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