners, expressly threatened to evict them, and stated:
ONLY Rent Court and apartment buildings whose mortgage is Federally
financed are part of the “Eviction Moratorium”. We use Tenant Holding
Over Court and our mortgage is NOT federally funded. The Rent Strike
website clearly lists by zip code, each apartment building that cannot
participate in evictions. We are NOT included in that listing. Hence, there
will be no delay on our end as soon as courts reopen.
(Capitalization in original). In referring to “Rent Court” as distinct from “Tenant Holding
Over Court[,]” Copycat clearly indicated that it uses tenant holding over actions under RP
§ 8-402 instead of summary ejectment actions under RP § 8-401. It is evident that Copycat
contemplated in advance that tenants would hold over and remain subject to the
requirement to pay rent without the need for Copycat to obtain a license and keep the
premises habitable, as required under our holding in McDaniel to prevail in a summary
ejectment action under RP § 8-401. Indeed, Velicky’s lease contained a provision titled
“TENANT HOLDING OVER” stating that, if Velicky did not surrender the apartment
upon the termination of the lease, Velicky would “become a tenant from month to
month”—i.e., a holdover tenant—and would still be required to pay rent every month at a
2020. Thus, under the Majority holding, Copycat could recover from Walke in a tenant
holding over action any rent due from March 5, 2020 to August 2020 while not being
licensed.
-7-
minimum at the rate that applied just before the lease terminated.7
In the same vein, at oral argument in Velicky, Copycat’s counsel indicated that he
had recently gotten calls from potential clients concerning matters that the Court’s decision
in the case would affect. It would appear that Copycat is not the only unlicensed landlord
that may potentially want to use tenant holding over actions under RP § 8-402. In my view,
a holding from this Court stopping improper end-runs around the license requirement
mandated by McDaniel would have vastly broader application than a holding allowing an
unlicensed landlord to obtain possession of an apartment in a tenant holding over action
under RP § 8-402 on the theory that a landlord may have a reason to regain possession of
the apartment, other than collecting rent as damages and leasing the apartment to a new
tenant without a license.
The record in both of the instant cases is devoid of any indication that Copycat plans
to sell or repurpose the apartment building—i.e., to gain possession of the building and get
out of the residential leasing business. In other words, the record lacks any evidence that
Copycat will not continue to be a landlord subject to the license requirement and continue
renting the apartments at issue in the future. Surely, if it had such plans, Copycat would
7
The lease provision states in part:
If the tenant shall not immediately surrender possession of the premises at
the termination of this lease, the tenant shall become a tenant from month to
month, provided rent shall be paid (in advance) to and accepted by the
landlord at the rate of rental payable hereunder just prior to the termination
of this lease plus the greater of 200% or the amount as set by the courts: but
unless and until the landlord shall accept such rental from the tenant, the
landlord shall continue to be entitled to re-take possession of the premises
without any prior notice whatever to tenant.
-8-
have brought them to our attention. The sheer size of the building offers confirmation that
Copycat has no plans to leave its widescale rental business. The apartment building
contains fifty-eight dwelling units and eighteen rooming units, sits on a lot whose area is
more than 54,000 square feet, has two different addresses on two different streets, and has
five floors in one section and six floors in another. The large capacity of the apartment
building underscores both the potential risk of allowing Copycat to continue operating
without a license and the circumstance that Copycat has no plans to gain possession of the
premises and repurpose the building.
More importantly, even in a scenario in which an unlicensed landlord does not want
to bring an apartment building up to code because the landlord plans to repurpose the
building—which, again, is not the case here—an unlicensed landlord may regain
possession of premises after a lease expires by means other than a tenant holding over
action under RP § 8-402. Copycat is wrong in contending that a tenant holding over action
under RP § 8-402 is the only action in which an unlicensed landlord may obtain possession
of premises from a tenant holding over. An unlicensed landlord may also obtain possession
of premises from a tenant holding over in an ejectment action under the common
law. Statutory landlord-tenant actions—such as summary ejectment actions under RP § 8-
401, tenant holding over actions under RP § 8-402, and actions for breach of lease under
RP § 8-402.1—are “alternatives to” ejectment actions under the common law. Shum v.
Gaudreau, 317 Md. 49, 59, 562 A.2d 707, 712 (1989). RP § 8-402(a)(4) states that
“[n]othing contained herein is intended to limit any other remedies which a landlord may
have against a holdover tenant under the lease or under applicable law.” RP §§ 8-401 and
-9-
8-402 became part of the Real Property Article in 1974, see 1974 Md. Laws 347, 349 (Ch.
12, S.B. 200), RP § 8-402.1 has existed since 1978, see 1978 Md. Laws 1643 (Ch. 478,
S.B. 570), and landlords have still been able to file ejectment actions under the common
law in the decades since then.
We have repeatedly recognized that the elements of an ejectment action under the
common law are that the plaintiff “must have the legal title to the land and must have the
right of possession.” Janoske v. Friend, 261 Md. 358, 364, 275 A.2d 474, 477 (1971)
(citation omitted); see also Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 398, 250 A.2d
69, 73 (1969) (“In this State it is well settled that, in actions of ejectment, the plaintiff must
show that he has a legal title, and the right of possession in the land.” (Cleaned up));
Lannay’s Lessee v. Wilson, 30 Md. 536, 546 (1869) (“To maintain the [ejectment] action,
the claimant must be clothed with both the legal title, and the immediate right of possession.
These are the essential conditions of success.” (Citation omitted)); Ejectment, Black’s Law
Dictionary (11th ed. 2019) (“The essential allegations in an action for ejectment are that
(1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or
ousted, and (3) the plaintiff has suffered damages.”).
As their similar names suggest, an ejectment action under the common law and a
summary ejectment action under RP § 8-401 have two remedies in common—namely,
recovery by a landlord of the premises that a tenant is occupying as well as rent. As we
observed in Blevins v. Mullan Contracting Co., 235 Md. 188, 193, 201 A.2d 348, 351
(1964), both possession and damages “are recoverable in ejectment.” In Brown v. Hous.
Opportunities Comm’n of Montgomery Cty., 350 Md. 570, 578, 714 A.2d 197, 200 (1998),
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we explained that, “[a]lthough initially designed to allow an ousted tenant to recover
possession,” ejectment actions under the common law “became, in time, usable by
landlords as well, to recover possession from their tenants.” (Footnote omitted). This
contradicts the assertion that, if we applied our holding in McDaniel to tenant holding over
actions under RP § 8-402, unlicensed landlords will have no way to obtain possession of
premises from tenants holding over. The majority opinion states:
[A]lthough a common law ejectment action may, in theory, still exist in the
landlord-tenant context as a possible alternative to the statutory remedies, we
have found no Maryland cases in which common law ejectment has been
utilized by a property owner to recover possession of a residential property
from a tenant after the conclusion of a tenancy.
Maj. Slip Op. at 17. In my view, this is likely so because landlords, both licensed and
unlicensed, have been able to use statutory tenant holding actions under RP § 8-402 to
obtain both rent and possession of property. The majority opinion will pave the way for
unlicensed landlords to continue to do so.
On a related note, Copycat is wrong in arguing that McDaniel is distinguishable
from the circumstances of the instant cases because the landlord in that case attempted to
enforce a contract—i.e., the lease—whereas Copycat is simply seeking possession of
Petitioners’ apartments after the leases have terminated. In McDaniel, 419 Md. at 583-85,
19 A.3d at 941-42, we held that, just as a builder cannot obtain a mechanic’s lien without
a license to operate the builder’s business under Harry Berenter, Inc. v. Berman, 258 Md.
290, 293, 265 A.2d 759, 761 (1970), a landlord cannot prevail in a summary ejectment
action under RP § 8-401 without a license to operate a rental dwelling where such a license
is required by local ordinance. To be sure, we pointed out “that the failure to obtain a
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license as required by local ordinance ordinarily renders the contract invalid and
unenforceable.” Id. at 583, 19 A.3d at 941. But, in McDaniel, we addressed contracts out
of necessity because the case involved a lease. Our decision was based not only on the
existence of the lease, but also on the principle that requiring landlords to be licensed would
assure compliance with local habitability ordinances. We determined that the relevant
sections of the Anne Arundel County Code were “designed to insure the safety and
habitability of the premises, namely that the dwelling is clean, sanitary, fit for human
occupancy, and in compliance with . . . State and County law.” Id. at 564-65, 19 A.3d at
929-30 (cleaned up).
Similarly, here, under Baltimore City Code, Art. 13, § 5-6, a license to operate a
rental dwelling cannot be issued or renewed unless the premises have passed an inspection,
are in compliance with all laws and regulations concerning lead-based paint, and are not
subject to any non-abated violation notice or order issued under the Baltimore City
Building, Fire, and Related Codes Article. Our holding in McDaniel had the result of
protecting tenants from the potential hazards of premises that are not maintained in
accordance with local habitability laws. There is no valid reason not to provide tenants in
tenant holding over actions under RP § 8-402 with the same protections as tenants in
summary ejectment actions under RP § 8-401. In any case, to the extent that the majority
opinion concludes that our holding in McDaniel depended on the existence of a contract,
our holding in McDaniel would still apply in Velicky because Velicky’s lease expressly
provided that rent would continue to be due if Velicky became a holdover tenant; i.e., the
lease in Velicky applied to the tenant holding over period. In addition, the tenant holding
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over relationship is based on the existence of there having been a lease, i.e., a contract.
There is no merit in Copycat’s apparent attempt to distinguish McDaniel on the
ground that, unlike summary ejectment actions under RP § 8-401, tenant holding over
actions under RP § 8-402 are not expedited. The expedited nature of summary ejectment
actions under RP § 8-401 was but one reason for our holding in McDaniel. In addition,
Copycat is incorrect in asserting that tenant holding over actions under RP § 8-402 are not
expedited. We have repeatedly expressly recognized that tenant holding over actions under
RP § 8-402 are indeed expedited. See Chateau Foghorn LP v. Hosford, 455 Md. 462, 492,
168 A.3d 824, 841 (2017); Brown, 350 Md. at 576-77, 714 A.2d at 200; Johnson v. Swann,
314 Md. 285, 291, 550 A.2d 703, 706 (1988). As we stated of RP §§ 8-401 and 8-402 in
Chateau Foghorn, 455 Md. at 492, 168 A.3d at 841:
The eviction proceedings under both statutes are expedited and summary in
nature—in order to secure a judgment in his favor, a landlord need prove
only nonpayment of any amount of rent under § 8-401, or a tenant holding
over after the expiration of a lease and proper notice to quit under § 8-402.
(Citing Brown, 350 Md. at 576-77, 714 A.2d at 200).
The plain language of RP § 8-402 confirms that tenant holding over actions under
RP § 8-402 are expedited, just like summary ejectment actions under RP § 8-401. Like a
summary ejectment action under RP § 8-401, a tenant holding over action under RP § 8-
402 is brought in the District Court. See RP §§ 8-401(b)(2), 8-402(b)(1)(i). As in a
summary ejectment action under RP § 8-401, a jury trial cannot take place in a tenant
holding over action under RP § 8-402 unless the amount in controversy is sufficient and
the tenant pays rent during the pendency of the action. See RP §§ 8-601, 8-118(a). In both
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a summary ejectment action under RP § 8-401 and a tenant holding over action under RP
§ 8-402, there is a tight deadline for the losing party to appeal to a circuit court—four days
in a summary ejectment action under RP § 8-401 and ten days in a tenant holding over
action under RP § 8-402. See RP §§ 8-401(h)(1), 8-402(b)(2)(ii). And, in a tenant holding
over action under RP § 8-402, upon application of either party, the circuit court must
schedule a hearing on an appeal within five to fifteen days. See RP § 8-402(b)(2)(iv). As
a practical matter, a tenant holding over action under RP § 8-402 is no longer or more
complicated than a summary ejectment action under RP § 8-401 in any meaningful way.
In permitting unlicensed landlords to use tenant holding over proceedings under RP
§ 8-402, the majority opinion concludes the General Assembly, “through its enactment of
a comprehensive statutory framework governing residential landlord and tenant relations,
has achieved the balance between a landlord’s right to recover the landlord’s property
interest at the conclusion of a tenancy and a tenant’s right to safe and habitable housing
conditions during the tenancy.” Maj. Slip Op. at 1-2.8 The problem with this is that there
is no indication in the plain language of RP § 8-402 that the General Assembly has ever
considered whether unlicensed landlords are able to pursue tenant holding over actions
8
The Majority concludes that its holding would prevent an unreasonable
interference with property rights and indicates that it can think of “a myriad of reasons”
that a landlord might not renew a lease with a tenant, such as the landlord wanting to sell,
demolish, or live in the property. See Maj. Slip Op. at 48 & n.28. The reality is that none
of this speculation applies to the facts of these cases. The Majority’s determination that
there is no reason to judicially alter the balance between a landlord’s right to repossess
property after the end of a tenancy and tenant’s right to safe and habitable living conditions
is based largely on circumstances that do not exist in either case before the Court and are
purely hypothetical in nature.
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where a license is required by local ordinance. In light of the Majority’s holding, though,
it may be that the General Assembly will want to review the issue of whether unlicensed
landlords should be able to use tenant holding over actions under RP § 8-402 to recover
rent and possession of property and circumvent local licensing requirements that ensure
the safety and habitability of rental properties.
Overall, adopting Copycat’s position allows unlicensed landlords to circumvent our
holding in McDaniel by obtaining rent as damages and possession of rental property in a
tenant holding over action under RP § 8-402, without having the license that is legally
required to lease property and collect rent. This loophole presents an obvious risk of danger
to tenants, as unlicensed landlords may now use tenant holding over actions under RP § 8-
402 to recover rent and possession of property and lease the property again, with little
incentive to eliminate hazards on the premises and obtain licenses.
For the above reasons, respectfully, I dissent.
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The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/1a21cn.pdf